text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
'The opinion of the court Avas delivered by
Brewer; J.:
This Avas an action of false imprisonment. On the 4th of January 1871 Gillett sued Thiebold before a justice of the .peace. He filed Avith the justice the folloiving .affidavit:
[Title, and Venue.] “Henry W. Gillett makes oath that the claim in this action is on account for liquors sold for $137.25; and he also makes oath that the claim is just, and .that Henry W. Gillett, the plaintiff, ought to recover the amount of $137.25; lie also makes oath that the said Jack Thiebold, the defendant, has disposed of his property with intent to defraud his creditors. He is justified in the belief •of the above facts from the following considerations: that the defendant, living at Lawrence, lately sold all his property known to affiant, and converted the same into money, and has left Lawrence, his late place of business and residence, .and made no provision for the payment of his debts.
“Henry W. Gillett.
•“Sworn to before me, and subscribed in my presence, this 4th day of January, 1871. Richard R. Rees, J. P
Upon that affidavit an order of arrest was issued, and Thiebold brought before the justice. A trial was immediately had, judgment entered in favor of Gillett for $137.25, .and an execution, with an order of arrest, issued by the justice. Nothing being paid on the execution, and no property found, Thiebold ivas committed to jail whence he was discharged on habeas corpus, after two or three days, by the judge of the district court of the first judicial district. 'Thereupon he brought this action for false imprisonment.
Two important cpiestions are presented. The first is this: Was the affidavit sufficient to justify the issue of the order of arrest? An affidavit for an order of attachment is sufficient if it avers positively the existence of any of the grounds named in the statute. Reyburn v. Bassett, 2 Kas., 227. But it is otherwise in an affidavit for an order of arrest. There the statute provides that “the affidavit shall also contain a statement of the facts claimed to justify the belief in the existence” of the grounds .set forth for the arrest. Justice’s act, Gen. Stat., 779, §18. This portion of the statute is of equal force with the rest. Respect must be paid to its' requirements, or the proceedings will not stand. Nor is it a meaningless provision. It is not .satisfied by a statement of any facts. There must be an allegation of the existence of such facts as, uncontradicted or unexplained, show that the charge of fraud made in the affidavit is true. A fact or facts which simply raise a suspicion of guilt, or point to the pos sibility of fraud, are insufficient. A chain of circumstances which is consistent with a fraudulent purpose, will not be enough. The facts stated must establish the fraud. Nothing less than this will give reasonable effect to the requirement of the statute. Frost v. Willard, 9 Barb., 440; Ex parte Smith, 16 Ill., 348; Gorton v. Frizzell, 20 Ill., 291; Spice v. Steinrick, 14 Ohio St., 213, and cases there cited. Tried by this rule, and the affidavit is obviously insufficient. The facts stated in the affidavit do not show a fraudulent intent. This is too patent to need discussion.
A second and graver question is this: Was the act of the justice in issuing the order of arrest a judicial act, and having been performed by one having jurisdiction of the subject-matter, and the persons, conclusive on the parties, and not subject to attack collaterally? If no facts were no t • i ^ stated m the anxdavxt, the case would be free from difficulty; for where the statute prescribes certain conditions for the exercise of powers by an inferior tribunal, a disregard of those conditions renders the attempted exercise of those powers void. The trouble here lies in this, that an attexnpt is made to follow the statute by alleging certain facts which are claimed to justify the belief in the existence of the fraixd charged. If it be a judicial act, and the magistrate, after examination of the facts, finds that they prove the fraud, and thereupon issues the process, it is difficult to see upon what rule the validity of such determination can be attacked collaterally. If enough is presented to challenge judicial examination, the determination is conclusive upon the parties till set aside by direct proceedings for review. As was well said by Bronson, J., in the case of Miller v. Brinkerhoff, 4 Denio, 120, “where cerfekixx'facts are to be proved to a court of special and limited jurisdiction as a ground for issuing process, if there be a total defect of evidence as to any essential fact, the process will be declared void in whatever form the question may arise; but where the proof has a legal tendency to make out a proper case, in all its parts, for issuing such process, then, although the proof may be slight and inconclusive, the process will be valid until it is set aside by a direct proceeding for that purpose.” That it is within the power of the legislature to make it a judicial or ministerial act, will not Re questioned. The-issue of an order of attachment, under our code, is unquestionably a ministerial act, and of an order of injunction equally unquestionably a judicial act. The legislature might reverse the rule, and permit the issue of an injunction upon the filing of a specified bond and affidavit, and require a judge or justice to examine into and pass upon evidence of facts before issuing an attachment. It is often very difficult to distinguish between the two, or to assign a given act to one or the other class. It is so in the case before us; and the conclusion we have reached has been with grave doubts of its correctness. ¥e hold it to be a judicial act. It is an act to be done by a judicial officer, one whose prominent duties are judicial. , It is never .to be resubmitted to another officer, nor examined by another mind. The facts must be stated for the purpose of challenging some judicial examination. The only officer who does examine is the justice. The only time the statute expressly names for his examination is on the filing of the affidavit and the application for the order. The statute makes provision for subsequent examination as to the .truth of the charge, nothing more. We do not mean to be understood as saying that the justice may not re-examine the sufficiency of the affidavit on motion to vacate and set aside the order, but simply that such power is not-delegated by any express provision of the article concerning: “arrest and bail;” and we are now seeking the intent of the legislature, not the power of the justice. Under these circumstances it seems to us that the justice is required to examine the affidavit,, and .determine ,.that...the facts, stated .prove the fraud, before he may issue the order; and that his determination on this question is as conclusive and binding upon the parties as that made on any other question submitted .for his judicial examination. It may be said that a bond is required of a plaintiff seeking.an order of arrest, which would not be unless the issue of the order was purely ministerial. A bond is properly required, for the affidavit, though sufficient, may not be true; - a re-examination after argument from both sides may convince the justice of its insufficiency, or it may be adjudged insufficient in 'a higher court. So that the requirement of a bond throws little light on the question. Again, it may be said that a like statement of facts is required in- an affidavit filed in the district court, and that there the clerk issues the process without order from the judge. This is true'; but there are several points of difference between the procedure in justices’ and that in district courts, in cases of arrest, which may well show that the clerk only acts ministerially, while the justice acts judicially in issuing similar writs. Without attempting to indicate all, wc will name a few of the points of difference. In the district court the statute provides for submitting the sufficiency of the affidavit to the judge. The party arrested is committed to jail, and' there remains till the determination of the action according to the ordinary methods and time of procedure, unless he apply on motion to the judge for his discharge. The arrest proceedings are so entirely auxiliary that they do not at all change or modify the regular course of procedure in the action. The clerk performs no other function than that of approving and filing the bond, filing the affidavit, and issuing the order of arrest. The control of the proceeding, so far as discretion is concerned, is with the judge. In the justice’s court the-justice alone examines. The defendant arrested is brought immediately before him, and a trial had without delay. If the defendant contest the sufficiency, or truth of the affidavit, or validity of the claim, he may have all three questions disposed of at once, and never go near the jail. We merely suggest these elements of- difference, not caring in the present case to determine absolutely the character of the acts of the clerk in cases of arrest. It is enough for us to settle in what character. th.e justice acts. Outlaw v. Davis, 27 Ill., 467; Kissock v. Grant, 34 Barb., 144; Van Alystyne v. Erwine, 11 N. Y., 331; Johnson v. Moss, 20 Wend., 144; Matter of Faulkner, 4 Hill, 598; Billings v. Russell, 23 Penn. St., 189; Skinnion v. Kelly, 18 N. Y., 353. In this last case Johnson, Ch; J., in delivering the opinion of the court, after saying in substance that proceedings based upon a similarly defective affidavit will be deemed valid, uses this language: “It will be so deemed because the justice, having proof presented to-him; and being required by law to determine upon the weight of the proof, has acted judicially iii making his determination. His decision may be erroneous, but is not void.”. It results from this view of the case that great care should be exercised by justices in examining affidavits, and issuing orders of arrest. The facts' disclosed should clearly prove the fraud, otherwise innocent debtors may suffer a punishment which should only fall upon the guilty.
From the views herein expressed it is evident the judge of the district court erred in his rulings upon the trial. The judgment must be reversed, and the cause remanded for further proceedings in conformity with this opinion.
All the Justices1 concurring. | [
112,
107,
-8,
31,
10,
96,
42,
-70,
115,
35,
-91,
115,
-31,
-42,
1,
51,
-25,
105,
117,
120,
71,
-73,
55,
75,
-14,
-13,
-55,
-35,
-79,
77,
-25,
85,
29,
48,
-62,
-35,
102,
-56,
-61,
88,
-50,
5,
41,
-27,
82,
8,
48,
19,
66,
75,
113,
30,
-5,
42,
84,
-62,
-51,
44,
-53,
29,
112,
-80,
-97,
-99,
73,
18,
-109,
6,
-36,
71,
-40,
46,
-102,
113,
1,
-24,
123,
-106,
2,
116,
103,
9,
12,
102,
98,
49,
29,
-39,
-96,
-120,
46,
58,
-97,
-89,
-110,
81,
107,
45,
-106,
-99,
116,
16,
7,
124,
-14,
-60,
61,
108,
3,
-49,
-42,
-95,
15,
38,
-102,
27,
-45,
33,
33,
97,
-51,
-128,
92,
119,
121,
27,
-122,
-73
]
|
The opinion of the court was delivered by
Kingman, C. J.:
E. D. Bassett and wife executed a mortgage on block five in the town of Hartford, Lyon county. Soon thereafter the wife died, and a little later Bassett died, leaving a son, a minor. J. H. Hunt became the administrator of Bassett’s estate. An action was brought by the holder of the mortgage against the administrator to foreclose the mortgage. The heir was not made a party to the action. A judgment was rendered against the administrator of foreclosure, under which the block was sold, and a sheriff’s deed in due time made to the purchaser. The defendant in error by regular conveyances became the holder of the title under the sheriff’s deed, and brought an action of ejectment to 'recover the property, and on a trial by the court obtained judgment for the recovery of the real estate mentioned. The only question in the case is, Lid the purchaser under the judgment of foreclosure obtain the legal title to the property? We think , he did not. The land descended to the heir, burdened with the lien of the mortgage, and subject in certain contingencies to the payment of the debts of the decedent. The land so belonging to the heir, he became a necessary party to any suit affecting the land. The legal title was in him, and he was interested also in contesting the claim against his property. The administrator might have been joined with the heir if it was desired to obtain further relief against the estate of the decedent. The authorities on this point seem to be harmonious, or nearly so. No judgment or decree can be entered until the heir is before the court. Story’s Eq. Pl., §194; 4 Kent’s Com., 185, side page; 2 Hilliard on Mort., 140; Barbour on Parties, 494; Graham v. Carter, 2 Henning & M., 6; Mayo v. Tomkins, 6 Munford, 520; Lane v. Erskine, 13 Ill., 501; Moore v. Starks, 1 Ohio St., 369.
The judgment must be reversed.
All the Justices concurring. | [
-16,
108,
-108,
60,
74,
-32,
42,
-102,
74,
-80,
-89,
83,
111,
-54,
20,
13,
-9,
43,
21,
121,
69,
-77,
55,
33,
83,
-13,
-45,
-35,
-77,
125,
116,
-33,
72,
32,
74,
85,
-58,
-96,
-61,
80,
14,
-113,
24,
77,
-63,
26,
60,
59,
116,
74,
-59,
-113,
-13,
47,
57,
-61,
105,
40,
73,
61,
-48,
56,
-81,
-123,
95,
7,
-109,
39,
-104,
-121,
72,
10,
-112,
59,
-128,
-8,
115,
-74,
-121,
116,
75,
27,
9,
118,
115,
2,
65,
-19,
-16,
-104,
46,
-18,
-115,
39,
-102,
24,
107,
97,
-74,
-99,
120,
0,
6,
-10,
-18,
-123,
92,
-20,
11,
-114,
-42,
-79,
-116,
120,
-104,
10,
-10,
-109,
49,
113,
-51,
-94,
93,
-57,
121,
-71,
-114,
-16
]
|
'The opinion of the court was delivered by
Kingman, C. J.:
In the trial of a cause wherein the reía-: ■tors were plaintiffs, and the M. K. & T. Railway Company •' was-defendant, the jury brought in a written verdict, which' being examined by the judge was by him ednsidered imperfect, ■ andTre directed the jury to retire and perfect their verdict, ‘by •cofiiputin^- the interest and making it a part of -the assessed: ■damages. During the absence of the jury, the' attorney for • the defendant, by a written statement, informed the court' that' since the last retirement of the jury he had been informed, .and believed the information true,'that two of-the'jury, (therein named,) were parties engaged' in the prosecution of ¡an action to restrain' the officers of Morris county from the payment of interest on certain bonds issued by said county to the defendant company, while said jurors had, in.answer to questions on the impanneling of • the jury, stated that they had no controversy with the defendant company, and concluded with a prayer to the court -to inquire into the matter, that tljL.e jury be discharged, and another jury impanneled to-try the cause. This paper was not sworn to. The court upon the return of the jury made an inquiry into the facts, and found them as stated, and thereupon discharged the jury without receiving the verdict. The verdict had been agreed on, perfected, and reduced to writing, and was then in the hands of the foreman. The relators ask this court to direct the court below to receive and record the verdict, and proceed to judgment thereon.- This summary arrest of the proceedings was irregular, and erroneous. It is useless to examine decisions in other states to show the fact. Our statute makes the granting of a new trial such an order as may be at once taken to this court on error. This modification of the former practice gives new rights, and requires the observance of the steps necessary to enable a party to secure those rights. We abstain from expressing an opinion as to whether a new trial ought or ought not to -have been granted. That is a question that can only be tried on error, when both parties to the action are before this court. The Railway Company is not a party to this proceeding. It is because the parties had' a right to have the action of the court directly reviewed, that the refusal to accept the verdict, and the discharge of the jury, was erroneous. It is argued by the respondent that it is an error that cannot be corrected by mandamus; that the plaintiffs had1 their remedy by making a .bill of exceptions, and thus saving their rights. But the trouble is that a bill of exceptions would not give them a right to have the ruling of the court reviewed, until the final disposition of the case; and thus one of the rights given by law to litigate would be finally lost. It is useless to speculate upon the value of that right. That is not the province of the court. But while the party is thus deprived of the right to take the ruling of the court on this poipt up for review, by itself, he would be in little better position- after a final hearing. If the relators, Mtinkers and Terwilliger, should make a bill of exceptions, saving their rights in regard to this error, and upon final trial the verdict should be against them, and this court, in reviewing the ease on error, after such final hearing, should be of the opinion that there was no cause for a new trial, the relators would then have no verdict upon which judgment could be entered. So they would take nothing by a.ruling of this court in their favor. We think the court erred in its action; that its duty was to receive and enter the verdict, and that the relators have no adequate remedy in the due course of law save by the writ of mandamus.
It is suggested in argument that the defendant will have no opportunity to poll the jury; and other difficulties are mentioned in the way of carrying out this order, which are not without weight. The defendant’s right to poll the jury is not questioned; but when in that, or any other matter, the impossibility has been brought about by his own action, then he ought not to be allowed to complain of the result. The peremptory writ will go to enter the verdict as of the 12th day of April, 1871. There will be no mandate as to the judgment, as there is no certainty that a judgment will be a necessary consequence of an entry of the verdict. No inference is to be drawn that a new trial may not be rightfully granted upon sufficient cause shown. That question is not before us, nor can it be decided in the absence of one of the parties to be affected by it. We shall also carefully abstain from directing the amount for which the verdict shall be entered, for although the evidence on that point is abundant and satisfactory in this court, we are not unmindful of the fact that one of the parties is not before the court. The verdict should be made a part of the record, and the court below will know how to make the records of his court speak the truth. Peremptory mandamus awarded.
All the Justices concurring. | [
48,
-6,
-76,
-98,
74,
96,
34,
-40,
64,
-95,
-90,
115,
41,
-37,
16,
63,
123,
63,
81,
107,
-44,
-109,
7,
-93,
-109,
-45,
-45,
-59,
-79,
88,
-26,
-1,
76,
48,
-54,
-43,
70,
67,
-63,
20,
-114,
45,
-87,
-59,
88,
56,
48,
126,
86,
79,
17,
-98,
-21,
46,
25,
-45,
105,
44,
-22,
-99,
81,
-79,
-102,
-49,
109,
0,
-77,
6,
-98,
-125,
-8,
62,
-104,
49,
1,
-20,
115,
-74,
-122,
-44,
105,
-103,
9,
102,
98,
1,
69,
-17,
-8,
-120,
62,
-42,
-115,
-89,
-108,
16,
75,
69,
-106,
-33,
118,
16,
-90,
-2,
-17,
21,
-47,
108,
1,
-117,
-74,
-77,
95,
126,
-102,
3,
-21,
-87,
16,
112,
-20,
-72,
93,
6,
18,
27,
-49,
-100
]
|
The opinion of the court was delivered by
Brewer, J.:
These three cases present the same question and may be considered together. The defendants in error brought their several actions upon promissory notes signed by plaintiff in error, and by E. B. Wicks and F. S. Boice, Plaintiff in error answered, alleging her coverture, that said notes Avere given in satisfaction of certain accounts due by the firm of Wicks & Boice, that no consideration therefor passed to her, that they Avere not given for her OAvn benefit or for the benefit of her separate estate,.nor Avith reference thereto, and that she “did not nor has she charged her sole or separate propei’ty with the payment of said notes, or either of them, but at the time of their execution refused to in any manner so charge her sole and separate property or any part thereof.” Demurrers to these answers were sustained, and judgments rendered.
The only thing to distinguish these cases from the case of Deering v. Boyle, 8 Kas., 525, is contained in the last clause of the answers just quoted. It Avas in that case held that “when a married woman executes a promissory note in payment and satisfaction of her husband’s debt an action may be maintained against her on said note, and her separate property applied in payment of the same.” Counsel for plaintiff in error claim, "arguing from that decision, that her separate estate is so charged because it is presumed from the giving of the note that she intended to charge such estate; or, in other words, that the note is simply evidence of her intention. They further claim that such a note is only prima facie evidence, and may be overthroAvn by other testimony; that therefore in every such case a question of fact exists as to her intention; that here she alleges that it Avas not her intention to charge her separate estate, and that hence, the demurrers, admitting that fact, should have been overruled. The clause in the answers quoted contains two allegations: 1st, That she did not charge her separate property. This .is an allegation of a legal conclusion. She admits the execution of the notes. Now whether thereby she charged her separate property is a question of law; for there is no claim in the petitions that she ever executed any mortgage or other instrument specifically appropriating certain property to the payment of these notes. The only question raised by the petitions is whether she has executed such an instrument, as, not being paid, can be collected out of her separate property. The second allegation is, that she refused at the time of the execution of these notes to charge her separate property. This is an allegation of fact. This may properly be considered as simply an allegation that she refused by mortgage or otherwise to make any specific appropriation of any of her separate property to the payment of these notes. In other words, she did nothing further than executing these notes towards charging her separate property. In this view the question raised by the learned counsel for plaintiff in error is not in the cases, and they fall within .the letter as well as the spirit and reasoning of the rule laid down in Deering v. Boyle. But suppose this be not a fair interpretation of this clause in the answers, and that the question as presented by counsel, is fairly in the record: were the demurrers improperly overruled.? Will a married woman be permitted to plead a refusal to charge her separate estate in avoidance of the obligation created by her promissory note? Will she be permitted to admit tlfe execution of a written instrument, and to assert, in discharge of it, that at' the time she executed it, she said she would not do what she was doing? Will she be allowed to deny the legal effect of her own promises? The notes created no personal obligation against her. This seems to be undisputed. They were promises to- pay, which could be enforced out of her separate estate, or else they were nullities. They were valid and could be enforced out of her separate property unless made nullities by her assertion that they -should not be paid therefrom. When a party under no disability has executed a deed, mortgage, bond or note, would an admission of their execution be affected in the slightest degree by an allegation that at the time of execution the party declared he would not convey, -or pay? A party is held obligated to do that which is the legal effect of the instrument he executes. The rule is as fixed and clear for married women as for any other persons. When they sign promises to pay, the law holds that they act in good faith, and that they intend to do what they have promised. It considers that instrument a valid instrument, and as it can be held valid only because enforceable against her separate estate it enforces it against such estate. It will not permit her, even if she desire it, to plead her own dishonest purpose in avoidance of the instrument she has signed and delivered.
Counsel in strong language picture the hardship which may ensue where an unsuspecting wife, lured by the entreaties of her husband, or frightened at the arrest and possible disgrace which threaten him, signs as surety notes for his indebtedness, and shortly thereafter finds all her separate property swept away from herself and children. If this be the-result, the statutes of these later times, which are entitled “statutes to protect the rights of married women,” counsel claim, were more appropriately denominated “statutes to lure married women into the m'eshes of their'husbands’ creditors.” The possibility of results like this, in isolated cases, could not of course determine the rule. Considerations of that kind may appropriately be pressed in the legislature, but can have no weight with us who are to determine what is, not what should be the law. It may not be inappropriate to say, however, that with every enlargement of the rights of married women comes a corresponding increase in their responsibilities. When they take the right to control their sepai’ate estates, they assume the risks of such control. When the law gives them the privileges of separate individual citizens, they take with it all the responsibilities and dangers of such citizens. Given the right to contract, they assume the liabilities of contractors. At first, it is true, hardships may in isolated instances ensue from the inexperience of women in matters of business. Such hardships always arise upon any change in the rules of property or business. While we may regret such hardships, we may rejoice in the change, believing the new rule the better rule, and that society, readjusted upon the basis of the absolute independence of all adult citizens in matters of property, will more successfully work out the greatest good for all. But whether the change be for the better or worse cannot affect our determination. We have no power of legislation or’ change. The judgments will be affirmed. •
All the Justices concurring. | [
-110,
124,
81,
-1,
-118,
96,
-86,
-120,
-28,
-127,
-73,
83,
-23,
-61,
16,
105,
116,
41,
97,
106,
71,
-73,
7,
64,
-10,
-13,
-16,
85,
-79,
-51,
-11,
86,
76,
32,
-54,
85,
102,
-118,
-59,
80,
70,
20,
-120,
-28,
-7,
-62,
48,
123,
86,
77,
117,
-50,
-13,
45,
29,
70,
104,
44,
109,
57,
-32,
-72,
-97,
-115,
91,
6,
-78,
55,
-100,
68,
-56,
14,
-112,
49,
1,
-24,
50,
-90,
6,
116,
111,
27,
9,
98,
102,
0,
-59,
-17,
-104,
-100,
38,
126,
-99,
-89,
18,
88,
9,
9,
-106,
-99,
124,
80,
-89,
-10,
-2,
21,
29,
-20,
13,
-113,
-42,
-77,
-115,
126,
-104,
3,
-25,
-93,
49,
113,
-57,
96,
92,
103,
58,
-101,
-114,
-6
]
|
The opinion of the court was delivered by
Valentine, J.:
The only question in this case is, whether the court below erred in refusing to confirm a sheriff sale, and in setting aside the same. The principal objection, urged against the sale is, that it was a sale of two separate town lots in gross, and not separately. The return of the sheriff is perhaps open to two or more different constructions: First, it may be claimed that the said town lots were adjacent, and composed, taken together, only one tract of land; or it may be claimed that they were not adjacent, that one or more other lots intervened between them, and that they composed two separate tracts of land. Second, it may be claimed that the sheriff sold the lots separately, or it may be claimed that he sold them both together. Now, if the return of the sheriff is fairly open to two different constructions, we suppose the sale ought to have been set aside. In Ohio it has been decided that “Where an appraisement or sale is fairly susceptible of two interpretations, if the variance is material, the court would be justified, generally, in setting the same aside and oi’dering a re-sale.” Ohio Life Ins. and Trust Co. v. Goodin, 10 Ohio St., 557. In this case the court below undoubtedly constracd the return of the sheriff as showing that the said lots were separate parcels of land, and that they were sold together or in gross. If the proceediixgs were equally open to two different constructions we would put the same construction upon such proceedings as the record shows that the court below did; and where the construction given by the court below seems to be the correct one, we wrnxld certainly sustain that eonstraction. As a rule the court below can know better what construction to put upon its own proceedings—the proceedings of itself aixd its own officers—than we can. And it will always devolve upon the plaintiff in error to show affirmatively (where he so claims,) that the court below put the wrong construction upon such proceedings. Such has not been shown in this case. As an original proposition we think the court below was right. The lots were in the same block, but they were not numbered consecutively. They were numbered seven and nine respectively, which would seem to indicate that they were not adjacent to each other but that there was at least one other lot intervening between them. The sheriff’s return uses the following language: “I offered said lots for sale at public auction and sold the same to Jonathan Daniell for the sum of eleven hundred dollars, he being the highest bidder therefor, and that sum being more than two-thirds the appraised value thereof.” The return of the appraisement, which we do not quote, clearly shows that the appraisement was made in gross, and not for each lot separately. This we think clearly shows that the lots were sold in gross and not separately. The whole record is entirely consistent with this construction. According to the authorities a sale thus made, though not void, is nevertheless irregular, and voidable, and may be set aside on motion of the judgment-debtor or other person aggrieved thereby: Laughlin v. Schuyler, 1 Nebraska, 409; Bradford v. Limpus, 13 Iowa, 424; Lay v. Gibbons, 14 Iowa, 377; White v. Watts, 18 Iowa, 74; Cunningham v. Cassidy, 17 N. Y., 276; Bunker v. Rand, 19 Wis., 253.
In this case the motion to set aside the sale was made by the judgment-debtor, and the question may be asked how could the court below know that he was aggrieved or injured without any special proof of the same? We think that it must be presumed fro® the sale itself, without such special proof, that injury resulted to the judgment-debtor. It can hardly be supposed that lots separated from each other could be sold so advantageously to the judgment-creditor if sold in gross as if sold separately. Many persons might want to bid' on one lot that would not want to bid on the other, or on both. The lots should be so offered for sale as would invite the fullest and freest competition. Offering lots adjoining each other for sale in gross might in some cases accomplish this; but offering lots separated from each other for sale in gross could hardly do so under any circumstances.
We do not think that it is necessary to consider the other points made by counsel for defendant in error. The order of the court below setting aside the sheriff sale is affirmed.
All the Justices concurring. | [
-15,
-4,
-40,
-100,
26,
96,
42,
-72,
105,
-95,
55,
91,
45,
-54,
16,
123,
-74,
109,
85,
120,
-41,
-73,
19,
35,
-10,
-14,
-47,
-35,
-75,
76,
-26,
86,
76,
32,
-54,
-107,
-26,
66,
69,
84,
-50,
7,
58,
77,
81,
64,
52,
57,
96,
75,
117,
-114,
-21,
44,
29,
-41,
73,
40,
73,
61,
80,
-72,
-66,
-123,
95,
12,
19,
38,
-38,
67,
-40,
10,
-112,
53,
-128,
-24,
115,
-76,
-122,
-12,
77,
-101,
-88,
98,
102,
1,
69,
-17,
-8,
-72,
46,
-2,
-115,
-89,
-112,
24,
42,
33,
-106,
-99,
120,
48,
-121,
-2,
-26,
-100,
95,
108,
15,
-122,
-42,
-77,
-49,
60,
-102,
64,
-61,
35,
51,
113,
-49,
-6,
93,
101,
18,
27,
-114,
-42
]
|
'The opinion of the court was delivered by
Valentine, J.:
During the year 1870, A. Sumner was a dealer in sewing machines, pianos, and organs, at St. Louis, Missouri. A. R. Foote was. his general business agent, or .business manager, at that place. W. C. Reicheniker was a local agent of his, at Atchison, Kansas. Up to April 1st 1870, Reicheniker was agent for the sale of sewing machines •only, but about that time he was made agent for the sale of pianos and organs also. Just previous to that time, one James Atkins, a general agent of Sumner’s for tuning pianos, was sent by Sumner to Atchison -.for the purpose of ascertaining whether a suitable house •could be rented for the purpose of putting in á stock of jfianos, organs, etc. Atkins and Reicheniker went to E. K. .Blair, one of the executors of the estate of G. W. Bowman, deceased, to see what a certain house belonging to said estate •could be rented for. Blair told them that they could have the room on the first floor for $800 per year, the rent to be paid monthly in advance. They “got the refusal of the room,” -until Atkins could write to Sumner ánd get his consent. It -was understood between the parties that Reicheniker’s mother was to take half the room and pay half the rentr and Sumner of his agents to take the other half of the room and pay the other half of the rent. Blair told Atkins that-he would not rent the room to Beicheniker, as he did not consider Beicheniker responsible. Atkins told Blair that Sumner wás responsible. Afterwards Atkins wrote to Sumner, telling him that he had got the refusal of the room, the' terms, the price, etc. Sumner then wrote back to Beicheni-ker, substantially, that if he, Beicheniker, could make the arrangement, he would furnish Beicheniker with a stock of pianos, etc. A portion of the language of said letter is as follows:
“Mr. Atkins seems to think there can be some instruments-sold in your place. He writes about a store that he got the refusal of at $800, and says you would write in reference to-having your mother occupy it with you. If you can maker some such arrangement, that will be satisfactory. We can furnish you with a stock of instruments, and will furnish, you the sign.”
Beicheniker showed the letter to Blair, and Blair, with I>C. Newcomb, the other executor of said estate, executed a lease to Sumner for said room, and Beicheniker signed Sumner’s name to the lease as one of the parties. The bills for the rent were made out against Sumner, and the receipts for money paid on the rent were given in favor of Sumner.The bill for the rent for the month of September 1870 was-sent to Sumner, at St. Louis, and a draft for the amount,, drawn in favor of the Bowman estate, was returned by Sumner to Beicheniker, and Beicheniker gave it to Blair. Accompanying the draft was a letter to Beicheniker, dated at St. Louis, Sept. 9th, 1870, which reads as-follows:
“Enclosed please find our check No. 5249, in full for bill of store rent. Bespectfully, A.' Sumner, per Foote.”
This action was commenced to recover for such rent only as accrued and became due after September 1870. The action was commenced originally in a justice’s court. Blair and New-comb were the plaintiffs, and Sumner the defendant. Th^ judgment in the justice’s court was for the plaintiffs, and the defendant appealed to the district court. The judgment was ■also for the plaintiffs in the district court, and the defendant .brings the case here on error.
During the trial in the court below, the defendant desired ■to show, by cross-examination of Reicheniker, that as between Reicheniker and Sumner, Reicheniker was to pay the rent. 'The court refused to permit such evidence to be introduced. We see no error in this, or at most, none such as will require a reversal of the judgment. Sumner made himself responsible to the plaintiffs below, and it made no difference ' to them whether Reicheniker was responsible to ¡Sumner or not. Neither had Reicheniker on his examination in chief testified as to which was to pay the rent as between themselves, Sumner, or Reicheniker. He simply testified to a state of facts which would make Sumner liable to the plaintiffs, without regard to whether he himself was liable to any one or not. In this respect the evidence sought to be introduced by the defendant was wholly immaterial and irrelevant. It was not impeaching evidence, nor was it :any kind of cross-examination. It did not tend to rebut, •explain, modify, or qualify, in any manner, anything that the witness had testified, to on his examination in chief. But it may be claimed that the evidence sought to be introduced by said cross-examination would in some degree tend to show that Reicheniker had no authority to lease the room for Sumner, and in that way it would tend to rebut or impeach facté which the witness had already testified to. Possibly This may be true; but still it would be such weak evidence, :as compared with the evidence against it, that we would not, for the supposed error of the court in refusing to receive it, reverse the judgment and grant a new trial in order that it might be given to another jury. With this evidence before the jury, the verdict would undoubtedly have been the same as it was; and it ought to have been the same. Admitting that this evidence would have shown absolutely that, as between Reicheniker and Sumner, Reicheniker was to pay the rent, and still the verdict should have been just what it was. And admitting that the fact, that, as between Eeich•eniker and Sumner, Eeicheniker was to pay the rent, would have proved absolutely that Eeicheniker had no authority to ^execute the lease, and still the verdict should have been just what it was. The contract for the lease of the house was partially made between Blair arid Atkins. To make the contract complete it only needed the assent of Sumner. Sumner gave his assent in various ways. In the letter he wrote to Eeicheniker, which Eeicheniker showed to Blair, before the lease was executed, Sumner gave his assent. And by paying the rents promptly, as they became due, he gave his assent. And by drawing his draft in favor of the Bowman estate, for the rent due for the month of September 1870, he gave his .assent. But even if he never gave his assent it does not necessarily follow that he is not liable for the rent. Admitting that as between Sumner and Eeicheniker, Eeicheniker was to pay the rent; admitting that Sumner .never gave Eeicheniker any express authority to rent a room; admitting ■that Sumner never gave his assent to the partial contract made between Blair and Atkins; admitting that the written lease, executed between Eeicheniker and the plaintiffs below, was never expressly authorized by Sumner, and was never ratified by him, and still it does not necessarily follow that Sumner is not liable for the rent of the room. On the contrary, we should judge that the other facts would necessarily make him liable. Sumner was the absolute and exclusive •owner of the pianos, organs, etc., designed to be kept in that room. Eeicheniker was only an agent of Sumner’s for the .sale of them. ITe had no other business, and no use for a room except as the mere agent of Sumner. Blair knew all this. It was absolutely necessary, in order to keep a stock • of pianos, organs, etc., at Atchison, and expose them to sale, that Sumner and Eeicheniker should have a room to keep them in. The business could not have been carried on at all, nor the agency fulfilled, without such room. It would therefore seem that the renting of a :room to keep these pianos, organs, etc., in, came absolutely and strictly within the scope of Reicheniker’s agency, within the implied scope of his authority. If .so, Sumner is unquestionably liable for the rent, whether he ever gave to any person any express authority to rent the room or not, whether he ever ratified any contract for the rent of the same- or not, and whatever may have been the private understanding between himself and Reicheniker, as to who should pay the rent. The evidence then sought to be introduced by Sumner was very weak. It was weak for the purpose of showing that as between Reicheniker and Sumner, Reicheniker was to pay the rent. And if that fact had been shown absolutely, such fact itself would be very weak, in the light of the other evidence, for the purpose of showing that. Reicheniker had no authority to execute said lease. And even if it had been shown absolutely that Reicheniker had no authority to execute said lease, such fact would be very weak evidence, when compared with the other facts of the-case, for the purpose of showing that said lease, or its substance, was not binding upon Sumner. The introduction then of such evidence as that sought to be introduced, is piling weakness upon weakness in at least a three-fold aspect. It might properly have been admitted. In the latitude of cross-examination, probably it ought to have been admitted. But courts are not always bound to admit even competent evidence. The evidence may be so weak, or so remotely connected with the main fact, that the courts have a discretion whether they will admit it or not. The affairs of men consist of a vast complication of circumstances, each owing its-origin to a combination of pre-existing circumstances, and each so intimately interwoven and blended with others as to-be hardly separable therefrom. This comes from the endless chain, or rather net-work, of causation. Every event that actually transpires is the result of two or more pre-existingcauses; and every result in its turn becomes a co-operating cause in the production of other results. No cause and no-effect can be perfectly isolated from other causes and effects. But every cause and every effect is probably only a portion of one great and grand system of causes and effects which had its origin in the foundation of the universe, and which will continue as long as time shall last. And said system probably includes all causes, and all effects, which have ever existed, or shall ever exist. For this reason, proof of one circumstance is generally some proof of some other circumstance, 'and of all others that have any connection therewith, proximate or remote. But' the value of the proof, as applied to different circumstances differs beyond all conception. One circumstance may be so intimately connected with another as to be almost absolute proof of the other, or it may be so slightly or remotely connected therewith as to be scarcely any proof at all. Every fact that may be proved in a court of justice is necessarily connected with many other facts.which tend to modify or explain it; and each of these is again necessarily connected with and modified by as many others, and each of these by others, and so on, ad infinitum. But the proof of all these facts cannot be extended through a trial ad infinitum. A limit must be reached somewhere. Generally only the proximate facts or circumstances can be proved, if from the nature of the case these facts or circumstances can be produced. But where from the nature of the case these facts or circumstances cannot be produced, the rule is extended. In such a case the door is opened wider, for1 less conclusive proof. Each case must depend, to a great, extent, upon its own facts and circumstances, and upon the discretion of the court. The rule being, that the best evidence of which the case, in its nature, is susceptible, must be produced. Where a plaintiff proves his case by remote circumstances, the defendant may rebut such proof by circumstances equally or more remote. But where a plaintiff proves his case by direct and positive evidence, or by proximate circumstances, the court may in its discretion refuse to permit the defendant to attempt to disprove such case by extremely remote circumstances, or by circumstances that are scarcely any proof at all. But the said evidence was .offered to be introduced on cross-examination; and here, of course a wider latitude must be allowed. Indeed, the court may in its discretion allow, on cross-examination, the most remote facts and circumstances to be proved. But even on .cross-examination there is a limit beyond’which courts are not bound to go. There are always, in every case, facts and circumstances so remotely connected with the facts or circumstances already testified to by the witness, that the court may rightfully exclude them even on cross-examination. In the present case, the evidence sought to be introduced should probably have been admitted. Evidence tending to show that there was a private contract or understanding between Reicheniker and Sumner, that Reicheniker should pay for the rent of the room, may be a slight circumstance tending to show that Reicheniker had no authority from Sumner to execute said lease. But such evidence is very weak. It is that weak kind of evidence which lies close to the common frontier ■between better evidence, which the court is bound to admit, and weaker evidence, which the court in its discretion may rightfully exclude. But whether said evidence ought to have been admitted or not, we are clear that no substantial right of the defendant below was affected by its exclusion. If we had a reasonable doubt concerning it, we would reverse the judgment, and grant a third trial to the defendant below. But we have no such doubt. And as no substantial right of the defendant below has been affected, we must disregard the error, if there was any error. Civil Code, §§ 140, 304.
The court below gave certain instructions to the jury, and refused to give certain others asked for by the defendant below. The defendant excepted to the action of the court in the following manner: “To which refusal and ° charge of the court the said defendant then and there duly excepted.” The defendant by this exception duly excepted to the charge as a whole, but ho did not duly except to each portion of it, or to any particular portion of the same. Now, as some portions of the charge were correct, and probably all, this exception was insufficient. A general exception to. a whole charge is not available, unless the whole charge is erroneous, or unless the charge in its general scope or meaning is erroneous: Lánsing v. Wisswell, 5 Denio, 213; Jones v. Osgood, 6 N. Y., 233; Hunt, v. May-bee, 7 N‘. Y., 266; Caldwell v. Murphy, 11 N. Y., 416; Lecher v. Mathews, 12 N. Y., 313; Oldfield v. N. Y. & II. Bid. Co., 14 N. Y., 310; Thrasher v. Tyaak, 15 Wis., 256; Tomlinson v. Wallace, 16 "Wis.,-224; Jenks v. The State, 17 Wis., 665; Moore v. Gilman, 18 Wis., 373. What we have said with reference to the exception to the charge, is equally applicable to the exception to the refusal to charge as asked. There were four separate and independent instructions asked, and as the exception was to the refusal to give the whole of them together, and not to each separately, if any one of the instructions asked was not good law for the case, the exception is not available. In examining them we find the very first one of them not to be good law for this' case. The instruction reads as.follows: “If the jury find from the •evidence that W. C. Reicheniker had no authority from A. Sumner to execute the lease for Sumner, then said lease was unauthorized, and does not bind the defendant.” There was very strong evidence given of the ratification of the lease by .Sumner, after it was executed; and even if it was unauthorized when it was executed, if ratified afterwards, it would certainly be binding on Sumner at the time of the trial. This instruction goes to the extent that if the lease was not binding when it was made, it would not bind Sumner at the time of the trial, although it had been duly ratified by Sumner subsequent to its execution. This was not good law for this case. Hence, the court below, after reading the first instruction .asked, and finding it not to be good law, had a right to refuse .all the instructions asked, as all were asked as á whole; and the exception to the refusal to give them was a general exception to the whole refusal. The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J.:
I think the court erred in ruling out the testimony offered, but concur in holding the error insufficient in this case to justify a reversal. | [
-79,
-17,
-40,
47,
26,
64,
46,
-102,
2,
-31,
54,
119,
73,
-38,
21,
125,
-14,
13,
20,
107,
-61,
-105,
6,
43,
-46,
-45,
-47,
-43,
-75,
73,
-12,
31,
77,
36,
74,
-99,
-30,
-62,
65,
28,
-98,
8,
40,
-26,
-35,
64,
52,
121,
70,
8,
85,
14,
-77,
44,
29,
79,
47,
46,
109,
41,
-16,
-8,
-101,
-113,
125,
30,
-112,
54,
-112,
7,
72,
30,
-104,
21,
8,
-23,
91,
-92,
-122,
116,
71,
-117,
44,
98,
99,
50,
-111,
-17,
-8,
8,
47,
-61,
-99,
-89,
53,
89,
35,
105,
-65,
-101,
112,
16,
7,
-10,
-26,
-99,
89,
44,
11,
-114,
-106,
-125,
45,
114,
-104,
24,
-21,
-121,
51,
113,
-49,
52,
92,
64,
58,
-109,
-114,
-24
]
|
The opinion of the court was delivered by
Valentine, J.:
The defendant in error, the Railroad 'Company, makes a motion in this court that the transcript of the record be referred back to the judge of the district «court before whom the action was tried, in order that' said judge may review the bill of exceptions therein contained, and amend the same according to the facts. The bill of exceptions is perfectly regular upon its face. It was properly reduced to writing, signed, and allowed by the judge, and ordered to be made a part of. the record, and all within the proper time/ and all in due form. But two*objections arc urged to said bill of exceptions: First, it was signed and allowed by the judge in the absence of, and without-any notice to, the defendant, or to its attorneys. Second, it is not ;a true bill of exceptions. The first objection is not tenable. A judge of a court may sign and allow a bill of exceptions ^01’ onc Pai’ty in the absence of and without any uotice to the other party, or the other party’s counsel, though it must be admitted such a thing ishould seldom be done. The judge in such cases should exeiv •cise a very careful and prudent discretion. If, in a case of -emergency, it becomes necessary for a judge to sign and allow ¡a bill of exceptions without the other party having an oppor tunity of seeing it, he should read it very carefully, and know that it contains nothing but the truth. Neither is the' second objection sufficient. But before proceeding further we-would state that the motion of the defendant is founded upon two affidavits—one being the affidavit of the judge of the court before whom the action was tried, and the other being the affidavit of one of the counsel who assisted in trying the cause in the court below. Each affiant states upon oath .that the bill of exceptions was signed and allowed in the absence of and without notice (so far as each knows,) to the defendant, or defendant’s counsel; that the bill purports to contain all the evidence, when in fact it does not contain all the evidence; that it répresents that certain matters were introduced in evidence which in fact were not introduced in evidence ; and that it represents the evidence concerning certain matters' to have been a certain way, when in truth and in fact the evidence was directly the reverse of what it represents it tn have been. These things are stated in full, and in detail, in the affidavits. We have only attempted to state the substance of the affidavits. It would seem that there ought to-be a remedy for such a case as this. And we think there is ; but it is not the remedy the defendant wants. It is admitted-by counsel for defendant that the time has passed in which-the court below could, unless assisted by the supreme court,. allow a new bill of exceptions, or amend the one already allowed. But it is claimed that' this e0urt could by an order enable the court below to so amend the bill of exceptions as to make it correspond with the facts, as they transpired at the trial. We know of no law authorizing the supreme court to make any such order. It is true, that we can send back a transcript with the order that it be so amended as to correspond with the original record. It is true, that we can order that the transcript of the bill of exceptions be so amended as to correspond with the original bill of exceptions. But we have no -power, so-far as we are now advised, to order that the original bill of exceptions shall be so amended as to correspond with the facts of the case. This is entirely unlike the case where a bill of ■exceptions is presented to the court within the proper time, • and the court refuses to allow it, or to act upon it. In that .case the laAV gives a remedy Avhich may be enforced in .this court. (Article 33 of the code.) As soon as the judge refuses ■■ to act upon the bill of exceptions an action accrues against: him—an action of mandamus; and the mere adjournment of • court in such a case cannot defeat or bar the action. The notion continues until the judge performs his duty, or until the -statute of limitations bars it. But no action accrues against a judge Avhen he acts upon a bill of exceptions, and ■ •acts judicially, although he may act erroneously. Where a party obtains a bill of exceptions through fraud, the other party Avould undoubtedly haAre a remedy by an original action in the district court (but not in this court) if he Avere likely to suffer injury from the fraud. And, generally, AArhere a bill of exceptions is so erroneous or untrue as to require a reversal of the judgment, the party aggrieArcd has a neAV trial in the court beloAV, AAdiich ordinarily Avould be a sufficient remedju And here Ave Avould Avish to say that we confine this decision to cases Avherc a neAV trial may be granted, Avithout expressing any opinion concerning a case Avhere a neAV trial could not be granted. The motion is overruled.
II. It is claimed that the court erred in OArerruling the plaintiff’s demurrer to the defendant’s ansAver. The answer ¡states among other things that the defendant contemplated building its road on one of two different routes—the Tar Creek route, and the Baxter Springs route; that it would cost about. ¡$100,000 more to build, and about $20,000 more, annually, to operate, the Baxter Springs route than it Avould the Tar Creek route; that in consideration thereof the plaintiff •entered into a contract with the defendant (many other persons making similar contracts Avith the defendant,) to conArey the land in controversy to the defendant, if the defendant would build its road on the Baxter Springs route and locate its depot- in Baxter Springs; that the defendant had'performed'1 all its part of the contract; and then- the answer prays that the plaintiff maybe compelled tó spe-' citically perform his part of ’ the ' contract by conveying said land to the defendant. Upon this answer tlic following questions are raised: First: Can a railway company' receive, or purchase, and hold real estate for the purpose of aiding it “in the construction, maintenance and accommodation of its railway?” Wc think it can. (Gen. Stat., 202, § 4, subdiv. 2.) Of course, railway companies cannot become the owners of lands for mere purposes of speculation. Of course they cannot own lands for the purpose of operating farms on them, or own houses and lots for the purpose of renting them; nor can they engage in any kind of business not connected with legitimate railroad business. But they may receive lands by voluntary grant, or purchase, and then sell them “for the purpose of aiding in the construction, maintenance, and accommodation of their railways.” The statute above referred to provides that every railway corporation, in addition to its other powers shall have power “To take and hold such voluntary grants of real estate, and other property, as shall be made to it to aid in the construction, maintenance and accommodation of its railway; but the real estate received by voluntary grant, shall be held and used for the purpose of such grant only; and to purchase and hold, with power to convey, real estate for the purpose of aiding in the construction, maintenance, and accommodation of its railway.” Secondly: Does it appear from this answer that the object of the railway company in making said contract was to obtain the land for the purpose of aiding it in the construction, maintenance or accommodation of its railway ? We think it does, though it is not so expressly stated. It would have been better if the answer had so stated the same M express terms. Third: Was this contract in contravention oi public policy, ancl void, because . . # , it. wag made m consideration that the railway ■company would build its road by Avay of Baxter Springs instead of by way of Tar Creek at such a vastly increased expense? We think not. There is no kind of public policy that requires that .railroads shall be built on the route that costs the least. . The public interests often require that a railroad shall be built on the route that costs the most. The cost of constructing or maintaining a road is only one of the many elements that must be taken into consideration in determining on what route a road shall be built. The prospective business of a road proposed to be built upon any particular route has vastly more to do with the question of where it shall be located, than the cost of its construction or operation. It is not claimed in this case that the interests of the public were not best subserved by constructing the road by way of Baxter Springs instead of by any other route. The running of the road by way of Baxter Springs was not a deviation of the road from any route mentioned in the charter, nor was it even a deviation from any route between two points mentioned in the charter. It is said “that the objective point of the road was and is Preston, in the state of Texas.” The running of the road to Baxter Springs was simply a choice of routes-to-Preston, Texas. But as Preston is beyond the boundaries of Kansas, and as no railroad company can be chartered in Kansas with power to build a railroad beyond its boundaries,, the location of Preston, or the choice of routes to it, can have no bearing in this case. The question, then, was simply this: whether the railroad company would build a road to Baxter Springs or to Tar Creek; simply, -whether they would build one road or some other road, or perhaps more properly-speaking, whether they would build a road to Baxter Springs, or not, With this view of the case, the decision of the first question raised on the demurrer to the answer, and one which we have already considered, decides this question. And this, we think, is all there is of the question. Hence our answer, that a railway company can become the owner of real estate, and hold it for the purpose of aiding it in the construction, maintenance, or accommodation of its railway, is an answer to this question. For the exercise of this power the railway company has a positive statute in its favor, and we need not look any further for authority. The decisions of other states, whether they agree with these views or not, have no application to this case, unless such states have statutes like ours.
III. There are many questions raised upon the introduction of the evidence, or rather upon the exclusion of eyidence. From the bill of exceptions it would seem that much of the evidence of the plaintiff that was excluded should have been admitted. The following evidence that was excluded seems to have been competent, and should have been admitted, to wit: Evidence, tending to show the circumstances under which the bond from the plaintiff to the defendant was signed; whether at the time it was signed it formed a part of a completed contract, or whether it only served as the basis of a proposition to the railroad company; whether the bond was ever delivered by the plaintiff to the railroad company, or not; whether, if the bond served only as the' basis of a proposition, the proposition was ever accepted, or not, by the railroad company, or whether it was rejected by the railroad company; and the length of time, if any, that was given to the railroad company in which to determine whether it would accept or reject the proposition, etc. And the'objection to the introduction of Mr. Joy’s letter in evidence, to wit, “that it had not been received in the ordinary way,” was entirely insufficient. If the letter was an answer to the proposition of the jdaintiff and others, as it seems from the bill of exceptions to be, and if it was promulgated as such by a duly authorized agent of the railroad company, it made no difference how it was received, whether by mail or otherwise. For the errors of the court, in excluding said evidence, the judgment below must be reversed. Rut as the bill of exceptions is probably not true in many of its statements we shall not comment upon the evidence in detail, for by so doing Ave would probably be commenting upon a very different case from the one that was actually tried in the court below. Judgment reversed and cause remanded for a new trial.
All the Justices concur, except as to the second point decided; and concerning that point Kingman, C. J., concurs with Valentine, J., and Brewer, J., dissents. | [
-80,
120,
-44,
-98,
-86,
96,
40,
-104,
-47,
-95,
-89,
115,
-83,
82,
4,
115,
-2,
127,
85,
35,
86,
-77,
6,
67,
-77,
-13,
-45,
-43,
-79,
111,
-26,
86,
13,
32,
-54,
-43,
103,
-54,
-59,
84,
-50,
39,
-87,
-19,
-5,
8,
52,
113,
116,
15,
113,
-114,
-29,
46,
24,
-62,
-23,
40,
107,
121,
-40,
-80,
-97,
-115,
95,
0,
-77,
38,
-98,
5,
104,
46,
-104,
49,
1,
-8,
112,
-74,
6,
-12,
105,
-69,
9,
102,
98,
1,
77,
-17,
-68,
-72,
54,
110,
-99,
-90,
-110,
24,
107,
-123,
-106,
-99,
53,
16,
39,
122,
-18,
85,
24,
36,
8,
-117,
-74,
-79,
-33,
126,
-102,
54,
-21,
-93,
16,
113,
-59,
-16,
92,
69,
27,
-103,
-97,
-98
]
|
The opinion of the court was delivered by
West, J.:
The plaintiffs appeal from an adverse judgment in an action to open up a decree in a former suit to quiet title to the real estate involved, to recover possession, and for rents and profits.
Emma Dolan died intestate in 1910 owning the land in controversy and leaving as her only heirs her husband, the defendant, and Fred Myers, her son by a former marriage. In 1911 the defendant sued to quiet title, making Fred Myers defendant, if living, and if dead, the unknown heirs, executors, administrators, devisees, trustees and assigns. Proper service by publication was made, apd on'May 10, 1911, he took a decree finding that he and his immediate grantors had been in the actual, open, notorious, peaceable, and adverse possession for more than fifteen years, barring all the defendants, and quieting the title in him. On June 15, 1917,, this action was brought by the plaintiffs, alleging that their nephew, Fred Myers, died on or about December 1, 1912, intestate, unmarried and without issue, leaving them as his only heirs; that in his petition to quiet title Peter Dolan made certain false and fraudulent allegations touching his possession of the land, knowing that Fred Underwood was his tenant in common, and that by this and other false testimony he imposed on the court; and that he made'false statements in his affidavit for publication. Partition and rents and profits were also sought. To this pleading the answer, among other things, set up the statute of limitations. While the decree quieting the title found fifteen years’ adverse possession, there was no allegation of such possession in the petition, neither is' there anything to show that the plaintiff testified falsely, or at all, on the trial, or that any false statement was made in the affidavit for publication which was made, not by the plaintiff, but by his attorney. A motion by the defendant for judgment on the pleadings was sustained on the ground that the proceeding was barred by sections 596 and 597 of the civil code, because not brought within two years after the judgment was rendered. This was an attempt by a separate subsequent action to appeal to the equitable powers of the court to set aside a judgment; but, save in cases in which the judgments complained of were rendered without jurisdiction, courts do not have inherent power to vacate at any time. (Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Blair v. Blair, 96 Kan. 757, 153 Pac. 544; Bell v. Bell, 97 Kan. 616, 156 Pac. 778; Sheehy v. Lemons, 99 Kan. 283, 161 Pac. 662.)
The ground here laid is fraud practiced by the prevailing party — not such fraud as left the court without jurisdiction to render the judgment, but such as to justify its vacation. But this very situation has been provided for by the code, which prescribes that proceedings to set aside a judgment for this reason must be brought within two years after the judgment was rendered, unless the plaintiff is under some disability. (Civ. Code, §§ 596, 597.) Section 600 requires that proceedings to vacate a judgment on this ground shall be by petition verified by affidavit, setting forth the judgment, the grounds to vacate, and the defense to the action. These requirements were followed by the plaintiffs, and likewise must the other prerequisite be observed — to sue within two years. This they failed to do.
It is insisted, however, that because the husband and the stepson were tenants in common, the former could not rightfully proceed as he did; But on the theory that he did not know whether Fred Myers was living or not and had no information to direct how to serve him personally, he did about the only possible thing by way of an attempt to bring him into court, and had Myers been actually served or cognizant of the proceeding so that he could have appeared and set up his interest in the land, such interest would doubtless have been preserved. The petition in the original case, in effect, asked that he set up whatever rights he claimed, and the fact that he was not personally served does not appear to have been the fault of Peter Dolan, who cannot be justly charged with having concealed from the court that his stepson was a cotenant when, as would seem from his attorney’s affidavit for publication, he did not even know that he was alive.
The misfortune of the plaintiffs, that they failed to learn of the decree until some six years after its rendition, cannot operate to extend the running of the statute beyond the period fixed by the legislature. Had the plaintiffs come into court within the statutory period, the matters of cotenancy and adverse possession argued by counsel would have been proper for consideration, but the time for such consideration has passed. ■
The judgment is affirmed. | [
-16,
110,
-36,
-116,
42,
-32,
42,
-8,
-21,
-64,
-90,
83,
47,
-46,
12,
47,
-13,
41,
113,
107,
78,
-74,
6,
-93,
-46,
-13,
90,
93,
49,
-52,
-10,
-33,
76,
32,
-54,
-105,
70,
10,
-59,
82,
14,
45,
-104,
101,
-39,
80,
52,
59,
76,
15,
1,
-65,
-93,
46,
29,
70,
104,
41,
-21,
57,
-112,
-8,
-97,
-115,
-19,
18,
-93,
53,
-36,
-125,
122,
24,
-104,
25,
0,
-32,
115,
-74,
22,
116,
99,
-119,
40,
38,
98,
16,
69,
-25,
-8,
-72,
15,
127,
-99,
38,
-78,
72,
3,
96,
-65,
-99,
120,
20,
-89,
126,
-18,
-44,
92,
104,
15,
-117,
-42,
-77,
15,
56,
-103,
65,
-14,
-93,
34,
113,
-55,
72,
92,
67,
125,
-69,
-113,
-16
]
|
The opinion of the court was delivered by
..Burch, J.:
A. J. Brenn sued the Farmers Alliance Insurance Company upon a policy covering a number of horses, one of which had been killed by lightning, one of the risks injured against. The controversy was as to the amount of recovery, the plaintiff claiming $130, and the defendant conceding but $27.77. The case was heard upon an agreed statement of facts, the trial court sustaining the plaintiff’s claim and rendering judgment accordingly. The defendant'appeals.'
The policy was for $500, and covered horses, mules, and colts owned by the plaintiff. No separate valuation was placed on any animal. The plaintiff had eleven head when the insurance was taken and eighteen when the loss occurred. The defendant is a mutual company, organized under the Kansas statute (Gen. Stat. 1915, §§ 5300-5339); and one of its by-laws, reading as follows, was made a part of the contract:
“It is agreed and made a part of this contract of insurance that each head of live stock covered thereby is a separate and distinct risk and the company shall not be liable for a greater sum per head than placed thereon in the application; and such sum is to be an average price of all stock owned of the class named. Provided that, if at any time the herd is increased this policy shall reach to and cover such increase, but the amount of insurance per head shall be diminished in proportion to the increase, in number, and, if the herd is diminished, the amount of insurance per head shall be proportionately increased; but such increase shall not create a liability upon the part of the company for a greater sum per head than double the price named in the application, and'in no case shall the company be liable for more than the market value of the animal when and where killed, when no price is named in the application.”
The parties disagree in the interpretation of this language. We think it quite clear that the by-law means, as contended by the defendant, that where the amount of risk on each animal is not otherwise stated, each is to be regarded as insured separately for the proportion of the entire amount named that one bears to the number of head covered by the policy at the time of a loss, not to be more, however, than twice what this amount would have been had a loss occurred before any change took place in the size of the herd, nor more than the market value of the animal lost. So interpreted, the by-law means, as applied to the facts of this case, that each animahat the time the policy was written was insured for 1-11 of $500, or $45.45. When the number of animals was increased to eighteen, the . risk upon each was reduced to 1-18 of $500, or $27.77. If the number of horses had been reduced to five, the recovery would not have been $100, but $90.90 (if the animal lost was worth that much), because it could not be more than twice thq original risk of $45.45. If after the herd had been reduced to five an animal had been lost which was worth but $50, that would have been the limit of recovery.
It was agreed, however, (subject to objection as to competency and materiality) that the soliciting agent who induced the plaintiff to apply for the insurance orally represented to him before it was written that the company would pay the full value of any loss, where no value was stated in the application,' and that if he applied for $500 insurance and received it the company would pay the full value of any animal lost, notwithstanding the herd might in the meantime have been increased. The plaintiff contends that by reason of these representations he was entitled to recover the full value of the animal lost, even conceding the correctness of the interpretation we have just placed upon the language of the bylaw. If the representations referred to are regarded as a part of the negotiations leading up to the written contract entered into, they cannot have the effect of modifying its terms, under the familiar rule. The plaintiff, however, suggests that the objection made was one to the admission of evidence, and, having been overruled by the trial court, is now unavailing because of the absence of a motion for a new trial. The case was heard on an agreed statement of facts, and no such motion was necessary. The defendant did "not merely consent that evidence should be introduced showing that the representations, were made; it admitted that to be the fact, subject to its contention that the rights of the parties were not thereby affected. We concur in the modem view of the character of the so-called “parol evidence” rule, namely, that the rule which denies effect to an oral agreement, where it varies a written contract entered into at the same time or earlier, is not merely one of evidence, but of substantive law. The accepted theory is not merely that the writing is the best evidence of the agreement, but that what is embodied in the writing is the actual final contract of the parties, unless affected by fraud or mutual mistake.. Evidence concerning conversations preceding the reduction of an agreement to writing, when offered to contradict the terms of the written contract, is rejected,'not because the testimony proffered is not of the right kind by which to show that certain things were said, but because the fact that they were said cannot itself affect the matter in controversy. The authorities bearing on the matter are collected in Thompson Co. v. Foster, 101 Kan. 14, 16, 165 Pac. 841.
The petition did not ask for a reformation of the written contract because of a mutual mistake, but, inasmuch as the judgment was in favor of the plaintiff, the trial court may perhaps be regarded as having considered it as reformed, if the evidence was such as to warrant that action. By the weight of authority, an insurance contract may be reformed for a mistake of the applicant and the soliciting agent, al-though the latter had no authority to issue a policy or determine its contents. (14 R. C. L. 903, citing note, 11 L. R. A., n. s., 357.) Here, however, the facts indicate, not that the company’s agent represented that matter was to be inserted in the policy which was omitted, but that, knowing the actual contents of the policy, he undertook to tell its legal effect and stated it incorrectly through an error of judgment. Such a situation has been held not to authorize a reformation on the ground of mutual mistake. (Travelers’ Ins. Co. v. Henderson, 69 Fed. 762.)
But a consideration which disposes of this feature of the case is the fact that the statute under which the defendant is organized includes this provision:
“Every policy issued shall have attached thereto a printed copy of the note and application, also a printed copy of the by-laws and regulations of the company, which shall be signed by the president and secretary of the company and the insured, and shall become a part of the contract between the insurer and the-insured.” (Gen. Stat. 1915, § 5319.)
The defendant is a purely mutual company. The persons insured form the membership of the corporation. (Gen. Stat. 1915, § 5310.) The legislative intent clearly was that the by-laws should be made binding on the members and should constitute a part of every contract of insurance made, and that they should affect the measure of liability where they related to that subject. This purpose is not to be defeated by the expression by a soliciting agent of a mistaken opinion as to the force of a by-law. It is the meaning of the by-law itself, and not the agent’s conception of it, that is to control.
If the plaintiff, before a loss occurred, had brought an action for the rescission of the contract, asking to be released from further liability for the premium, a question of an entirely different character would be presented.
The contention is made that the representations of the agent already stated, and the action of the plaintiff in reliance thereon, amounted to >a practical construction of the doubtful language of a contract, which should control. We do not regard the by-law as ambiguous in such sense as to make that principle applicable, nor do we consider the opinion of the agent and the acceptance of the policy by the plaintiff in reliance thereon as amounting -to a practical interpretation by the parties.
After the issuance of the policy and before the loss the by-law quoted was amended by striking out the words italicised in the following provision:
“Provided that, if at any time the herd is increased this policy shall reach to and cover such increase, but the Amount of insurance per head shall be diminished in proportion to the increase in number, and, if the herd is diminished, the amount of insurance per head shall be proportionately increased; but such increase shall not create a liability upon the part of the company for a greater sum per head than double the price named in the application, and in no case shall the company be liable for more than the market value of the animal when and where killed, when no price is named in the application.”
The effect of this change seems to be to remove one of the restrictions placed upon an increase in the risk carried on each animal by a decrease in the number. For instance, in the case already supposed, if the plaintiff’s herd had been reduced to five he might (unless some other provision prevented) have recovered 90.90 for the loss of one head, although it was worth on the market only $50. The clause eliminated obviously had special reference to the situation arising where the size of the original herd was reduced, but, in any event, its elimination does not affect the defendant’s liability here.
The*judgment is reversed and the cause remanded with directions to render judgment in accordance herewith. | [
-78,
124,
-111,
-83,
8,
96,
98,
91,
107,
-88,
-89,
83,
-55,
-61,
21,
105,
-26,
13,
69,
106,
86,
-77,
23,
-80,
-42,
-5,
-13,
-59,
-79,
89,
-18,
94,
73,
32,
-118,
85,
-90,
-62,
65,
84,
-50,
14,
-71,
-19,
-3,
80,
-80,
107,
54,
67,
37,
-97,
-5,
46,
25,
-61,
41,
40,
123,
45,
-63,
-15,
-86,
7,
111,
0,
17,
34,
-70,
33,
90,
46,
-108,
49,
9,
-56,
91,
38,
-58,
-76,
41,
-103,
12,
-26,
111,
33,
92,
-52,
126,
-40,
39,
-41,
-113,
-90,
-110,
24,
34,
1,
-106,
-99,
120,
16,
-121,
-4,
-7,
85,
-99,
104,
19,
-121,
-110,
-93,
-49,
116,
26,
13,
-25,
-107,
51,
101,
-113,
-94,
93,
85,
124,
-101,
30,
-66
]
|
The 'opinion of the court was delivered by
Porter, J.:
The plaintiffs, who are patrons and taxpayers of school district No. 37 in Butler county, brought suit to enjoin the school board from executing an oil and gas lease covering the school grounds and to restrain the defendants from going upon the premises and exploiting for oil and gas. A temporary restraining order was granted, but the court on a hearing refused a temporary injunction and taxed the costs of the proceedings to the plaintiffs, who bring the case here for review.
The quarter section in which the school is located belonged in 1885 to Andrew J. Owen. He and his wife executed a warranty deed to the district, conveying a tract out of the southwest corner of the quarter with the provision that the land was conveyed for the express purpose of schools, and when not used for that purpose or when it should become necessary to change the site the land should revert to the original owner. Within the past two years it has been discovered that the entire school district lies near the center of the Butler county oil field, and the land on all sides of the school site is being exploited for oil.
Andrew J. Owen died in 1888 and by will devised all his property to his wife. Afterwards, she sold the farm subject to the rights of the school district. There have been a . number of conveyances to other parties since. In the fall of 1917, John Madden, jr., procured quitclaim deeds from Sarah Ann Owen conveying whatever rights she had in the school premises, and also procured from the present owners of the quarter section quitclaims of any interest held by them. Madden subsequently transferred his interests to the Revert Oil Company, which was organized for the purpose of taking over the school site and exploiting it for oil and gas. Thereafter, the Revert Oil Company made an offer to .the school district for a lease and agreed to deposit in escrow the sum of $3,500,. which was to be paid to the district in case an election carried and the lease was executed, and also agreed to pay the district $3,500 more out of the proceeds of the first oil produced, and one-eighth royalty on all oil or gas thereafter produced. This proposition was submitted at a special election on the 20th of December, 1917. There was no reservation in the lease permitting the school district to make use of any portion of the site for school purposes. It was the usual oil and gas lease providing for damage to growing crops. The vice-president and the secretary of the Revert Oil Company appeared at the meeting at the time of the election and talked to the voters, and left with the school board a writing purporting to be executed on behalf of the company,, agreeing that if its proposition for a lease was accepted it would, after consulting with the board, move the present schoolhouse forward on the school lot, and if necessary fence off its drilling operations so that the schoolhouse might be continued to be used for school purposes “with entire safety to the pupils” until such time as a new schoolhouse is erected “and properly safeguarded,” and stating the understanding of the company to be that there should be no interruption in the use of the schoolhouse for school purposes by reason of drilling operations. The election resulted in 52 votes for and 32 votes against the proposition. The lease was executed, the first payment of $3,500 was made to the school board, the schoolhouse was moved to another part of the premises, when the suit was brought by the plaintiffs to enjoin further proceedings.
There was testimony showing that the intention is to drill an oil well on the schoolhouse site in close proximity to the schoolhouse; that for each oil well a pit 50 to 60 feet in diameter and from 4 to 6 feet deep is necessary; that the operations would occasion noise from the exhaust of an engine, the turning of bull wheels and sand wheels, the heating of bits with blowers, and the pounding of bits with sledge hammers ; that the oil and gas create an unpleasant odor; and that there is some danger of fire from the wells. The testimony also shows that from 3 to 5 offset wells, and possibly more, would be drilled next to the boundary line of the school premises. There are 'aproximately 150 pupils of school age in the district, the school population having materially increased by reason of the large number of laboring men employed in the oil business who have brought their families into the district.
By the terms of the contract the board agrees to turn over the school site to the oil company, permit it to move the school building to one side, in order that it may use the premises to exploit for oil beneath the surface, permit the erection upon the school lot of derricks, engines, tanks or oil pits, and other appliances and machinery, with the attendant noise, confusion, unpleasant odors, and possible danger to the school children. It appears, too, from the evidence that the drilling on the school site will necessarily result in the school premises being surrounded on three sides by the drilling and operation of offset wells by other oil companies and owners of the oil rights under the adjoining lands. The plaintiff’s contention is that these facts, which are not disputed, establish a probability that th'e conditions will result in the entire loss of the property to the district, and that in the future it will become necessary to procure another school site. On the other hand, the defendants contend that since the district has already been paid $3,500 bonus and is to receive another payment of an equal amount, besides a royalty of one-eighth of all oil that may be produced, it is conclusively established that the plaintiffs will be,relieved from the burdens of taxation, insteád of having such burdens imposed upon them. Section 265 of the c'ode of civil procedure does not authorize the plaintiffs to maintain a suit of this character merely because of the contention that the contract is one which the school board is unauthorized to make. While there are authorities which seem to go to this extent, they do not appear to depend upon a statute worded like ours. In Herald v. Board of Education, 65 W. Va. 765, it was held that residents and taxpayers in a school district may sustain a suit to enjoin a lease of a school lot for oil and gas as unauthorized and void and enjoin the use of the lot for such purpose. Our statute would authorize the plaintiffs to maintain this suit if it appeared that the contract or the acts' complained of “may result in the creation of any public burden or the levy of any illegal tax, charge or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction.” (Civ. Code, § 265; Bunker v. Hutchinson, 74 Kan. 651, 87 Pac. 884; Gas Co. v. Railway Co., 74 Kan. 661, 87 Pac. 883.)
We are unable to discover from the record in what manner the carrying out of the contract may impose burdens upon the plaintiffs; and it cannot be assumed merely because the contract is illegal, or because it is alleged to be so, that it will result ih imposing upon the plaintiffs such burdens.
Whether the trial court denied the application for a temporary injunction upon the ground of the plaintiffs’ incapacity to sue, or because it was held that the contract is one which the board had authority to make, does not appear. Since plaintiffs have not been able to bring themselves within the provisions of the'statute and cannot maintain the suit, it is unnecessary to pass upon the other questions.
The judgment is affirmed. | [
-11,
-18,
80,
44,
58,
-32,
122,
-98,
73,
-93,
-27,
83,
-19,
-40,
13,
105,
-121,
93,
68,
127,
-41,
-94,
83,
-112,
-111,
-5,
-15,
-35,
-79,
78,
-10,
87,
72,
52,
-54,
-43,
-58,
66,
-55,
-36,
-114,
5,
-85,
-50,
93,
0,
60,
120,
50,
11,
113,
11,
-13,
44,
25,
-57,
73,
44,
-39,
41,
81,
-15,
-86,
-121,
111,
7,
-111,
103,
-104,
-61,
-24,
42,
-112,
49,
8,
-24,
59,
-90,
70,
-12,
11,
-119,
-120,
32,
102,
3,
-92,
-17,
-4,
-56,
14,
-6,
61,
-90,
-110,
88,
-78,
0,
-107,
-97,
112,
16,
7,
126,
-30,
5,
94,
125,
4,
-61,
-12,
51,
15,
-88,
-104,
3,
-29,
39,
48,
85,
-55,
-74,
92,
71,
50,
27,
79,
-4
]
|
The opinion of the court was delivered by
Dawson, J.:
In a petition for a rehearing, the point is urged that the jury had a right to disbelieve the testimony of the Bahnmaiers. That may be conceded, but theirs was the only evidence showing whose errand was being prosecuted when the younger Bahnmaier committed the tort. If the testimony of the Bahnmaiers was not true, there is nevertheless a complete lack of evidence to show that the tort-feasor, the younger Bahnmaier, was on any errand of service or agency for his father when the accident occurred; and this leaves nothing upon which to fasten liability on the father, and nothing upon which a new trial could be based.
Eehearing denied. | [
-16,
-24,
72,
-82,
26,
96,
42,
122,
85,
-121,
39,
-13,
79,
-37,
5,
43,
-58,
95,
68,
106,
95,
-109,
23,
-125,
-14,
-13,
122,
-60,
-16,
-56,
-28,
24,
76,
50,
-118,
-43,
38,
11,
-59,
84,
-122,
28,
-70,
-51,
89,
16,
52,
90,
86,
31,
117,
-98,
-29,
46,
28,
-57,
11,
44,
106,
-7,
-47,
49,
-65,
7,
29,
0,
-96,
20,
-98,
38,
88,
44,
-112,
17,
1,
-24,
115,
-90,
-124,
116,
35,
-71,
8,
102,
103,
33,
5,
-31,
-4,
-88,
47,
106,
31,
-89,
-112,
104,
3,
109,
-73,
-1,
115,
112,
46,
-20,
-24,
21,
92,
-92,
3,
-113,
-108,
-95,
-51,
-10,
-68,
8,
-29,
-119,
54,
117,
-52,
-16,
92,
65,
19,
-97,
-98,
-70
]
|
The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action against the defendants for the wrongful death of her husband, who was killed by a fall through a false flooring placed near the top of a tall grain bin. The deceased was an employee of the defendant company, and the other defendant, Hoffman, was the company’s manager.
The defendant company’s answer pleaded that both the rights and liabilities of itself and the decedent were those prescribed by the workmen’s compensation act; that pursuant thereto an arbitration had been made; that the defendant corporation had been found liable to plaintiff and her children in the sum of $2,297.16, payable in weekly installments of $20.15; that a bond had been exacted from the defendant corporation to secure the payment thereof, and that in compliance therewith it had been regularly paying such weekly compensation to the clerk of the court.
The defendant Hoffman’s answer was to the same general effect; he denied the charge of negligence against him individually, and alleged that plaintiff had refused to agree to the arbitration, but that it had been duly made and adjudicated.
Plaintiff’s reply admitted that the milling corporation was within the provisions of the compensation act, but alleged that she had never consented thereto and had not accepted the proceeds thereof, and—
“That the plaintiff was not hound by the decedent’s failure to file an election not to come within the provisions of the compensation law and that the decedent was without power or authority to restrict the liability of the company to the provisions of said law and exclude plaintiff and her minor children from their other remedies, and that in so far as the workmen’s compensation law attempted to restrict the company’s liability as to the dependents of the workman, it was in violation of the state and federal constitution.”
Replying to the answer of' defendant Hoffman, plaintiff alleged—
“That even if said workmen’s compensation law was the proper measure of compensation due plaintiff from the milling company, that the proceedings had thereunder had never been consented to or the benefits received or any money accepted and that as between plaintiff and defendant Hoffman, plaintiff was not bound by the provisions of said law or the remedies or measure of compensation therein provided, and so long as she had not accepted the benefits of the court’s adjudication against the milling company that the proceedings had thereunder did not constitute a bar to her cause of action against the defendant Hoffman.”
Demurrers to the plaintiff’s reply were sustained, and plaintiff appeals. Her first contention is that the title to the compensation act is not broad enough to embrace that portion of the act which treats of the remedies provided for the dependent family of a workman who meets his death in the course of his employment, and that the latter subject is independent and unrelated to the subject of compensation for injured workmen to such an extent that it could not be embraced in the same act with legislation relating to compensation for injured workmen without offending against section. 16 of article 2 of the state constitution which reads:
“No bill shall contain more than one subject, which shall be clearly expressed in its title.”
The court adheres to its decision in Shade v. Cement Co., 93 Kan. 257, 261, 144 Pac. 249, touchingThe sufficiency of the title to embrace the entire subject matter of the act, and now holds that the compensation provided for the dependents' of a workman who is fatally injured in the course of his employment is a germane and pertinent incident to the main subject, and not a different subject requiring a separate act of the legislature. (Huyett v. Pennsylvania R. R. Co., 86 N. J. L. 683.)
Turning then to the main question, the compensation act provides that where the circumstances show a legal liability against a third person, as well as against the employer, the injured workman (and in case of fatal injury, the person acting in behalf of his dependents) may take proceedings against his employer for compensation and against the wrong-doing third party to recover damages, but he shall not be entitled to recover both damages and compensation. (Laws 1911, ch. 218, § 5, Gen. Stat. 1915, § 5899.)
The statute thus gives a sort of dual cause of action — for. compensation and for damages — but qualifies and limits the recovery to the one or the other. The plaintiff has not accepted the' compensation provided for her and her children under the arbitration proceedings, and she has done nothing to estop herself from exercising her dual action conferred by the statute. The time will probably come in the course of the present lawsuit when plaintiff must elect whether she will accept the compensation provided for her, or accept the damages which she may recover against Hoffman (provided she successfully maintains her cause of action against him), but there is nothing in the statute which says or infers that she need choose between the damages and the compensation until she knows definitely which is the more to hér advantage.
In this respect the Kansas statute differs from some other state laws. English and Scotch decisions are cited by defendants, but upon careful examination we discern nothing therein which detracts from the views herein expressed. (See, also, Columbia, Law Review, June 1918, Vol. XVIII, No. 6, p. 598.)
The demurrers to plaintiff’s replies to the several answers of the defendants should be overruled, and the cause should proceed in accordance with the views herein expressed.
Reversed. | [
-48,
120,
-104,
-115,
24,
96,
58,
-40,
121,
-123,
-91,
87,
-17,
-1,
17,
51,
-13,
61,
81,
107,
86,
-77,
19,
42,
-13,
-77,
-77,
-107,
-80,
74,
-4,
-34,
77,
34,
10,
-59,
-26,
26,
-59,
82,
66,
12,
-70,
-21,
-39,
66,
48,
122,
116,
75,
49,
-50,
-13,
46,
29,
-49,
40,
44,
123,
-19,
80,
-79,
-86,
-115,
111,
18,
-78,
7,
-100,
-17,
-40,
30,
-104,
17,
-128,
-24,
113,
-74,
-58,
-12,
107,
-71,
8,
98,
99,
1,
13,
103,
-4,
-104,
46,
-2,
-99,
-89,
-112,
120,
11,
14,
-76,
29,
104,
36,
-10,
116,
-2,
21,
77,
108,
1,
-121,
-10,
-80,
-113,
108,
-100,
-121,
-17,
-125,
50,
113,
-52,
-88,
93,
99,
123,
27,
79,
-102
]
|
The opinion of the court was delivered by
West, J.:
This was an action for damages for cutting down trees. The plaintiff failed in the court below, and appeals. He alleged, in substance, that'near the north side of his feed lot stood a number of Osage orange trees and a number of other trees, sufficient in size to furnish shade in summer and a windbreak in winter. That the defendants, Baldwin, Right, Sullivan and Dodder (who are township trustee, clerk, treasurer, and road overseer respectively) counseled, advised, and directed the other defendants to cut down and destroy a majority of these trees. The defendant officers answered, setting up their official titles and duties, the others averring that they were laborers. The hedge law was alleged to have been adopted by the electors of Douglas county in 1898. It was averred in the answer that on the south side of a public highway on the north side of plaintiff’s land there was a hedge fence, the trees therein being less than 16 feet apart; that the fence was not necessary as a protection to the orchards, vineyards, and feed lots; that the hedge fence was many years old, hardy, and rank, 20 to 25 feet high, with branches extending 15 to 20 feet into the public highway; that it shaded the highway and prevented its drying out after rains, and in other ways was a hindrance to the road overseer and the road dragman in keeping it in good shape for use by the public; that after due notice to the plaintiff and his failure to cut the hedge the defendants proceeded to cut it to comply with the provisions of the hedge law. The reply denied that the trees ever constituted a part of the hedge, and denied that the plaintiff had any hedge fence on that part of his farm. The jury found that the hedge law was adopted in 1898, the majority of the electors being in favor thereof, and had been in force ever since; that the plaintiff refused to cut the hedge or trees along the north side of his land; that there was a line of Osage orange trees growing in. a row along that side; that these trees had been planted as a hedge fence and were 20 to 30 feet high; that there was a public highway along the north side'of plaintiff’s land over which these trees extended, and that they, together with the stone fence and wires attached to the trees and stone fence, constituted the fence along the north side of his land during February and March, 1915. The jury’ further found that the plaintiff, prior to the cutting of the trees, fenced off a tract along the highway, containing about eight acres, and placed cattle therein; that this inclosure extended along the public highway about 60 rods and was fenced off two or three days before the hedge was cut; and that the plaintiff did not fence it off and place cattle therein for the purpose of claiming it as a feed lot and preventing the cutting of the hedge or trees. The jury returned a verdict for the plaintiff for $67 multiplied by three, $201. The defendants moved to set the verdict aside and render judgment for them on the special findings on the ground that the latter were inconsistent with the general verdict. A motion for a new trial was also filed. The former was overruled and the latter sustained, and it was ordered that a new trial be had only upon the issues whether the hedge trees described in the pleadings constituted a hedge fence within the meaning of the law, and the measure of plaintiff’s recovery, if any,, “the find ings of fact made by the jury at the former trial ... to stand as established facts in this case.” Each side appeals, the plaintiffs complaining of instructions; that the call for election adopting the hedge law was illegal; that the notice was insufficient; and that the'court erred in setting aside the general verdict and in granting a new trial. The defendants say there was no error in the instructions; that the hedge law was legally adopted; and that the court committed no error in setting aside the verdict and in granting a new trial, but insist that the undisputed facts require that this court direct judgment in their favor upon the findings returned by the jury.
Counting the day on which the notice was served and excluding the one on which the trees were cut, but 29 days were left, instead of 30 which the statute requires. (Gen. Stat. 1915, § 4826). Until the expiration of the thirty days the defendants had no legal right to proceéd.
The court erred in charging that the 29 days’ notice was sufficient, but as the’ jury found for the plaintiff he was not harmed by this instruction.
The testimony touching the adoption of the hedge law was, in substance, that petitions calling for an election were sent to the township boards for their signatures, which, with the possible exception of two townships, were returned to the sender and filed with the county clerk. A notice of the election in the official paper was produced, reciting that the county board had received petitions signed by more than two-thirds of the members of the township boards of the county requesting the board to submit to the electors the adoption of the hedge law, and that the board had by proclamation called and ordered such election. A notice was also produced reciting that an election had been held, that the vote had been canvassed and found to be 2,420 for and 692 against, and proclaiming the hedge law to be in full-force and effect. After the lapse of nearly 20 years this showing was sufficient to warrant the finding- that the law was adopted. (Gehlenberg v. Saline County, 100 Kan. 487, 165 Pac. 286.)
Generally the granting of a new trial is discretionary, but in this instance the order was to leave the findings as the settled facts in the case, except as to the questions whether the trees described in the pleadings constituted a hedge fence within the meaning of the law and as to the measure of plaintiff’s recovery, if any, on which two points alone the new trial was to be had. Section 307 of the civil code contains this provision:
“A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part, and the new trial shall be only of the issues as to which the verdict or decision appears to be wrong, when such issues are separable.” (Gen. Stat. 1915, § 7209.)
There was considerable evidence on these two issues, and the trial court háving considered it and being dissatisfied with the action of the jury thereon, properly directed that these two matters be submitted to another jury, ánd thereby followed the plan marked out by the code.
The defendants contend that, the evidence was such that it was the duty of the court to direct judgment for them upon the special findings, but their argument is substantially directed to the sufficiency of the evidence, which, as already appears, was not satisfactory to the trial court.
No substantial error appearing, the ruling is affirmed. | [
-16,
110,
-67,
-99,
8,
96,
104,
88,
89,
-77,
-28,
83,
-21,
-117,
5,
113,
-21,
29,
81,
122,
68,
-74,
19,
-125,
18,
-13,
-13,
-51,
-71,
109,
-10,
85,
13,
24,
74,
-43,
-58,
-32,
-59,
28,
-114,
6,
-85,
109,
-47,
80,
58,
43,
118,
75,
53,
31,
-21,
46,
20,
-21,
105,
44,
-21,
41,
49,
-8,
-86,
23,
95,
22,
19,
6,
-120,
-127,
-56,
110,
-104,
53,
0,
-24,
115,
-90,
-106,
116,
13,
-103,
76,
-10,
102,
1,
61,
-81,
-24,
-120,
14,
120,
-83,
-90,
4,
88,
3,
44,
-66,
-105,
124,
16,
6,
126,
-19,
69,
29,
104,
7,
-117,
-48,
-77,
31,
-72,
-100,
3,
-21,
-89,
-77,
113,
-57,
110,
95,
69,
50,
27,
-113,
-47
]
|
The opinion of the court was delivered by
Porter, J.:
The railway company appeals from a judgment in plaintiff’s favor in an action for personal injuries.
The plaintiff, who is a Mexican, alleged in his petition that he was crossing defendant’s tracks in the city of Wichita about midnight, using a path traveled by people generally for many years, and that the sérvant of defendant wantonly, intentionally, maliciously, and with gross negligence, shot plaintiff in the leg, seriously injuring him. The answer set up contributory negligence; it was alleged that Harlan, the employee of defendant, was engaged as a night watchman charged with the duty of preventing freight cars containing merchandise belonging to shippers from being broken open and robbed; that four freight cars in the custody of 'defendant containing valuable merchandise hád been broken open, and that about 2:15 in the morning of February 1, 1915, Harlan noticed two men walking in the yards, who stopped near one of these cars, one of the men being the plaintiff; that Harlan ran across the track toward the men, one of whom shot at him with a pistol, and that the plaintiff then came at Harlan in a. threatening manner with a steel bar in his hands and muttering oaths in Mexican; that in order to protect himself from great bodily harm, Harlan fired the shot which injured the plaintiff; and that he was at the time in imminent danger of great bodily harm at the hands of the plaintiff. It was further alleged that just before the shot plaintiff had been, with some other persons, engaged in a conspiracy to rob the cars of the defendant. The reply was a general denial;
Plaintiff, whose testimony was given through an interpreter, explained his presence in the railway yards of defendant by the statement that he was on his way home from a moving-picture show when he met a friend, who offered him a drink of liquor; that at his suggestion'they stepped between two freight cars, and while standing there taking a drink, plaintiff was shot; and that he did not see Harlan before the latter shot him. He also testified that he1 was in the yards looking for a woman for immoral purposes. Harlan testified that he had been a watchman for about ten years; that on the night in question he found the seals broken on four cars containing oranges; that he heard a noise and saw plaintiff and another man beside the door of one of the cars and had heard several car doors opened before he went around where the men were; that he attempted to arrest the parties and called to them to halt, when the man who was with plaintiff shot at him, and that plaintiff turned and faced him with an iron bar in his hand and muttering in Mexi can; that he shot because he thought something was going to happen, and that it appeared to him plaintiff was going to strike him with the bar; that he did not shoot to kill, but to stop plaintiff; that he wasn’t aiming to shoot him at all; and that after he shot he went over and searched plaintiff, but found no', pistol. He said he shot because he thought the plaintiff was going to strike him with the bar; he shot to protect himself and to capture plaintiff.
There was a general verdict in plaintiff’s favor for $500, and the jury answered a number of special interrogatories. The court overruled defendant’s motion for judgment in its favor on the special findings, and the defendant elected to stand on its motion. The principal findings are:
“Q. 2. Was there any defined or visible foot path running across the railway tracks where plaintiff was shot? A. No.
“Q. 4. Was the place where plaintiff was shot among the switching tracks in defendant’s yards at Wichita where freight cars-were at frequent intervals by day and night placed for unloading? A. Yes.
“Q. 5. What was Harlan’s purpose and motive in firing the shot in question? A. To stop plaintiff.
“Q. 6. Was said Harlan in the fear of sustaining serious bodily injury at the hands of plaintiff when he shot plaintiff? A. Yes.
“Q. 7. Was said Harlan, in firing the shot, moved solely by anger, malice or personal resentment toward plaintiff? A. Noi
“Q. 8. Did said Harlan believe it necessary to attack plaintiff in order to prevent him from molesting or stealing property in defendant’s yards? A. No.
“Q. 9. State just what plaintiff did at the time in question from the time he first saw Harlan until Harlan shot him. A. He moved away.
“Q. 10. Did Harlan • intend to actually shoot the plaintiff when he fired the shot? A. No.
“Q. 11. Was the plaintiff intending to break into any cars or molest any property at the time the said Harlan shot him? A. No.
“Q. 12. Did Harlan believe plaintiff had broken into any cars when he fired the shot in question? A. Yes.
“Q. 13. Were the seals broken on several freight cars that were standing immediately adjacent to the point where the shooting occurred? A. Yes.
“Q. 14. Was the shooting caused simply by a mistaken impression on Harlan’s part as to plaintiff’s intention and purposes in being where he was at the time in question? A. Yes.”
In support of the contention that the findings acquit defendant of liability under the doctrine of respondeat superior, it is argued, first, that the answer to question No. 6 is a finding that Harlan acted in self-defense; .that if he had been defendant in a criminal prosecution or a civil suit, it would have exonerated him from guilt or liability; and that the same defense is available to the master. Among the authorities cited on this point is 3 Cyc. 1073, where it is said: “It has been very generally held that he is justified in repelling the assault by the exercise of such reasonable force ás may be, or as appears to him at the time to be, necessary, to protect himself from bodily harm, though he was not actually in danger.” In the same paragraph it is, also said that “The doctrine of self-defense cannot be successfully invoked, however, where defendant was the aggressor, or where he used more force than was reasonably necessary for his protection,” and authorities are cited in the note to the text on the well-settled proposition that his belief should be such as a reasonable person would entertain under like circumstances.
In the last instruction which the court gave, and which is the law of the case upon this question, the jury were charged that if they found that Harlan was lawfully attempting! to arrest plaintiff, and that the latter threatened to do him great bodily harm, Harlan would be "justified in using such measures to protect himself as would seem proper to a reasonably prudent person at the time and under the circumstances, but would not be justified in using more force than was necessary to protect himself against violence on the part of the plaintiff. The jury must have been satisfied that, while Harlan believed he was in danger of great bodily harm from plaintiff, he used more force that was necessary, and more than would seem proper to a reasonably prudent person at the time and under the circumstances. On this point we must hold that defendant is not entitled to judgment on the ground that the general verdict is overturned by findings showing that the servant acted in self-defense.
The main contention, however; is that findings 5, 8, and 9 conclusively establish that the assault was not within the scope of Harlan’s employment, because they show that when he shot, the plaintiff was in the act of moving away, and that Harlan’s purpose and motive in shooting was to stop him; and also show that Harlan did not believe it necessary to attack plaintiff in order to prevent him from molesting or stealing property in the defendant’s yards. The defendant refers to Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, where it was said:
“The act must not only be done in the time, but in pursuance of the objects of the employment, in furtherance of duty. If done solely to accomplish the employee’s own purpose or device, although in an interval of his regular service, the employer is not liable.” (p. 481.)
In that case, a brakemah after he had ejected trespassers from the train, left the train, ran after them and fired the shot which caused the death of one of them. He did this because after they left the'train, they swore at him. His purpose was to satisfy his personal vengeance upon the trespassers for what they said to him. As a matter of law, it was held that he had stepped aside from his master’s business to perform an act not connected therewith, and that the master was not liable for the consequences of his act.
In Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, the local manager of the company assaulted and struck a telephone operator because she refused to sign a voucher for her wages when she was about to quit the service. It was held that the company was not liable for his wrongful act, because he was' not employed for any such purpose, although it was within the scope of his duties and authority to require her to sign a voucher. It can hardly be said, we think, that the law applied to the facts in those cases, controls the present case. Harlan was a night watchman, armed and employed by defendant to guard and protect its property, prevent freight cars in its custody from being burglarized, and to arrest persons found in the act of stealing from the cars. The fact that when he fired the shot'he was mistaken in his belief that plaintiff had broken into the cars, would not take the act of shooting outside the scope of his employment. He was employed with the knowledge that he might make mistakes in this very respect, for which the master would be liable. The law as to this feature of the case is likewise stated in the instructions. They charged that if the jury found plaintiff had committed or attempted to commit a felony (as defined in other instructions), Harlan had the right to arrest him, either upon actual view of the act, or in hot pursuit of the person who committed it; but that before he would have the right, either as an officer without a warrant, or as a private person, to arrest plaintiff, a felony must recently have been actually committed, or an. attempt made to commit one, and such offense or attempt must have been made by plaintiff.
Harlan had testified that he fired the shot for two purposes, first, because he considered himself in serious danger and fired in self-defense, and, second, that he fired for the purpose of stopping the plaintiff and making his arrest. Under the instructions, the general verdict must be held to include a finding that the plaintiff had not committed or attempted to commit a felony; that he had not broken or attempted to break the seals of the cars. On this feature of the case, it cannot be said as a matter of law, that the findings establish facts showing that the assault of the servant was committed outside of and beyond the scope of his employment.
It cannot be doubted that if plaintiff had, in fact, broken into these cars, or attempted to steal merchandise therefrom, when he was discovered, and reasonable and proper means to protect the company’s property made it necessary for the watchman to shoot the plaintiff, the servant of the company would have been acting within the scope of his employment. As held in a case cited in plaintiff’s brief:
“He was undoubtedly charged by appellants with the authority, and it was his duty to exercise the discrimination necessary to distinguish between burglars, thieves, depredators and innocent persons, and to make arrests when called for by the circumstances, and to determine the degree of force necessary to be exercised. If, through want of proper care or the exercise of the proper discrimination, he mistook appellee for a depredator or person who otherwise should be dealt with in the manner in which he did deal with him, he was certainly acting within the apparent scope of his employment, and the appellants must be held liable for any want of proper discrimination or improper conduct of his in that respect.” (Baker et al. v. Ives, 188 S. W. 950, 958 [Tex. Civ. App.].)
The judgment is affirmed. | [
112,
106,
-8,
-65,
58,
106,
42,
-8,
113,
-31,
39,
83,
-19,
-61,
1,
105,
-13,
109,
117,
43,
-12,
-125,
7,
-32,
-46,
83,
-13,
-59,
50,
74,
100,
86,
77,
32,
10,
-47,
102,
-54,
-59,
28,
-114,
4,
-86,
-24,
-101,
8,
48,
122,
20,
79,
49,
-98,
-5,
98,
24,
-33,
77,
61,
43,
-67,
-48,
113,
-118,
-115,
-3,
18,
-93,
34,
-102,
37,
-24,
28,
-104,
53,
8,
-20,
115,
-92,
-124,
-12,
105,
-119,
68,
102,
99,
32,
29,
-17,
42,
-88,
46,
-70,
-113,
-89,
52,
8,
9,
37,
-98,
-99,
59,
16,
6,
-2,
-7,
93,
93,
100,
1,
-54,
-76,
-79,
-113,
116,
-110,
-105,
-53,
37,
52,
116,
-52,
42,
93,
69,
114,
-101,
-113,
-106
]
|
The opinion of the court was delivered by
Johnston, C. J.:
Plaintiff recovered a judgment for $10,000 against the defendant on account of personal injuries •sustained as a result of an explosion of dynamite in defendant’s coal mine, where plaintiff was employed. The defendant appeals.
The defendant kept on hand a supply of dynamite to be used by the miners in its employ whenever necessary to do any blasting, and sold it to the miners as they called for it. The defendant’s negligence upon which plaintiff’s right to recover is based is that it gave the plairitiff a stick of dynamite of a more sensitive grade than that for which he asked, with the result that while tamping it in preparation for a blast it exploded unexpectedly in his face, causing, among other injuries, the loss of plaintiff’s sight. A claim for aggravated damages was also made by plaintiff on the ground that the defendant had failed to comply with the statute relating to the maintenance of a telephone system in the mine, but this is no longer material, by reason of a negative finding of the jury. The defense was a denial and an allegation that the plaintiff’s injuries were the result of his own negligence.
The principal question is whether the evidence supports the finding of the jury that the defendant’s storekeeper knowingly sold plaintiff a grade of dynamite of a higher, percentage than that asked for. Upon this question the evidence was conflicting, that of plaintiff being largely circumstantial. It appears that the plaintiff asked the storekeeper for 40 percent dynamite, that the latter handed him a stick wrapped in a piece of paper, and that plaintiff placed it in a drill hole prepared for it and was beginning to tamp it lightly with a broomstick when the charge exploded. There was testimony to the effect that the higher the percentage of dynamite the less force it would take to explode it; that the plaintiff was familiar with the use of 40 percent dynamite, which was the kind always used by him during his several years’ experience as a miner, and he knew how much force could be used in tamping the 40 percent grade; and that the force used by him in this instance was not sufficient to have exploded that grade.' While the defendant claimed and offered evidence to show that it had never purchased, kept on hand, or sold to its miners any other than 40 percent dynamite, testimony was given by some of the miners tending to show that defendant’s storekeeper had sold both 40 and 60 percent dynamite; that they had bought the latter grade from it and some of the sticks had that grade marked on them and some of them were taken from a box so marked; and that the force with which the dynamite exploded when used showed it to be of a higher«percentage than 40. The books of the defendant showed that nine days prior to the accident it had sold to one of the miners three sticks of dynamite, and this miner in testifying to this purchase stated that one of the three was 60 percent. The evidence in behalf of the defendant was contradictory of that offered by the plaintiff, but taking all of the testimony, direct and circumstantial, it cannot be said that the findings and verdict are without support. The jury found that the defendant had been handling other grades of dynamite than 40 percent and had actually sold some of the 60 percent; that the stick sold to plaintiff was taken from a box containing 60 percent grade and was of a higher grade than 40 percent; and that the one who sold the dynamite to plaintiff had reason to believe it was more than 40 percent in strength. The findings do not rest on presumptions or conjectures, as claimed by the defendant, and, while the testimony is not as direct and strong as to the grade of dynamite given to the plaintiff as might be desired, we regard it to be sufficient to warrant the submission of the disputed question to the jury, and within the rules under which testimony is measured on an appeal we think that offered by the plaintiff was sufficient to support the findings of the jury.
It is contended that there was no warrant for submitting the question of aggravated damages to the jury, by reason of the failure of the defendant to provide a proper telephone system connecting the different parts of the mine in accordance with the statutory requirements. Whether or not the question was properly submitted under the evidence is no longer material, since the jury in effect found that plaintiff’s injuries were not aggravated by reason of a defective telephone system. The answer to the special question whether the plaintiff’s injuries were so aggravated was, “Untold.” This was equivalent to saying that there was no evidence showing aggravated damages, and it mqst be inferred that no such damages were included in the general verdict.
There is nothing substantial in the objection to the admission of testimony about which defendant complains.
The judgment is affirmed. | [
-16,
-6,
-4,
-116,
58,
96,
42,
-102,
113,
-95,
-73,
-13,
-19,
-113,
13,
43,
-14,
-3,
-44,
104,
-42,
-77,
7,
-61,
-98,
-77,
59,
-59,
-79,
74,
-44,
-44,
76,
48,
74,
85,
102,
8,
65,
-44,
-54,
13,
-87,
106,
89,
32,
56,
58,
116,
11,
49,
-98,
115,
38,
28,
-50,
73,
40,
43,
-68,
-47,
-7,
-126,
-123,
109,
16,
-125,
34,
-97,
39,
-40,
12,
-104,
49,
1,
-88,
114,
-74,
-126,
-12,
105,
-69,
4,
98,
98,
32,
93,
103,
124,
-87,
47,
-82,
15,
-91,
16,
72,
-127,
99,
-98,
-99,
46,
52,
-90,
110,
-3,
29,
93,
108,
23,
-110,
-108,
-79,
15,
100,
-98,
90,
-53,
39,
-76,
101,
-52,
-88,
88,
5,
115,
-97,
-98,
-34
]
|
The opinion of the court was delivered by
Mason, J.:
L. O. Rutter obtained from the Alliance Co-operative Insurance Company a five-hundred-dollar fire insurance policy on a building owned by him. Afterwards he mortgaged the property to C. A. Burns for $250, and a slip was attached to the policy making the loss payable to the mortgagee, as his interest should appear. Thereafter Rutter was adjudged a bankrupt on his own petition, and the trustee sold the property. Still later-it was destroyed by fire. , The mortgagee demanded payment to the amount of his lien, and on being refused brought this action against the insurance company. There was no controversy over the facts, which were fully disclosed in the pleadings, and the court was asked by both parties to render judgment in accordance therewith. Judgment was rendered for the defendant, and the plaintiff appeals.
Various reasons are suggested why Rutter himself could not have recovered. We regard the transfer of title referred to as a sufficient reason, inasmuch as the policy contained clauses making the policy void in case he should sell or transfer the property, without the consent -of the company being indorsed thereon. (19 Cyc. 753; Note, 15 L. R. A., n. s., 827.) The point is sought to be made, in reliance upon Insurance Co. v. Bank of Blue Mound, 48 Kan. 393, 29 Pac. 576, that the by-laws of the company were not binding upon thé plaintiff. The case cited has been doubted (Smith v. Insurance Co., 82 Kan. 697, 703, 109 Pac. 390), but in any event cannot affect the result here, for the provisions referred to were made a part of the contract, and the mortgage rider was expressly made subject to the by-laws.
In response to a demand made by the mortgagee for payment of his claim, the company wrote a letter denying liability on the ground that “Mr. Rutter had abandoned the building some mopths ago, thus rendering the insurance void.” It is argued that by placing the refusal to pay on this ground the company was precluded from relying upon the change of title. But the statement that the insured had abandoned the property seems broad enough to cover the grounds already referred to, or at least not to exclude them from consideration.
The vital question in the case is whether .the contract gave the mortgagee a right to recover notwithstanding conduct of the insured which would have precluded any recovery by him. The policy contained a provision reading as follows:
“If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interests as shall be written upon, attached or appended hereto.”
The language of the rider was:
“Loss, if any, on buildings, to be adjusted with the assured and made payable to C. A. Burns, mortgagee, or assigns, of Wichita, postoffice, State of Kansas, as his interest may appear, subject, however, to all the terms and conditions of this policy and the by-laws of this company.”
The provision above quoted from the body of the policy, or one substantially the same, is required by the statutes of several states. (Note, 135 Am. St. Eep. 750.) By the great weight of authority its effect is to protect the mortgagee against any forfeiture resulting from a breach of the conditions of the policy by the mortgagor, unless such conditions are made a part of the loss-payable clause, or otherwise indorsed on the policy or attached thereto. (14 E. C. L. 1086.) There are a few cases to the contrary (Brecht v. Law, Union & Crown Ins. Co., 160 Fed. 399; 18 L. R. A., n. s., 207), but this court has already adopted the majority view. (Stamey v. Assurance Co., 93 Kan. 707, Id. 96 Kan. 99, 150 Pac. 227.) The question to be here determined is whether the incorporating in the loss-payable clause of the words, “subject, however, to all the terms and conditions of this policy,” amounts to an indorsement or attachment of such terms and conditions, thereby making them applicable to the mortgagee as well as to thé mortgagor. The very purpose of the language seems to be to make it clear that the mortgagee was not to be released from the restrictions laid upon the insured. We interpret it as adopting by reference all the provisions of the policy, and giving them the same force as though they had been again set out at length, thereby making them applicable to the mortgagee, and preventing any exception or immunity in his favor.
In Welsh v. British American, etc., Co., 148 Cal. 223, which is cited in behalf of the plaintiff as in conflict with the conclusion we have reached (but which we regard as not in point because the loss-payable clause contained only the words: “Loss, if any, payable to George D. Welch as his interest may appear” [p. 230] ), it was said of the method of making the conditions of the policy applicable to the mortgagee:
“It would not be necessary to write them out in full upon the policy, which would be practically impossible. A few words making the provisions, or certain of them, as was desired, applicable to the other interest could readily be inserted in the slip containing what is called the ‘loss payable’ clause attached to the policy.” (p 227.)
Our attention has not been called to any decision holding the mortgagee to be relieved from the conditions imposed upon the owner, where the loss-payable clause contained anything which we consider equivalent to the words, “subject, however, to all the terms and conditions of this policy,” for we do not regard such a phrase as, “This slip is attached to and forms a part of policy No. . . . ,” as meeting that description, or as having any effect other than to identify the particular policy to which the slip is intended to apply. Nor do we find any case involving the precise question here presented — that is, where the body of the policy provided that its conditions should not apply to a mortgagee unless they were indorsed thereon or attached thereto, and the “loss-payable” clause in favor of the mortgagee was expressly made subject to all the terms of the policy.
In Longfellow v. Insurance Co., 102 Kan. 473, 170 Pac. 813, the loss-payable clause was substantially the same as in the case at bar, and the mortgagee was held to be merely an appointee to receive the proceeds, but no occasion arose to consider the effect of the portion referring to the terms and conditions of the policy, for the body of that document did not contain any reference to a mortgagee, and his situation would have been no better had the “subject to” clause been omitted from the rider. (Note, 18 L. R. A., n. s., 199.) The same situation was presented in Atlas Reduction Co. v. New Zealand Ins. Co., 138 Fed. 497, but there the court gave an interpretation to the “subj ect to” clause, in these words:
“But the question under consideration is not solved by merely ascertaining the meaning of the words ‘as their interest may appear.’ They do not stand alone, and are not controlling. By the plain terms of the indorsement the consent to pay the loss to Dodge and Stevenson was made ‘subject to all the conditions’ of the policy. This qualifying clause means that the consent was given upon the express condition that the conditions of the policy were not thereby abrogated or waived, but that they should have effect and be respected in like manner as if the indorsement had not been made. It means that a loss, to be payable to Dodge and Stevenson under the indorsement, must be one which, under the conditions of the policy, would be payable to the insured, and that whatever, under those conditions, would defeat the insured’s right to payment in the absence of the indorsement, will equally defeat it in the presence of the indorsement.” (p. 504.)
The judgment is affirmed. | [
48,
122,
-16,
-83,
-128,
96,
58,
56,
89,
-96,
-91,
-45,
77,
-63,
5,
45,
-58,
57,
-31,
40,
86,
-77,
23,
42,
-42,
-77,
83,
-59,
-79,
-33,
-12,
94,
76,
32,
-118,
-43,
-26,
-54,
-59,
84,
14,
-115,
-88,
101,
-35,
80,
48,
75,
112,
79,
65,
-97,
-13,
46,
17,
66,
105,
40,
91,
-87,
81,
-72,
-117,
7,
127,
9,
33,
5,
-104,
103,
96,
12,
-112,
17,
1,
-56,
115,
-90,
-122,
116,
47,
-101,
41,
102,
103,
0,
53,
-17,
-20,
-104,
38,
-58,
-99,
-90,
-106,
88,
-94,
105,
-73,
-99,
109,
4,
-121,
-12,
-18,
-107,
93,
108,
21,
-117,
-10,
-15,
-117,
124,
26,
-121,
-34,
-109,
32,
116,
-115,
-72,
92,
67,
123,
-101,
14,
-36
]
|
The opinion of the court was delivered by
Mason, J.:
Hannah Vann obtained a júdgment against the Missouri, Kansas & Texas Railway Company on account of injuries received by her while a passenger on one of its trains. The defendant appeals.
The defendant maintains that the judgment should be reversed because no valid service of summons was ever made upon it. If it is right in this contention, there is no occasion for • examining any of its other specifications of error. The sheriff’s return recited that the summons had been served by • delivering a copy to an agent of the company to sell tickets at VOswego. The defendant appeared specially and moved to' set aside the service on the ground that the ticket seller to whom the copy of the summons had been delivered was not the agent ^of the corporation, but of a receiver who was then operating the road. The motion'was supported by an affidavit of the district superintendent, to the effect that, although he had filled that position for the company while it was conducting the business, a receiver appointed by the federal court had been in possession of all the corporation’s property, and had been operating it, for some nine months prior to the filing of the petition, and that during that time neither he nor any of the station employees or station agents within his territory, which included Oswego, had been in the employ of the corporation, or had had any connection with it. Within the rule announced in Chilletti v. Railway Co., 102 Kan. 297, 171 Pac. 14, the service was invalid, and should have been set aside. The plaintiff cites a recent case in which the. contrary view is taken (Missouri, K. & T. Ry. Co. v. Hudson, [Okla.] 174 Pac. 1058), but'however debatable the question might otherwise be, it is settled for this jurisdiction by the Kansas decision cited.
The plaintiff suggests that the superintendent stated only that the ágent at Chetopa was not in the employ of the de fendant. The statement was specifically made with respect to that station, but elsewhere in the affidavit it was extended to all others in his jurisdiction, including Oswego. An attempt is made to distinguish the present case from the earlier one, on the ground that here there was no showing as to the contents of the order of the federal court regarding the property of the company, and that as the abstract does not show what evidence was introduced on the motion, there should be a presumption that the decision of the trial court was sustained by proof not before us. The scope of the order appointing the receiver is not important in view of the affidavit that thé employees in charge of the business had no connection with the corporation, and that the receiver had possession of all its property. There is no suggestion that there was in fact any evidence introduced contradicting the superintendent’s affidavit, and the language of the trial court’s' order overruling the motion indicates that it was based upon the theory disapproved by this court in the. Chilletti case, which was decided after the rendition of the- judgment here appealed from. In that case the plaintiff contended that the person served with process had actually been doing business for the company after the appointment of the receivers, but it was held that the evi-' dence showed his' services to have really been performed for the receiver.
The plaintiff further contends that by answering and going to trial the defendant waived any defect in the service. There is a division of judicial opinion on the subject, and in a case decided by the Kansas court of appeals the view which supports that contention was adopted. (Kauter v. Fritz, 5 Kan. App. 756, 47 Pac. 187.) But the rule is definitely established in this jurisdiction that after a defendant, by a prop-, erly restricted appearance, has presented his objection to the service, and it has been overruled, he may then answer and go to trial without losing his right to invoke the judgment of a reviewing court on the question. (Dye v. Railroad Co., 101 Kan. 666, 168 Pac. 1087, citing through a clerical error Gray v. City of Emporia, 43 Kan. 704, 23 Pac. 944, the case intended being the preceding one, Dickerson v. B. & M. R. Rld. Co., 43 Kan. 702, 23 Pac. 936.) This practice is necessary to the» existence of a right to review a decision of the trial court, over-’ ruling a motion to set aside the service of a summons, because in this státe no appeal lies from such an order except in connection with a proceeding brought to reverse the final judgment. (Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061.)
The judgment is reversed and the cause remanded with directions to dismiss the action. | [
-80,
-4,
-12,
-82,
58,
96,
34,
-72,
81,
-109,
-92,
83,
-119,
-54,
16,
59,
-26,
31,
-15,
107,
70,
-73,
7,
-85,
-46,
-45,
-15,
-59,
-73,
72,
100,
-57,
77,
48,
-118,
-43,
102,
75,
85,
28,
-114,
36,
-88,
-24,
89,
72,
48,
120,
22,
71,
49,
-1,
-13,
46,
24,
-61,
45,
45,
-65,
-95,
0,
-16,
-77,
-57,
127,
6,
34,
36,
-100,
-121,
72,
36,
-128,
49,
3,
-8,
119,
-74,
-122,
-12,
97,
-7,
-119,
-22,
98,
97,
21,
-25,
-68,
-88,
46,
90,
-113,
-89,
-112,
24,
99,
37,
-106,
-103,
85,
22,
71,
-4,
-2,
5,
-104,
100,
-127,
-118,
-76,
-77,
-99,
119,
18,
39,
-17,
-79,
16,
112,
-50,
-16,
93,
71,
56,
27,
-114,
-66
]
|
The opinion of the court was delivered by
Lockett, J.:
Defendant Marvin Canaan was convicted of premeditated murder, aggravated robbery, and aggravated burglary. Defendant appeals, claiming the district court failed to: (1) sup press evidence seized in a warrantless search; (2) suppress defendant’s statements made in the emergency room; (3) conduct a Frye hearing as to the admissibility of luminol testing; and (4) permit cross-examination of a prosecution witness.
FACTS:
Sometime in the morning hours of October 20, 1994, Michael Kirkpatrick was murdered. The evening before, he was observed at a bar with Canaan. During the investigation, the victim’s neighbor, Jerry Staley, informed police that Canaan had been at the victim’s house the evening before and had been driving a maroon Oldsmobile. Because the victim had been with Canaan, Detective Harold Hughes of the Johnson County Sheriff’s office and an officer from the Gardner Police Department went to Canaan’s home to ask what Canaan knew of the murder. The officers observed a maroon Oldsmobile at Canaan’s home.
Canaan’s wife informed Hughes that her husband would be home about 1 p.m. and that he was driving a Dodge Ramcharger pickup truck. In response to Hughes’ questions, Canaan’s wife said that Canaan had been wearing a white pullover shirt and burgundy jogging pants that evening. She told Hughes that the pants Canaan wore had been washed and dried but the shirt was in the washer. At the officer’s request, she removed the shirt from the washing machine and gave it to him.
After leaving Canaan’s home, the officers were informed that the defendant’s pickup was parked near the pharmacy in Gardner, Kansas. The officers proceeded to the pharmacy, parked, and waited for Canaan to appear.
Less than 5 minutes later, Canaan returned to the pickup and drove west on U.S. Highway 56. The officers believed Canaan was driving home from the pharmacy. When he turned on 183rd Street in Gardner, the officers realized Canaan was not going home. The officers followed. On the gravel road Canaan sped up to approximately 55 mph. The speed limit was 35 mph.
After Canaan had accelerated to 55 mph, the officers activated their lights and siren and Canaan stopped. When Hughes ap proached, Canaan observed the officer’s identification and accelerated away. The chase reached speeds up to 75 mph.
After running three stop signs, Canaan’s pickup crashed into a tree. Detective Hughes called for emergency medical assistance, approached the wrecked pickup, and found Canaan lying on the passenger side of the truck unconscious. Hughes did not open the truck door. Canaan was removed from the truck and placed on a stretcher by EMS attendants.
Captain Jones (Johnson County) arrived and began to investigate the scene of the crash. He observed a gray wallet lying on the ground just outside the pickup’s passenger door. To identify the driver, Jones removed the driver’s license. It was Canaan’s license. Jones then noticed a black wallet on the floorboard of the truck. Jones examined this wallet and found it contained the murder victim’s driver’s license. Jones replaced the victim’s license and wallet where he had found it.
Later that day, Detective Hughes obtained a warrant to search Canaan’s pickup for
“hair, blood, fibers, pair tennis shoes, blue jacket, and any other clothing which exhibits damage to fabric which could have been caused by cutting or has tissues or blood on it, knives or sharp edged instruments, U.S. currency, illegal narcotics, evidence written or otherwise indicating illegal narcotics transactions, and wallet.” (Emphasis added.)
At the hospital, Detective Scott Atwell was assigned to stay with Canaan until he was released. Atwell, who was not aware of Canaan’s connection to the murder investigation, was to ascertain where Canaan was going, if he was released from the hospital.
While at the hospital, Atwell received a telephone call from a superior officer telling him to photograph.Canaan’s injuries. Atwell believed, and he told Canaan, that the pictures were for the accident investigation. Canaan agreed to be photographed. While the officer photographed the wounds, Canaan told Atwell that he (Canaan) could verify that he did not have the wounds prior to the accident.
Later, Canaan asked Atwell if he knew where his wallet and clothing were. Atwell told Canaan there was a black wallet with a velcro closure on the floorboard of the truck. Canaan said the black wallet was not his. Atwell then asked whose wallet Canaan thought it was. Canaan did not respond.
Canaan also informed Atwell that he did not remember the accident. In response, Atwell asked why Canaan did not stop. Canaan responded that there was cocaine in the pickup that belonged to someone else.
Upon being taken to a regular hospital room, Canaan telephoned his wife. After this conversation, Canaan told Atwell that he now understood why the officers wanted to talk to him. Detective Atwell asked, “Why?” Canaan responded that the officer wanted to ask him about a murder in Edgerton.
During the investigation, the police requested John Wilson of the Regional Crime Lab to conduct luminol tests. Wilson tested Canaan’s Oldsmobile and house.
Canaan filed three separate motions to suppress evidence. Prior to trial, Canaan first moved to suppress the introduction of the black wallet found in the pickup and its contents, and testimony as to the wallet. Canaan asserted that there was no probable cause for the officers to stop him because no warrant had been issued for his arrest and there was no reasonable articulable suspicion that he had committed, was committing, or was about to commit a crime. The district court ruled:
“With respect to the defendant’s Motion to Suppress regarding the stop, the Court would find that Detective Hughes had a reasonable suspicion to stop the defendant’s vehicle; that the observation of the wallet by Captain Jones and the cursory check of identification was reasonable; that the [subsequent] search of the automobile [sic] pursuant to warrant was proper and not tainted by the actions of Captain Jones [policeman who examined the black wallet at the scene].”
Canaan then moved to suppress his statements to Atwell at the hospital. The Due Process Clause of the Fourteenth Amendment to the United States Constitution requires a trial judge, where there is a proper objection, to make a preliminary examination as to the voluntariness of a confession offered by the prosecution, resolve evidentiary conflicts, and submit to the jury only those confessions he or she believes to be voluntary. Jackson v. Denno, 378 U.S. 368,12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). After & Jackson v. Denno hearing, the district judge ruled that Canaan’s statements to Atwell were not made while Canaan was in custody and therefore were admissible.
Canaan then filed a third motion asserting that the luminol testing failed to meet “the criteria of admissibility of scientific tests as set forth in Frye, Lowry, and Deppish.” The district court found that “[t]he luminol testing . . . has widespread acceptance, it’s not novel or new, and obviously the State must lay its foundation, but the Court will not require a Frye test.”
Canaan brings this direct appeal of his convictions for premeditated murder, aggravated robbery, and aggravated burglary.
ISSUES ON APPEAL Failure To Suppress Evidence
The Fourth and Fourteenth Amendments to the United States Constitution prohibit unreasonable searches and seizures. Unless a search falls within one of a few exceptions, a warrantless search is per se unreasonable. Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Upon the hearing of a motion to suppress evidence, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990)(citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 [1978]). If the State fails to meet its burden, the evidence seized is excluded.
The “exclusionary rule” also prohibits the admission of the “fruits” of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained directly or indirectly as a result of the illegally seized evidence or any leads obtained therefrom. This exclusionary principle is known as the “fruit of the poisonous tree doctrine.”
In recent years, the United States Supreme Court has limited the applicability of the exclusionary rule. The exclusionary rule does not apply if the connection between the illegal police conduct arid the seizure of the evidence is “so attenuated as to dissipate the taint.” Segura v. United States, 468 U.S. 796, 805, 82 L. Ed. 2d 599, 104 S. Ct. 3380 (1984). For example, if the evidence was seized pursuant to an independent source, it would be admissible at trial.
Canaan argues that (1) the seizure of the black wallet found on the floor of his truck does not fall within one of the well-delineated exceptions to the requirement for a search warrant and thus is per se unreasonable and illegal, and (2) the search warrants issued to search his truck, Oldsmobile, and house were based upon the illegal seizure of the black wallet. Therefore, according to Canaan, all evidence seized during execution of the search warrants must be suppressed as the fruit of the poisonous tree.
At the suppression hearing, Detective Hughes testified that after he saw Canaan speeding, he activated his lights and siren. Hughes acknowledged he was not stopping Canaan for speeding, but to talk to Canaan about the murder. The State argued to the district judge that where an officer observes a traffic infraction, a stop is lawful, even though pretextual. For support, the State cited Whren v. Untted States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996).
In Whren, plainclothes police officers patrolling a “high drug area” noticed violations of traffic laws. After pulling over the offending driver, they observed and seized two plastic bags containing what appeared to be crack cocaine.
In moving to suppress the evidence, Whren argued that in traffic cases there is a high susceptibility to impermissible pretextual stops by law enforcement officers based on illegal factors such as race. Whren argued that under the circumstances the standard should be, disregarding the traffic violation, whether a reasonable officer would have pulled over an individual. The Supreme Court rejected this argument and held subjective intentions of the officer play no role in ordinary probable cause Fourth Amendment analysis. 517 U.S. at 813.
Under Whren, it does not matter that Hughes initially pulled Canaan over to question him about the murder; the officer’s observation of a traffic infraction provided sufficient probable cause for the officer to justify stopping Canaan. We point out that Canaan was not “stopped” by the officer. Canaan stopped when the vehicle he was driving crashed into a tree while he was fleeing from the officer. The general rule is that flight after the commission of a crime may be an indication or admission of guilt and admissible regardless of the time or stage in the proceedings when the flight occurs. It is not necessary that the flight occur immediately after the perpetration of the crime. It may occur before filing formal charges, before arrest, after indictment, or after arrest. State v. Walker, 226 Kan. 20, 22, 595 P.2d 1098 (1979); see State v. Bowman, 252 Kan. 883, 891, 850 P.2d 236 (1993).
However, it is important to note that probable cause to stop Canaan is not the same as probable cause to search Canaan’s vehicle. The question is, under the circumstances, whether the evidence found in Canaan’s pickup, Oldsmobile, and house was admissible. The State argues there was sufficient evidence independent of the wallet to support probable cause to issue the search warrants obtained before and after the accident. The State points out that Captain Jones retrieved the black wallet from the pickup to identify the crash victim. According to the State, Jones was required by statute to identify and verify the driver involved in the accident.
Captain Jones testified:
“I wasn’t sure who the driver of the vehicle was. I had a driver’s license that said Marvin Canaan, but I didn’t know if that was Marvin Canaan they had on the stretcher or not. So I retrieved the other wallet to see if I could get identification.”
The State’s argument is supported by statute. K.S.A. 8-1611 provides:
“(a) Every law enforcement officer who:
“(1) Investigates a vehicle accident of which a report must be made as required in this article; or
“(2) otherwise prepares a written report as a result of an investigation either at the time of and at the scene of the accident or thereafter by interviewing the participants or witnesses, when such accident under paragraphs (1) or (2) results in injury or death to any person or total damage to all property to an apparent extent of $500 or more, shall forward a written report of such accident to the department of transportation within 10 days after investigation of the accident.
“(b) Such written reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential.”
K.S.A. 8-1612 provides:
“(a) The department of transportation shall prepare and upon request supply to police departments, sheriffs and other appropriate agencies or individuals, forms for written accident reports as required in this article, suitable with respect to the persons required to make such reports and the purposes to be served. The written reports shall call for sufficiently detailed information to disclose, with reference to a vehicle accident, the cause, conditions then existing and the persons and vehicles involved.”
When Captain Jones, while investigating the accident scene, opened the wallet and observed the victim’s driver’s license in the black wallet, the plain view doctrine applied. Under the plain view exception to the search warrant requirement, a law enforcement official can seize evidence of a crime if “(1) the initial intrusion which afforded authorities the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.” State v. Parker, 236 Kan. 353, Syl. ¶ 2, 690 P.2d 1353 (1984).
Captain Jones had a duty to acquire information sufficient to investigate and report on the accident. He recognized that the murder victim’s wallet was evidence of a separate crime and returned the wallet to where he found it, sealed the vehicle with tape, and ordered the vehicle treated as a crime scene, i.e., evidence in the murder of Michael Kirkpatrick. This was proper.
The State does not claim the officers were conducting a search incident to an arrest, nor does it claim they had probable cause and exigent circumstances justifying a warrantless search. Rather the State contends the initial search was to obtain information required by statute, and the information leading to the arrest was provided by that search and a subsequent inventory search.
An inventory search of a motor vehicle is a warrantless search and is not valid unless the police first have lawful custody of the vehicle. See State v. Boster, 217 Kan. 618, 624, 539 P.2d 294 (1975). Police may legally impound a vehicle if authorized by statute or if there are reasonable grounds for impoundment. 217 Kan. at 624 (citing State v. Singleton, 9 Wash. App. 327, 511 P.2d 1396 [1973]). An officer impounding a vehicle may make a “warrantless inventory search of the personal property within the vehicle, in- eluding the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents.” State v. Fortune, 236 Kan. 248, Syl. ¶ 5, 689 P.2d 1196 (1984).
When the owner, operator, or person in charge of a vehicle is capable and willing to instruct police officers as to the vehicle’s disposition, then absent some other lawful reason for impounding the vehicle, the person should be consulted, and his or her wishes followed concerning the vehicle’s disposition. If the impoundment of the vehicle is unreasonable and, therefore, unlawful, the inventory search following impoundment is unlawful. All evidence obtained through an unlawful search is inadmissible and must be suppressed. State v. Teeter, 249 Kan. 548, 552, 819 P.2d 651 (1991).
According to the Singleton court, and cited with approval by the Boster court, one circumstance that constitutes reasonable grounds for impoundment is where the police remove “ ‘an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver.’ ” 217 Kan. at 624 (quoting Singleton, 9 Wash. App. at 332-33). We reaffirmed this factor as grounds for impoundment in State v. Teeter, 249 Kan. at 552.
After the accident, Canaan was unconscious and was taken to the hospital and admitted. He was incapacitated and “incapable of deciding upon steps to be taken to deal with his property.” The police had little choice but to seize the vehicle to assure the security of the property. There were two wallets in plain view. In light of these facts, an inventoiy search was justified to protect the police from any tort claims that might later be asserted. See Boster, 217 Kan. at 623. All evidence discovered at the scene of the accident was lawfully obtained.
Defendant argues evidence seized during execution of the search warrants was fruit of the poisonous tree, i.e., the discovery of the victim’s wallet. The State argued that the victim’s wallet would have been discovered when the search warrant for nárcotics and currency in the pickup was executed. Therefore, the inevitable discovery doctrine applied.
The inevitable discovery/independent source doctrine allows admission of evidence that could have been discovered by means wholly independent of any constitutional violation. For unlawfully obtained evidence to be admitted, the prosecution must establish by a preponderance of the evidence that the unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means. The prosecution need not prove the absence of bad faith in obtaining the evidence. Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 (1984).
The State’s argument is without merit because there was no independent source in that the same officers were involved in the homicide investigation and the accident investigation. Additionally, as previously determined, there is no poisonous , tree. However, because the district judge signed search warrants to search both of defendant’s vehicles and his house, we review whether there was probable cause for the warrants to search Canaan’s vehicle and his house as part of the murder investigation. Before a search warrant may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The application for a search warrant and supporting affidavits should supply the magistrate with sufficient factual information to support an independent judgment that probable cause to search exists. State v. Gilbert, 256 Kan. 419, 424, 886 P.2d 365 (1994).
In determining whether to issue a search warrant, a magistrate should consider the “totality of the circumstances” presented and make a practical, common-sense decision whether there is a fair probability that a crime has been or is being committed and the defendant committed the crime, or that contraband or evidence of a crime will be found in a particular place. On appeal, the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant. State v. Gilbert, 256 Kan. at 424 (quoting State v. Abu-Isba, 235 Kan. 851, Syl. ¶¶ 1, 2, 3, 685 P.2d 856 [1984]).
The affidavit filed seeking the search warrant does not mention that “the wallet” to be seized contained the murder victim’s driver’s license. Therefore, there is no need to determine whether a detached magistrate signed the warrant on the basis of the contents of the wallet. Instead, we examine the search warrant affidavit to determine whether there was a substantial basis for concluding there was probable cause that a crime was committed and that the objects of the search might yield evidence of the crime.
The affidavit for the warrant stated that the victim had been stabbed to death; Canaan had been seen with the victim the night before; Canaan’s wife told the police that at one time Canaan owned large hunting-type knives; Canaan refused to stop and fled when emergency equipment was activated, resulting in his crash the day after the murder; and the victim and Canaan were believed to be involved in illegal narcotics. The search warrant affidavit was based on other evidence and not premised on Captain Jones’ discovery of the victim’s wallet at the scene of the wreck.
“ ‘Probable cause’ to issue a search warrant is like a jigsaw puzzle. Bits and pieces of information are fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been or is being committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.” State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 (1977).
The facts provided in the affidavit create a picture from which a reasonable magistrate could find probable cause to issue a search warrant.
Because there was no fruit from the poisonous tree, and the affidavit contained sufficient information for a reasonable magistrate to issue the search warrant, the search warrant was valid and the evidence obtained from that search was properly seized.
Statements Violative Of Miranda?
Canaan sought to suppress his conversations with Detective Atwell in the hospital emergency room as violative of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). The Miranda rule requires that a person must be warned of certain rights prior to any questioning initiated by law enforcement officers after that person is taken into custody or deprived of his or her freedom in any significant way (detained).
“Custody” means the restraint of a person pursuant to an arrest or the order of a court or magistrate. “Detention” means the tem porary restraint of a person by a law enforcement officer. K.S.A. 22-2202(9), (10).
Canaan asserts that the test is whether reasonable persons would believe themselves to be in custody. He argues he was not free to leave the hospital or able to move around without help. Canaan also argues that because he had been chased by the police prior to the accident and escorted to the hospital by the police after the accident, reasonable persons would believe he or she was in custody.
This argument is not supported by the facts. Canaan was neither arrested nor restrained while at the hospital. He was alone for significant periods of time. Canaan was not arrested for the murder until months after his release from the hospital. The evidence is uncontroverted that the initial reason the police were at the hospital was to find out when Canaan was to be released so that they could later question him about the murder. There is no evidence that Canaan was deprived of his liberty by the police at the hospital. The district court did not err in concluding that Canaan was not in custody or detained; therefore, no violation of Miranda occurred.
Admissibility of Luminol Testing
During the course of the investigation, John Wilson performed a luminol test on the Oldsmobile Canaan was driving the night of the murder. The luminol test indicated the possible presence of blood on the left comer of the driver’s seat and door panel.
An additional luminol test of Canaan’s home by Wilson indicated the presence of bloody footprints on the front porch and step and down the main hallway into the master bedroom. According to Wilson, the footprints turned at the edge of the bed as if someone turned and sat down on the bed. Finally, the luminol reacted when it contacted a watch on a nightstand in Canaan’s bedroom. These items were tested again. A second presumptive test by use of phenolphthalein confirmed the reaction to blood on the Oldsmobile seat.
DNA tests were later conducted by Valerie Fahmow, a forensic chemist for the Johnson County Crime Lab, on a white shirt owned by Canaan and on the watch that was on the nightstand. The luminol’s reaction to the watch was confirmed by a DNA test. The blood on the watch was not statistically similar to the blood of the victim or Canaan, but was consistent with the blood of Jerry Staley, the individual who discovered the murder victim. Staley had previously told the officers he had traded the watch to the victim for cocaine.
Canaan filed a pretrial motion requesting a Frye hearing as to the admissibility of luminol testing. See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Frye test requires that before expert scientific opinion may be received into evidence, the basis of that opinion must be shown to be generally accepted as rehable within the expert’s particular scientific field. The State has the burden of satisfying the Frye test by proving the reliability of the underlying scientific theory upon which the luminol test is based. If the validity of the new scientific technique has not been generally accepted as rehable or is only regarded as an experimental technique, then expert testimony based upon its results should not be admitted into evidence. State v. Hill, 257 Kan. 774, Syl. ¶ 4, 895 P.2d 1238 (1995).
Whether an expert or lay witness is qualified to testify as to his or her opinion lies within the discretion of the trial court, and the district court will not be reversed on appeal absent a showing of abuse of discretion. City of Dodge City v. Hadley, 262 Kan. 234, 241-42, 936 P.2d 1347 (1997). The district court ruled that “[t]he luminol testing . . . has widespread acceptance [in the scientific community], it’s not novel or new, and obviously the State must lay its foundation, but the Court will not require a Frye test.” Judge Cleaver required that a foundation be laid on luminol testing.
At trial, Canaan renewed his objection to the introduction of luminol evidence, asserting luminol is only a presumptive test for blood. In other words, it may indicate the presence of blood, but also reacts similarly with other materials, including common household cleansers. The district court overruled the defendant’s objection, ruling that the fact the luminol test is a presumptive test goes to the weight, rather than the admissibility, of the evidence.
On appeal, Canaan argues the district judge should have conducted a Frye hearing because Kansas has never determined the reliability of luminol evidence. Additionally, Canaan argues for the first time on appeal that there was no evidence that “John Wilson was qualified to testify as an expert in the field of luminol testing techniques or as to the validity and reliability of the exact techniques he used in this case.” Canaan cites State v. Miller, 240 Kan. 733, 732 P.2d 756 (1987), and State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992), for the proposition that the Frye test is both an evidentiary and foundational standard.
The Witte court observed that the Frye court
“deliberately intended to interpose a substantial obstacle to the unrestrained admission of evidence based upon new scientific principles. . . . Several reasons founded in logic and common sense support a posture of judicial caution in this area. Lay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials. We have acknowledged the existence of a ‘. . . misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature.’ ” ’
“ . . Courts should be reluctant to resolve the disputes of science. It is not for the law to experiment, but for science to do so. Without the Frye test, juries would be compelled to make determinations regarding the validity of experimental or novel scientific techniques. As a result, one jury might decide that a particular scientific process is reliable, while another jury might find that the identical process is not. Such inconsistency concerning the admissibility of a given scientific technique or process in criminal cases would be intolerable.’ ” 251 Kan. at 323 (quoting State v. Washington, 229 Kan. 47, 54, 622 P.2d 986 [1981]).
Following the rationale of Frye, both Miller and Witte required the State to prove the reliability of the underlying science and the acceptance of it in the appropriate scientific field. However, Canaan misinterprets these cases. Only when there is a doubt as to the scientific reliability of evidence must the State prove the reliability and acceptance of the science.
Canaan then claims that the State did not lay a proper foundation for Wilson to testify about luminol. We note that the trial court did not require the State to prove the scientific basis for the use of luminol because it found luminol testing is universally accepted. The trial court did require the State to lay a foundation as to Wilson’s qualifications to administer the test. Canaan did not object to Wilson’s qualifications or methods for administering the test until this appeal. A party may not raise an issue for the first time on appeal. However, a review of Wilson’s testimony shows he was clearly qualified to administer the luminol tests and that the underlying science was reliable and accepted.
At trial, John Wilson testified that he has been the chief chemist at the Regional Crime Lab in Kansas City since 1978. Besides supervising other forensic chemists, he analyzes various types of trace evidence (such as blood) and also responds to crime scenes upon request. He is involved in teaching two crime scene classes a year for local law enforcement in Kansas and Missouri to train people how to proceed at crime scenes. He is also involved in teaching some specialized classes, 1-day seminars at local colleges, and occasional classes at various association meetings.
Wilson, who has a degree in biology and chemistry, testified that he had worked at the Johnson County Crime Lab 2 years prior to becoming the chief chemist for the Regional Crime Lab in 1978. Wilson started as a forensic chemist at the Kansas City, Missouri, police lab in 1973 and has been involved in forensic chemistry for approximately 23 years. Wilson has attended a number of classes and various seminars with the American Academy of Forensic Science (an association of forensic scientists). He has also attended a number of seminars at the FBI academy in Quantico, Virginia, and classes on blood analysis at the University of California.
Wilson further testified that he has received training in luminol testing. He has completed a number of classes at the FBI academy, including a crime scene investigation course, and has attended various seminars with the American Academy of Forensic Scientists and the Midwest Association of Forensic Scientists.
Wilson testified that luminol testing has been used by forensic scientists for about 60 years. It has been available for approximately 80 years and scientific papers on luminol were published in the 1920’s. He testified that he had conducted luminol testing hundreds of times and has testified as an expert witness in other criminal cases over the years regarding the results of luminol testing.
Wilson explained how luminol testing works: Luminol is a chemical that reacts with blood and undergoes a chemical reaction that gives off light (chemiluminescence). When blood and luminol come into contact, it essentially causes a very faint blue glow that one can see in the dark. Luminol testing works by placing a luminol reagent in very small concentrations in a sodium hydroxide water solution and then placing it in a spray mister, which creates a very fine mist. The forensic chemist makes the area as dark as possible because the actual spraying needs to occur in total darkness. The forensic chemist then begins spraying the very fine mist in the area to be searched for blood stains. If blood is present, a chemical reaction causes a blue glow. The chemiluminescence of the blood and luminol mixture occurs if it is dark enough and there is enough blood present. Luminol testing is extremely sensitive, depending on what one is looking for and what surface is being sprayed. It is sensitive to 1:1,000,000 to 1:10,000,000 parts per million.
Wilson testified that luminol testing is fairly specific for blood and that there are few things other than blood that cause luminol to react. Forensic scientists use it to locate crime scenes that have been cleaned up and are then able to reconstruct what occurred at the crime scene. They could determine the sequence of events, where the blood was, perhaps how it was cleaned up, and maybe even tracks made by footprints that have blood on them. Luminol can show things like tire tracks, shoe prints, and handprints that are made in blood. The duration of the luminescent results of a positive test before fading will vary. It can last from a few seconds to several minutes. Ideally, it would last long enough to photograph. The time it remains luminescent depends upon fhe material fhe blood is on and how the spray that is being used affects it. In his years of experience, Wilson has had occasion to have positive luminol results for footprints 20 to 50 times. There was one occasion where he was able to follow a person outdoors across a public park for over a quarter of a mile. Wilson stated that the luminol test is generally accepted as a presumptive test for blood in fhe scientific community of forensic science and is recognized as reliable within the scientific community of forensic scientists.
In State v. Stenson, 132 Wash. 2d 668, 940 P.2d 1239 (1997), the defendant challenged the admissibility of phenolphthalein, a chemical similar to luminol in that it is also a presumptive test for blood. The Washington court noted that Florida, California, and Alabama all permit the introduction of evidence that is presumptive for blood. In analyzing how the presumptive blood evidence was used during the trial, the Stenson court held the introduction of presumptive blood test results were admissible so long as the evidence indicates that the test used was a presumptive test only and does not confirm the material tested contains blood. In Stenson, there was significant testimony that the test was only presumptive. There was also testimony about what types of material besides blood could cause a false positive. The Stenson court observed that the fact the test was only presumptive went to the weight, rather than the admissibility, of the test. 132 Wash. 2d at 714, 718. Other states have accepted the introduction of luminol evidence. See, e.g., People v. Hendricks, 145 Ill. App. 3d 71, 87, 495 N.E.2d 85 (1986); State v. Jones, 213 Neb. 1, 6-7, 328 N.W.2d 166 (1982).
Arkansas requires a follow-up test to luminol testing to confirm the presence of human blood related to the crime because luminol can return false positive results by reacting to material other than human blood. Additionally, luminol is not time specific. According to Arkansas courts, luminol evidence, without additional factors relating the results to the crime, may confuse a jury. Houston v. State, 321 Ark. 598, 600, 906 S.W.2d 286 (1995). Similarly, Hawaii has rejected the introduction of luminol tests without confirming tests that indicate blood relevant to the crime scene, finding them more prejudicial than probative. State v. Fukusaku, 85 Hawaii 462, 496-97, 946 P.2d 32 (1997).
The use of luminol is universally accepted as a presumptive test for blood. The State sought its admission as a presumptive test. The State satisfied the Frye test by proving the reliability of the underlying scientific theory upon which the luminol test is based. The scientific technique upon which the luminol test is based has been generally accepted as reliable, and Wilson had been trained to follow the procedures established to test the phenomenon and used those methods properly pursuant to the training.
The fact that luminol also detects some other substances is irrelevant to its universal acceptance as a presumptive blood test. This fact goes to the weight, not the admissibility, of the evidence. In challenging the weight of this evidence, the defendant elicited testimony that informed the jury that luminol also reacts to other substances.
Right To Cross-Examine
The scope of cross-examination is a matter within the sound discretion of the trial court and, absent a clear showing of abuse, the exercise of that discretion will not constitute prejudicial error. State v. Westfahl, 21 Kan. App. 2d 159, Syl. ¶ 3, 898 P.2d 87, rev. denied 258 Kan. 863 (1995). The admission or exclusion of evidence, subject to exclusionary rules, is within the trial court’s discretion. Discretion is abused only when judicial action is arbitrary, fanciful, or unreasonable, or when no reasonable person would adopt the trial court’s view. State v. Haddock, 257 Kan. 964, 978, 897 P.2d 152 (1995).
One of Canaan’s theories was that Jerry Staley committed the murder. The defense sought to impeach the testimony of Staley and his credibility during the State’s case in chief. During its case in chief, the State limited its questions of Staley to the last time he had seen the victim alive, what he had done between the time he had seen the victim alive and when he had found the victim, and what he had done upon finding the victim. Canaan attempted to introduce his theory of the case in his cross-examination of Staley. None of Canaan’s attempts to impeach Staley during cross-examination went to the facts to which Staley previously had testified during direct examination. The trial court informed the defense attorney he could elicit further testimony by recalling the witness when presenting defense evidence.
At trial, Staley, the victim’s neighbor who had purchased cocaine from the victim on the night in question, testified for the State. Staley testified he purchased cocaine at 2:30 a.m. the day of the murder. He also testified to finding the victim’s body. On cross-examination, defense counsel began to question Staley about interviews Staley had with the police where he indicated he had been to the victim’s apartment numerous times the evening before the body was discovered. The district court sustained the State’s ob jection that defense counsel’s question went beyond the scope of the State’s direct examination.
When defense counsel sought on cross-examination to impeach Staley’s credibility by bringing out statements that Staley had been to the victim’s apartment numerous times the evening prior to the murder, the State objected. The trial court sustained the State’s objection to the cross-examination as beyond the scope of direct. Defense counsel then asked specific questions regarding Staley’s telling the police he had visited the victim other times during the evening. After discussing Staley’s statement to the police indicating Staley had used cocaine with the victim two other times during the evening, the State again objected. The district court again sustained the State’s objection, finding that the defense’s cross-examination exceeded the scope of the State’s direct examination.
Canaan cites numerous cases stating that limiting cross-examination to the scope of direct may unconstitutionally interfere with a defendant’s Sixth Amendment right to a fair trial. The facts in those cases are not similar to our circumstances.
Cross-examination may be permitted into matters which were subject of direct examination. Where general subject matter has been opened up on direct, cross-examination may go to any phase of the subject matter and is not restricted to identical details developed or specific facts gone into on direct examination. Questions asked on cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto. State v. Hobson, 234 Kan. 133, Syl. ¶ 8, 671 P.2d 1365 (1983).
The district court limited defense’s cross-examination to the scope of the State’s direct examination. When limiting the cross-examination, the trial judge informed defense counsel that other contacts Staley had with the victim could be admitted during the defense’s presentation of its case in chief. The trial court merely delayed the presentation of evidence and did not prohibit the admission of the evidence. There was no abuse of discretion.
Affirmed. | [
-80,
-22,
-12,
-81,
59,
-32,
42,
24,
-13,
-73,
97,
-13,
-87,
-53,
5,
41,
26,
21,
116,
105,
-43,
-73,
103,
-23,
-86,
-13,
121,
-44,
-77,
-39,
-26,
-33,
76,
48,
-54,
85,
38,
72,
-41,
-40,
-114,
6,
-119,
-16,
90,
2,
32,
59,
118,
15,
-79,
15,
-77,
42,
26,
-29,
73,
60,
74,
-82,
64,
112,
43,
-97,
-49,
22,
-77,
-92,
-66,
15,
-8,
55,
-104,
-79,
32,
-24,
-5,
-122,
-126,
116,
111,
-119,
-116,
38,
99,
32,
56,
-19,
-28,
-119,
14,
62,
-65,
-89,
24,
72,
73,
5,
-106,
-67,
127,
54,
10,
-8,
-5,
86,
91,
108,
6,
-49,
-76,
-111,
-115,
48,
-122,
-102,
-17,
37,
49,
113,
-59,
-30,
87,
100,
112,
-101,
-116,
-76
]
|
The opinion of the court was delivered by
Six, J.:
This is a racial discrimination/hostile environment/constructive discharge case brought under the Kansas Act Against Discrimination, K.S.A. 44-1001 et seq. (the Act). All of the racial epithets that form the basis of the complaint were from a single employee, Harry Bell, a co-equal of the African-American complainant, Eli A. Jackson. A favorable ruling for Jackson from the Kansas Human Rights Commission (KHRC) was reviewed under K.S.A. 44-1011 by the district court and dismissed. Garvey Elevators, Inc., (Garvey) is the employer. On appeal, the Court of Appeals reversed and remanded. 24 Kan. App. 2d 595, 948 P.2d 1150 (1997). Our jurisdiction results from granting Garvey’s petition for review, K.S.A. 20-3018(b), Rule 8.03(a) (1997 Ct. R. Annot. 52). Neither Jackson nor the KHRC filed a cross-petition for review. See Rule 8.03(b) (1997 Ct. R. Annot. 55).
We consider two issues: Did the Court of Appeals err in: (1) deciding that the elements of a hostile work environment were present, and (2) remanding to the district court on an issue of constructive discharge? The answer is yes on both issues. We reverse the Court of Appeals and affirm the district court.
FACTS
Garvey is a grain storage company with administrative offices in Hutchinson, Kansas. It has a Wichita terminal in two separate facilities, the “west elevator” and the “east elevator.” Jackson was hired by Garvey in 1983 as an assistant superintendent, managing the east elevator. The west elevator was managed by Bell, a Caucasian, also an assistant superintendent who had no authority over Jackson. Jackson and Bell were supervised by Clarence Schwemmer, the terminal superintendent. Schwemmer’s supervisor was Jack Hirsch, vice-president of terminal operations. After Hirsch retired, Harold Deardoff, Garvey’s executive vice-president, assumed Hirsch’s duties.
On several occasions, Jackson was assigned by his supervisors to tasks that were physical, rather than supervisory, in nature. In 1985, Hirsch, prompted by a complaint from Jackson, issued a directive that Jackson was to be treated like an assistant superintendent.
In 1989, Jackson was assigned to the project of cleaning grain storage bins. The Caucasian management employees were not involved in the cleaning. When Jackson found out that his assignment to the cleaning project was not to be temporary, but long-term, he quit.
The following factual statement provides the background for our analysis.
Besides the supervisory personnel, the Wichita terminal employed 18 hourly employees including scalemen, gallerymen, basementmen and general maintenance personnel. Of those 18, two or three were African-American. Stan Robertson, an African-American who was employed as a scaleman in the west elevator, testified as a witness for Jackson. Dale Reynolds, a Caucasian scale-man in the west elevator, testified as a witness for Garvey.
Hirsch supervised the Wichita facility. Although his main office was in Hutchinson, Hirsch visited the Wichita facility on the average of twice a month.
Shortly after Jackson began working for Garvey, he was dissatisfied about how he was expected to perform his job. A difference of opinion arose as to the method Jackson was using to mix the grain at the east elevator. Bell ordered Jackson to mix the grain Bell’s way. Jackson took this matter to Hirsch, who told Jackson and Schwemmer that Jackson was to mix the grain by Jackson’s own method.
On another occasion, Schwemmer reassigned Jackson’s 3 full-time employees to another job. Jackson complained to Hirsch, who investigated the situation and detennined that the assignment was justified. However, he directed Schwemmer to return Jackson’s employees as soon as possible and to only reassign them in cases of serious emergency.
In 1985, Schwemmer assigned Jackson to “probe the sheds” (inserting a long probe into the grain and retrieving a sample of the grain to send to the state inspector). Jackson testified that he did not consider shed probing to be part of his job description. Jackson accepted the assignment. He told Schwemmer, however, that he would not probe again until both Schwemmer and Bell had done so. Schwemmer testified that both he and Bell had probed the shed before Jackson’s employment with Garvey.
Schwemmer reported Jackson’s statements regarding future shed probing assignments to Hirsch, who then called a meeting in August of 1985. Jackson, Schwemmer, Bell, and Hirsch were present. Hirsch and Jackson both testified that the purpose'of the meeting was to clarify Jackson’s job duties and responsibilities. Jackson testified that the meeting also was to discuss the racial tension and derogatory comments that were being made at the plant.
Hirsch followed up the August meeting with a letter to Jackson, detailing Schwemmer’s, Bell’s, and Jackson’s duties in the operation of the east elevator. Jackson testified that he complained to Hirsch about both his procedural difficulties and his belief that the problems were racially motivated. However, Hirsch testified that Jackson only related the procedural nature of the problems.
According to Jackson, Bell began making derogatory racial statements approximately 3 to 4 months after Jackson had been hired. While Jackson and Robertson were together with Bell, Bell said, “What do you think about those two nigger coaches?” (Bell was referring to high school basketball coaches.) Robertson asked him what he said, and Bell then repeated the question.
At another time, Jackson was present when Bell told another employee that there was no time to shut down the facility to make repairs and the employee would have to “nigger-rig it.” Jackson also testified Bell commented that “if Blacks weren’t so lazy our taxes wouldn’t be so high.”
The basic communication route between the east and west terminals was by two-way radio. Jackson testified that once Bell was speaking with Robertson on the radio, and they were having difficulty hearing each other because of the radio connection. Robertson radioed Bell that the radio was “fuzzy,” and Bell called back and said “no, it’s not the radio that’s fuzzy, it’s the Black man using it” or it was “those Black voices.”
Jackson testified that he complained to Schwemmer about the “black voices” radio comment. Jackson was extremely angry and Schwemmer told him to “cool off” and they would speak about it later. Jackson told Schwemmer that he wished to speak about it then and asked why he allowed Bell to “do and talk to people the way he does.” Schwemmer replied that Bell could say and do anything he wanted, as long as Schwemmer said he could.
Schwemmer testified that he believed that Bell was not making a derogatory racial comment, but that Bell was just attempting to identify who was calling him on the radio.
The examination of Jackson by Garveys counsel concerning Bell’s comments over the radio proceeded:
“Q. And as the general superintendent you, yourself, carried a [two-way radio] hand set?
“A. Yes.
“Q. And you had that with you at all times, didn’t you, sir?
“A. I would say 99 percent of the time.
“Q. You also had that set on during the full workday, correct?
“A. Yes.
“Q. So you were in a position to hear Mr. Bell’s communications not only to you but to other employees that he was talking to, is that correct?
“A. Yes. But there were times I would have to go to the bathroom.
“Q. And is it also true, sir, that so far as your overhearing of Mr. Bell’s communications during the day over the radio system that other than the remark about Black voices, that’s the only time you heard Mr. Bell make a racial remark over the radio system, isn’t that correct, sir?
“A. Yes. That is correct.”
Jackson was questioned about previous statements that he made regarding the number of racial statements Bell made. Before the proceedings here, Robertson filed a discrimination action against Garvey. During Jackson’s testimony in Robertson’s case, the following exchange occurred between Garvey’s attorney and Jackson:
“Q. As I understand your earlier testimony there was an incident when you overheard Harry Bell use the term ‘nigger coaches,’ and there was an occasion when he was talking to Marvin Weigand in which you overheard him use the term ‘nigger-rig.’ Now, other than those two occasions, have you ever heard Harry Bell make a racial remark to anyone?
“A. Not that I can remember.”
Jackson explained:
“Q [By Garvey’s Attorney]. But today in this [Jackson’s] hearing you now remember additional comments by Harry BeE?
“A. Because he was talking to me. Harry Bell was talking to me on these additional comments.
“Q. Is it your testimony .... [that when] you answered my question during the Robertson case, that you were excluding the racial remarks that he made in your presence?
“A. When he and I were alone those were excluded.”
Jackson testified that the comments by Bell never decreased, although the problem did diminish, because he attempted to avoid Bell whenever he could.
Other Garvey employees testified to comments they heard Bell make. Ken Byard, a Caucasian in charge of construction and maintenance, said Bell commented, “[I]t’s hard enough for me to control these Mexicans let alone a nigger trying to do it.” Also, Bell would refer to Jackson’s office in the east terminal as the “nigger hut.” These type of comments occurred every time Byard came to the facility.
Robertson said Bell made comments every day using the words “nigger” and “Black ass.” He testified that even before Jackson started working at Garvey, Bell made derogatory racial comments about Jackson. According to Robertson, (1) Bell could not understand how Pillsbury would let a “nigger” run the elevator (Jackson previously had worked for the Pillsbury Company), (2) after Jackson started working at Garvey, Bell said “if he wanted a Black boy or a colored man to run the elevator, we could have put you down there instead of EM Jackson,” (3) Bell would refer to a white employee who became friends with Robertson or Jackson as “what’s-a-nigger,” and (4) Bell made negative comments about Robertson’s driving a white man’s car. Robertson also testified about the “nigger coaches” and “Black voices” comments.
Bob Baker, a Caucasian transferred to Wichita in anticipation of possibly replacing Schwemmer, testified that Bell said that all black people were lazy and that Jackson’s only problem was that he was black. Bell also told Baker that Jackson spoke just like a “nigger.” Baker testified that when the bin cleaning decision was made, Bell said that he was not going to be involved, because the “nigger’s going to do it.”
Schwemmer testified that he shared a desk with Bell and that he never heard Bell make a derogatory or a racist remark to anyone. He said the group was professional and would not make racial comments. He said that there was no racial animosity between any of the employees at Garvey. Schwemmer did admit that Jackson reported he felt that his job assignments were racially motivated. Schwemmer maintained that Bell never used the term “nigger.”
Both Hirsch and Deardoff testified that Jackson did not complain to them about Bell’s racial remarks. Jackson confirmed that he did not complain to Deardoff. Hirsch testified that although Jackson informed him about the operational difficulties he was having, he never reported any racial problems. Byard testified that Hirsch was aware of the racial comments by Bell. Robertson testified that he told Hirsch about the racial problems when Robertson left Garvey s employ in 1986. Jackson testified that he did inform Hirsch about the problem, on more than one occasion.
According to Baker, he often told Deardoff about the racial problems, and Deardoff said that although Bell and Schwemmer might be prejudiced, Deardoff was not.
Deardoff denied that Baker reported these issues to him and noted that Baker brought an age discrimination claim against Garvey when he was laid off.
Robertson testified that he complained to “management” about the comments by Bell, but eventually stopped complaining because nothing was ever done about it.
Because Jackson and KHRC did not seek review on the rejection of Jackson’s disparate treatment claim by the Court of Appeals, the facts concerning grain storage bin cleaning which are in 24 Kan. App. 2d at 599-600 are not before us.
The District Court’s Opinion
The district court reviewed the record and transcripts from the KHRC proceeding de novo under K.S.A. 44-1011(b)(3). The journal entry of judgment contained 34 findings of fact and 17 conclusions of law. Summarizing, the district court concluded:
(1) Garvey was not liable for Bell’s racial remarks because the supervisory personnel had not been sufficiently informed of Bell’s conduct, (2) Garvey was not liable for discriminating against Jackson in job assignments because it had legitimate reasons for its action, and (3) Jackson’s working conditions were not so intolerable that a reasonable person would have felt compelled to quit; thus there was no constructive discharge. The district court set aside the KHRC’s order and dismissed Jackson’s complaint.
The Court of Appeals Opinion
The Court of Appeals concluded that: (1) as a matter of law, the evidence showed that Jackson was subjected to a racially hostile work environment “as a result of Bell’s continuous barrage of racial epithets.” 24 Kan. App. 2d at 604; and (2) the work environment constituted an unlawful employment practice under K.S.A. 44-1009(a). 24 Kan. App. 2d at 603.
The Court of Appeals affirmed the district court’s findings that: (1)Garvey had a legitimate, nondiscriminatory reason for Jackson’s role in the grain storage bin cleaning project and (2) Jackson had failed to prove that Garvey’s reasons were pretextual. Thus, Jackson’s disparate treatment claim was rejected. 24 Kan. App. 2d at 603-04. The Court of Appeals remanded for determination whether Jackson was constructively discharged and, if so, to determine the nature and extent of the award to be entered under K.S.A. 44-1005. 24 Kan. App. 2d at 604.
DISCUSSION
Garvey contends the Court of Appeals erred in:
(1) concluding, as a matter of law, that the racist attitudes of an elevator employee gave rise to the existence of a racially hostile work environment,
(2) making factual findings as to witness credibility,
(3) charging Garvey with knowledge of discriminatory acts based on a mid-level supervisor’s knowledge (Schwemmer) of an employee’s (Bell) racist attitudes, and
(4) remanding to the district court to rehear the issue of constructive discharge, where:
a. Jackson’s resignation was not related to the harassment complained of, and
b. the district court would be considering the same evidence and applying the same legal standards used in making its initial ruling.
As a prologue to our discussion, we reference our standard of review. In Beech Aircraft Corp. v. Kansas Human Rights Commission, 254 Kan. 270, 275, 864 P.2d 1148 (1993), we said:
“Where the district court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the district court’s conclusions of law. [Citation omitted.] The same rule applies to a trial de novo arising from a Kansas Human Rights Commission proceeding.”
Thus, here, if there is substantial competent evidence to support the district court’s findings and the findings are sufficient to support the court’s conclusions, we will not disturb the conclusions on appeal. Although the case before the district court for de novo review was entirely on paper, an appellate court reviewing the record does not have the same prerogative as the district court to evaluate the credibility and weigh the evidence.
We addressed review of documentary evidence in Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990):
“ Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de novo what the facts establish.’ ” (quoting Stith v. Williams, 227 Kan. 32, Syl. ¶ 2, 605 P.2d 86 [1980].)
However, we have crafted an exception to the documentary evidence exception.
“An exception to the rule . . . exists where there is conflicting written testimony and the court is called upon to disregard the testimony of one witness and accept as true the testimony of the other. In such a case, the standard of review on appeal is whether the findings of the district court are supported by substantial competent evidence.” In re Adoption of Baby Boy B, 254 Kan. 454, Syl. ¶ 2, 866 P.2d 1029 (1994).
Here, there is transcribed testimony of many persons, resulting in conflicting statements. The district court’s determinations of credibility of the evidence in the record should stand, provided there is sufficient evidence to support its findings.
A brief review of the law of employment discrimination is appropriate.
K.S.A. 44-1009(a)(l) of the Act provides:
“It shall be an unlawful employment practice:
“(1) For an employer, because of the race . . . of any person to refuse to hire or employ such person to bar or discharge such person from employment or to otherwise discriminate against such person in compensation or in terms, conditions or privileges of employment.”
Title VII of the federal Civil Rights Act of 1964 § 703(a)(1) makes it illegal “to discriminate against any individual with respect to . . . terms, conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a) (1994). Given the similarity of the language of the state and federal provisions, it is appropriate to look to federal civil rights jurisprudence for general rules of construction.
Hostile Work Environment
The United States Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993), a sexual harassment case, said:
“whether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”
Payne v. General Motors Corp., 731 F. Supp. 1465, 1472 (D. Kan. 1990) observed:
“In order to establish that he worked in a racially hostile environment, a plaintiff must prove ‘more than accidental or sporadic incidents of discrimination; [plaintiff] must show that “discrimination was the company’s standard operating procedure — the regular rather than the unusual practice.’ ” Pitre v. W. Elec. Co., Inc., 843 F.2d 1262, 1267 (10th Cir. 1988) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. at 336 n. 16, 97 S. Ct. at 1855 n. 16). Casual comment or conversation will not trigger equitable relief pursuant to Tide VII. Accord Rogers v. Equal Employment Opportunity Comm’n, 454 F.2d 234, 238 (5th Cir. 1971), cert. denied, 406 U.S. 957, 92 S. Ct. 2058, 32 L. Ed. 2d 343 (1972). Instead, there must be ‘a steady barrage of opprobrious racial comment.’ Johnson v. Bunny Bread Co., 646 F.2d 1250, 1257 (8th Cir. 1981).”
Mack A. Player, in his treatise Employment Discrimination Law (1988) (hereinafter “Player”) provides an overview of employment discrimination law.
With regard to hostile working environments, Player states:
“To be actionable harassment must be in the working environment. ... In addition, the harassment must be attributed to the defined “employer.” Standing alone, work-place harassment by fellow co-equal employees will not violate the [civil rights act] because such actions are not those of a defined “employer.” To attribute employee conduct to the employer, the employer must know or have reason to know of the employee harassment, and then fail to take reasonable and prompt action to stop the harassment. Only if the employer fails to correct the employee harassment will the employer be liable.
“If the working environment becomes so hostile that a reasonable person would deem the conditions to be ‘intolerable,’ and the employee quits because of that environment, the quitting will be treated and remedied as a discharge. Quitting as a reasonable response to illegal treatment is a ‘constructive discharge.’ ” Player § 5.60.
We first consider whether the Court of Appeals erred in determining that the elements of a hostile work environment were present here.
Before the Court of Appeals, KHRC and Jackson challenged the district court’s findings of fact Nos. 17 and 18. The findings were:
Finding of fact No. 17: “With the exception of a phone call to Hirsch which preceded the memorandum in August, 1985, Jackson’s complaints to Hirsch were presented solely as work related disputes without racial overtones.”
Finding of fact No. 18: “Hirsch and Jackson each held the other in high regard and on every occasion that Jackson came to Jack Hirsch with a complaint, Hirsch acted promptly to rectify the problem, and Jackson would concede that Hirsch stood by him 100%.”
The Court of Appeals held that there was substantial competent evidence in the record to support numbered findings 17 and 18 of the district court. 24 Kan. App. 2d at 602. No challenge to findings 17 and 18 is before us. Findings 17 and 18 are important because under the hostile environment theory, if the harasser is not the victim’s supervisor, the company cannot be held liable unless it knew or had reason to know of the hostile environment and failed to take prompt and effective action to remedy the situation. Player § 5.60. Bell was not Jackson’s supervisor; he was a co-equal employee. (They both were assistant superintendents each in charge of a separate terminal.)
Also challenged by KHRC and Jackson before the Court of Appeals was the district court’s finding of fact No. 23 and conclusion of law No. 14.
Finding of fact No. 23:
“At the Commission hearing Jackson expanded on his initial complaints to allege that, during the course of his employment, Bell made other racial remarks in his presence (when no one else was present) and such remarks were a continuous thing. Bell did not testify to rebut the making of racial comments and no reasonable explanation was offered to explain this absence as a witness. Mr. Jackson indicated that the racial remarks had stopped by the time of his resignation evidently because Jackson avoided contact with Bell. Significantly, the only complaint Jackson made concerning racial remarks was a phone conversation in early 1985 with Mr. Hirsch. In the phone conversation (which preceded the 1985 meeting to clarify Jackson’s job duties) Hirsch told Jackson he would take care of it. Thereafter, from mid-1985 to the time of his resignation in 1989, Jackson never reported to Hirsch or any other supervisor that the problem was not resolved or that the racial remarks continued.”
Conclusion of law No. 14:
“Complainant has not met his burden to prove respondent knew or should have known of the “continuous” racial comments by Harry Bell. Mr. Jackson tolerated the conduct by avoiding contact with Bell, but he made no reasonable effort to inform respondent of the problem. The only complaint made was in early 1985 in a telephone call to Mr. Hirsch. No complaint was made about any racial comment from mid-1985 to the time of complainant’s resignation in 1989, and there is no persuasive evidence which leads the court to conclude that respondent knew or should have known of the comments which complainant acknowledges occurred only when he was alone with Bell. Respondent is not hable for a failure to act where it does not know and could not know of the problem. Higgins v. Gates [Rubber Co., 578 F.2d 281 (10th Cir. 1978).]”
The Court of Appeals rejected neither finding 23 nor conclusion of law 14; rather, the panel criticized both “not so much for what is stated but because of what is not stated that was uncontroverted by the evidence.” 24 Kan. App. 2d at 602. The Court of Appeals made its own finding that Schwemmer s testimony “that he did not ever hear Bell make a racial comment is not susceptible to belief.” 24 Kan. App. 2d at 603. The Court of Appeals opined that it was “wholly unreasonable to conclude Schwemmer did not have an awareness of Bell’s racist attitudes” and imputed knowledge to Garvey. 24 Kan. App. 2d at 603.
Before the Court of Appeals, Jackson and KHRC had argued that: (1) a racially hostile environment was “beyond dispute,” (2) the district court erred in concluding that management was not aware of Bell’s offensive remarks, and (3) Garvey management should have .known of the offensive remarks. Jackson and the KHRC also contended that “[t]here is no substantial evidence to support the district court’s finding that Garvey Elevators did not condone a racially hostile work environment.”
The Court of Appeals observed:
“Throughout its findings and conclusions, the district court ignores the uncontroverted evidence that conclusively establishes: (a) Harry Bell is an outspoken racist, and (b) Clarence Schwemmer knew or should have reasonably known of Bell’s racism and the effect of that racism on working conditions for Jackson and other African-Americans working at the terminal. Both Jackson and Robertson complained to Schwemmer about Bell’s racial remarks. Day in and day out, Schwemmer shared a desk with Bell. Schwemmer’s testimony that he did not ever hear Bell make a racial comment is not susceptible to belief. It is wholly unreasonable to conclude Schwemmer did not have an awareness of Bell’s racist attitudes.
“Schwemmer was the superintendent of the terminal. What he knew or should have known is imputed to Garvey. We conclude that as a matter of law the evidence shows Jackson was subjected to a racially hostile work environment constituting an unlawful employment practice under K.S.A. 44-1009(a).” 24 Kan App. 2d at 602-03.
In so ruling, the Court of Appeals made a credibility judgment. The district court’s findings and conclusions were supplemented on the ground that there was other evidence in the record that supported KHRC and Jackson’s position.
The function of the appellate court is not to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. Our only concern is with evidence that supports the district court’s findings and not with evidence that might have sup ported contrary findings. Care Display Inc. v. Didde-Glaser, Inc., 225 Kan. 232, 237, 589 P.2d 599 (1979).
We have said that in reviewing a district court decision, we must accept as true the evidence and all inferences supporting the findings. We must disregard any conflicting evidence or other inferences. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377-78, 855 P.2d 959 (1993).
With the Hmitations on appellate review in mind, we examine the evidence supporting the district court’s findings and conclusions on hostile environment. The district court’s findings and conclusions on constructive discharge, which we discuss later in the opinion, also support the conclusion of the absence of a hostile environment.
1. Jackson’s complaint before KHRC listed 3 instances of Bell’s racial remarks, all of which occurred early on in his employment with Garvey. (Finding 20.) These specific remarks occurred early on in Jackson’s employment and were far removed from the time of his resignation (Finding 21). Jackson testified under oath in an earlier KHRC proceeding involving Robertson that those were the only times he heard Bell make a racial remark.
2. Although Jackson testified he had complained to Hirsch about Bell’s racial remarks before the August 1985 meeting at Hutchinson, Hirsch disagreed.
3. Schwemmer testified that he shared a desk with Bell and he never heard any racial remarks by Bell, except the “Black voices” comment.
4. Jackson said that he never contacted or complained to Dear-doff, Hirsch’s successor, about racial remarks by Bell, or for that matter, about any other aspect of his employment with Garvey Elevators. (Finding 25.)
5. Jackson testified that at the time of his resignation, Bell’s racial comments had stopped because he just avoided contact with Bell. (Part of Finding 23.)
6. Jackson’s complaints of racially derogatory remarks are directed only at Bell. Jackson and Bell held equal employment rank and neither had supervisory authority over the other. (Finding 19.)
The Court of Appeals erred in substituting its judgment for that of the district court and in (1) making factual findings as to the weight of the evidence and credibility of witnesses, (2) concluding that the environment was sufficiently racially hostile to violate the law, and (3) charging Garvey with knowledge of the hostile environment.
We now review the Court of Appeals’ remand on an issue of constructive discharge. Before the Court of Appeals, Jackson and KHRC asserted that the district court’s conclusions of law Nos. 14 through 17 should be reversed because they were not sufficiently supported by the findings of fact. We have previously set out conclusion No. 14. Conclusion of law No. 15 states: “Complainant’s working conditions did not reach the level of intolerability as would compel a reasonable person to quit and his resignation did not amount to a constructive discharge.” Conclusion of law No. 15 is neither referenced in the Court of Appeals’ opinion nor challenged before us by either Jackson or the KHRC.
Conclusion of law No. 16 addressed Jackson’s job assignments, concluding: “Complainant did not present persuasive evidence that the legitimate reasons offered by the respondent were a pretext for discrimination.” (This conclusion was neither referenced by the Court of Appeals nor challenged before us). Conclusion of law No. 17 dismissed Jackson’s complaint.
The Court of Appeals, as a result of supplementing finding of fact No. 23, held “as a matter of law the evidence shows Jackson was subjected to a racially hostile work environment constituting an unlawful employment practice under K.S.A. 44-1009(a).” 24 Kan. App. 2d at 603. The Court of Appeals remanded to the district court for determination “whether the discriminatory acts were sufficient to establish a constructive discharge from employment.” 24 Kan. App. 2d at 604.
Findings of fact that support the district court’s conclusion that the requisite level of intolerability to justify constructive discharge had not been met are:
Findings Nos. 17 and 18 set out earlier in the opinion (upheld by the Court of Appeals and not challenged here).
Finding of fact No. 21 (not challenged on appeal): “The specific racial remarks complained of by Jackson in said written summary occurred early on in Jackson’s employment and were far removed in time from the date of his ultimate resignation.”
Finding of fact No. 22 (not challenged on appeal): “The majority of Jackson’s contacts (95%) with the west elevator office (and Bell) were over the two -way radio system. Jackson testified that, except for Bell’s comment about the “Black voices,” he never heard Bell make a racial remark over the two-way radio system."
Finding of fact No. 23 (supplemented but not rejected by the Court of Appeals and quoted earlier in this opinion).
Finding of fact No. 25 (not challenged on appeal):
“Deardoff continued Hirsch’s policy of periodic visits to the terminal site to confer with supervisory personnel, including Eli Jackson. Deardoff testified that in none of such visits had Jackson indicated he was in any way dissatisfied with any aspect of his employment with Garvey elevators. Jackson never contacted or complained to Harold Deardoff concerning job assignments, work procedures, or remarks or other actions by Harry Bell, or on any other aspect of his employment with Garvey Elevators.”
We conclude by noting the significance of Finding of fact No. 33 (not challenged on appeal): “Jackson’s decision to resign was the direct result of his assignment to the bin cleaning project. He felt the job assignment signaled a trend back toward unfair job assignments of the type he experienced during his initial years of employment with respondent.”
These findings are sufficient to support the district court’s conclusion that the racial atmosphere was not intolerable.
We certainly do not condone the racial animus in the remarks attributed to Bell appearing in the record. However, we must be guided by the rules of appellate review. The legislature has established the district court as the trier of fact in a de novo review of a KHRC order. K.S.A. 44-1011(b).
The Court of Appeals is reversed. The district court is affirmed. | [
17,
-6,
-20,
93,
8,
-29,
26,
30,
83,
-94,
103,
83,
-87,
-26,
29,
123,
-46,
31,
-47,
105,
-28,
-105,
83,
-95,
-48,
-9,
-39,
-35,
-71,
79,
100,
-34,
8,
80,
10,
-43,
-26,
-64,
79,
92,
-116,
39,
-104,
-24,
-3,
-128,
48,
106,
86,
79,
20,
15,
-13,
44,
25,
-61,
-52,
60,
127,
-19,
114,
-7,
-22,
7,
93,
22,
51,
32,
-105,
-121,
80,
63,
-48,
52,
-95,
-88,
81,
-74,
-126,
116,
15,
-83,
-116,
32,
98,
3,
-99,
-25,
96,
-112,
79,
-108,
-115,
-25,
-103,
8,
67,
5,
-10,
-100,
72,
22,
15,
-4,
-57,
21,
31,
44,
-118,
-113,
-8,
-79,
13,
-83,
-122,
-113,
-17,
-57,
48,
49,
-98,
-96,
93,
7,
54,
31,
-26,
-80
]
|
The opinion of the court was delivered by
Larson, J.:
This is a multiple issue appeal and cross-appeal raising questions of fraud, conspiracy, aiding and abetting, violations of the Kansas Consumer Protection Act (KCPA), release, both compensatory and punitive damages, remittitur, pro tanto credit for settlements, and attorney fees.
Highly summarized, the issues we consider arose when Richard York and his wife, Vesta, sued numerous defendants in connection with activities arising out of undisclosed and hidden real estate and construction commission obligations on their purchase of a resi dential lot in a subdivision in Wichita, Kansas. Several defendants obtained summary judgment prior to trial, while others entered into a settlement agreement with the Yorks.
The Yorks’ claims against the seller of the lot, InTrust Bank, N.A. (InTrust), proceeded to trial, and the jury awarded the Yorks actual damages of $113,411 and recommended punitive damages. InTrust moved for judgment notwithstanding the verdict, a new trial, or, in the alternative, a remittitur, plus credit on the judgment for amounts received by the Yorks in settlement.
After an evidentiary hearing, the trial court reduced the actual damages to $44,300, awarded attorney fees and costs of $46,383.28, and granted the Yorks punitive damages of $7,500, making a total award of $98,183.28. The court then entered a separate order crediting InTrust with the entire amount of a $65,000 settlement the Yorks received from other defendants, leaving InTrust responsible for a $33,183.28 judgment. The Yorks consented to the remittitur. InTrust did not and appealed, alleging error in various rulings of the trial court and insufficiency of the evidence supporting the verdict and damages. The Yorks then cross-appealed the remittitur order and the order crediting the amount received from the settlement agreements against the verdict.
The issues raised by the appeal and cross-appeal are as follows:
1. Did the trial court err in ruling InTrust was not released due to the covenant not to sue between the Yorks and the settling codefendants?
2. Did the trial court err in ruling InTrust was a “supplier” under the KCPA?
3. Was there substantial competent evidence that InTrust violated the KCPA?
4. Was there substantial competent evidence that InTrust conspired with or aided and abetted any other party in defrauding the Yorks?
5. Are the Yorks barred from cross-appealing the amount of damages due to their acceptance of the remittitur prior to InTrust filing á notice of appeal?
6. Was the amount of damages awarded to the Yorks appropriate?
A. Should the actual damages be limited to the amount of the build-job commission?
B. Was there substantial competent evidence to support a punitive damages award?
C. Was the amount of attorney fees awarded to the Yorks excessive?
7. If the Yorks’ cross-appeal may be heard, the following additional questions exist:
A. Did the trial court err in granting a remittitur?
B. Did the trial court err in granting InTrust a pro tanto credit for the full amount received from the settlements with the other defendants?
C. Is InTrust entitled to an additional pro tanto credit for amounts received from the Yorks’ settlement with the other defendants who had previously been granted summary judgment?
D. Should InTrust be precluded from receiving any credit for the setdement amounts paid to the Yorks?
E. Is InTrust entitled to a credit for the setdements with the other defendants against the amount of punitive damages assessed against it?
8. What amount, if any, should the Yorks be allowed for their attorney fees on appeal?
Factual statement
The complexity of the issues set forth above points to the necessity of a more detailed statement of the various relationships between the parties, as well as the transactions, which are central to this appeal.
InTrust, in the regular course of its banking business, takes real estate as collateral for loans. It is occasionally required to sell this real estate when it receives title as the result of defaulted loans. In the present instance, InTrust took a deed in lieu of foreclosure and thereby acquired land in a residential development, Lakeside Estates.
At the time InTrust acquired the Lakeside Estates property, it was being developed in two phases. Some homes had been constructed on Phase I, but the plat for Phase II had not been filed. InTrust officers Eastwood, Sayler, and Bunton determined the bank would recover the most money on its security by developing the property and selling individual lots over a 5- or 6-year period.
InTrust entered into negotiations with Jay Russell and his company, Lost Creek Estates, Inc., (collectively Russell) to develop Lakeside Estates. Russell was to be compensated by a development fee of 15% of the gross sales price for each Lakeside Estates lot sold. The parties entered into a written agreement in October 1992, which provided that no real estate commission would be paid by InTrust on the sale of lots. Russell had previously sent Sayler a memorandum recommending that the approved builders pay real estate commissions of 6% based upon the total sale price of the homes to be built on the lots. Eastwood testified he initially understood Russell would pay any real estate commissions out of his 15% development fee, but was informed by Russell that the commissions would be paid on the individual build jobs rather than by him.
Russell then entered into an agreement with Marge Delmar and her company, Marco Realty (collectively Delmar), giving Delmar the exclusive right to market the lots in Lakeside Estates. The agreement provided that no real estate commission would be paid by InTrust or Russell on the sale of any lot and that any commission due would be paid by the exclusive builders of Lakeside Estates on any homes they constructed on the property in the subdivisions.
Russell also granted four builders the exclusive right to build homes on the Phase I and Phase II Lakeside Estates lots. He entered into a builder’s agreement with each, requiring the builders to pay Delmar, as the exclusive marketing company, a 6% commission based upon the cost of a built home. These agreements contained a confidentiality clause prohibiting disclosure of the terms of the contract to third parties, with the exception of lenders. The builders also signed exclusive right-to-sell agreements with Delmar, granting Delmar a 6% commission on the total cost of any speculative homes they constructed when sold.
By April 1993, InTrust was selling Lakeside Estates lots and executing contracts with the purchasers. These contracts were on a preprinted form provided by Delmar, with paragraph 25 of the agreement to be separately signed by all parties, stating: “This office, as a real estate brokerage firm, solicits real property listings from the seller. Since the seller pays our commission upon a sale closing, by law, we have a fiduciaiy responsibility to that seller.”'
In addition, Paragraph 14. A. of the agreement provided:
“This contract and any Builder Agreement between the parties hereto contain the entire agreement between Seller and Buyer and may not be amended or modified except by written agreement signed by Seller and Buyer. All statements and representatives [sic] made by the parties concerning the Property are set forth in this Contract and such Builder Agreement. No statement or representation not set forth herein or therein shall be binding on or enforceable against Seller or Buyer.”
Eastwood was responsible for signing these contracts on behalf of InTrust. He testified to reading the first contract before signing. When Eastwood questioned Delmar about the statement regarding the payment of the real estate commission in the agency disclosure notice, he was informed that InTrust was paying a commission by paying the development fee to Russell.
With the foregoing background in existence, the Yorks began looking for a lot upon which to build a new home in 1993. They decided to purchase a lot in Lakeside Estates, met with Delmar, and agreed that Sharon West of Plaza del Sol Real Estate, Inc., (collectively West) would be involved as a cooperating realtor.
In August 1993, the Yorks and InTrust entered into a lot purchase contract for the sale of a lot for $30,500, with the agreement executed by the Yorks, Eastwood on behalf of InTrust, Delmar, and West. No builder’s agreement was entered into, nor were copies of the builder’s agreements between Russell and the exclusive builders provided to the Yorks. West presented the Yorks with a separate agency disclosure which stated her commission would come directly or indirectly from the seller.
Richard York testified that at the time of the purchase, he believed InTrust would be paying the real estate commission based on the selling price of the lot out of the proceeds of the sale. He understood that a realtor would be paid a commission on the basis of what he or she sold, be it a lot or a model or speculative home. He testified that had he known InTrust was not paying a commis sion on the sale of the property, he would have made further inquiry regarding the commission arrangement. He stated he would not have completed the contract had he known that the commission would be based on the cost of a custom home to be built on the property by York and his wife rather than on the lot price.
The Yorks’ purchase of the property was set to close on October 29,1993. The Yorks sold their home through West and moved into a rented duplex on September 29,1993. On August 31,1993, West informed the Yorks that Delmar had told her that neither she nor Delmar would receive a commission from InTrust, but rather that the builder would add the commission to the cost of the build job. The Yorks were surprised by this information and pointed out the agency disclosure clause in their purchase contract indicated that the seller, InTrust, was paying the commission. Richard York told West she was to be paid by InTrust, they would not pay a commission at a later time, and she needed to get this taken care of. York testified West indicated she agreed with him as to what the purchase contract said, and the matter was not mentioned again by West prior to closing.
Prior to closing on the lot, the Yorks met with the approved builders, then sought an architect to draw up blueprints for a custom home. The Yorks decided to deal directly with the builders rather than working through an agent and believed that neither West nor Delmar needed to be involved in the process, as the agents would not be providing any services. The Yorks then obtained a loan commitment, locking in an interest rate of 6% on a loan for $164,400, for ,a 15-year term, provided they closed on the transaction within 6 months. The Yorks paid a nonrefundable fee of $1,989 to obtain the commitment.
The Yorks inquired about extending the closing date on the purchase of the lot, but were advised by West that this could not be done. The closing statement did not reflect any deductions for a real estate commission. York testified this did not lead him to believe no commission was being paid by InTrust because he understood there were many methods in which the seller may pay a commission.
On November 1, 1993, the Yorks received a bid on the custom blueprints from builder Tony Zimbleman of $281,000, which included an itemized commission of $16,860. Four days later they received an unitemized bid from builder Mike George of $303,212. The Yorks attempted to discuss the commission with Zimbleman, but were simply told that was the way it worked. Richard York then obtained lower bids from suppliers and subcontractors so that they could proceed with Zimbleman supervising the construction for a flat fee.
On December 2,1993, Zimbleman gave the Yorks a copy of the exclusive listing between Russell and Delmar, and the next day he gave them a blank copy of the builder’s agreement he had signed with Russell. The Yorks sought advice from counsel, who wrote to Delmar on December 14, 1993, suggesting she had entered into a secret agreement in violation of the law. On December 16, 1993, Zimbleman wrote to the Yorks and withdrew as builder of their home. Zimbleman later told the Yorks he could build their home in a development other than Lakeside Estates, but would not build for them there at that time.
On December 28, 1993, the Yorks’ attorney offered to release InTrust from liability and relinquish any claim to the property if it would refund the purchase price of the lot and any closing costs. InTrust responded by contending the purchase contract did not impose any responsibility on the bank regarding future construction arrangements. InTrust continued to execute purchase contracts that were essentially unchanged from the contract entered into with the Yorks.
The Yorks sued InTrust, Russell, Delmar, West, and the Lakeside Homeowners Association and Architectural Control Committee in March 1994. Shortly afterwards, the Yorks offered to put the commission Delmar sought in escrow pending the result of the lawsuit so they could start building their home and mitigate their damages. Delmar never accepted this offer.
In July 1994, the Yorks discovered Lakeside Estates was no longer using exclusive builders. The Yorks received permission from Russell to use a builder of their choice with no commission due Delmar, whose company was no longer the marketing com- party for Lakeside Estates. The Yorks obtained another loan commitment from the same lender as before, which agreed to apply their prior fee of $1,989 towards the new loan. However, the new loan commitment was for a 30-year loan for 81/4%, which could adjust up to 8%% by the end of the commitment period, and the beginning interest rate was locked in for 7 years, after which it could increase by 2% per year up to a maximum rate of 14x/2%.
After discovery, summary judgment was granted to West, the Lakeside Homeowners Association, and the Architectural Control Committee, but denied to InTrust, Delmar, and Russell. The court granted the Yorks’ motion to amend their complaint to assert punitive damages. Shortly before trial, the Yorks settled with Delmar and Russell for $65,000, granting them a covenant not to sue.
The trial court submitted to the jury the Yorks’ four claims against InTrust for fraud, civil conspiracy, aiding and abetting, and violation of the KCPA. The juiy was also instructed to determine whether punitive damages should be allowed.
The jury found against InTrust on all claims except that of fraudulent inducement to purchase the lot and awarded damages of $96,111 for increased mortgage interest, $11,750 for increased construction costs and contractors’ fees, $4,200 for temporary housing, and $1,350 for lost mortgage interest income tax deductions, totalling $113,411. The jury also determined that punitive damages should be awarded.
InTrust moved for judgment notwithstanding the verdict (JNOV), a new trial, or a remittitur. The Yorks moved for assessment of punitive damages, attorney fees, and costs.
Evidence of InTrust’s financial condition and the amount of reasonable attorney fees was presented. The trial court denied InTrust’s motion for JNOV, but ordered the Yorks to either accept a remittitur of damages to $44,300 or undergo a new trial on the issue of damages. The Yorks accepted, and the court reduced the amount of damages for increased mortgage interest to $27,000 and added in the remaining damage amounts to reach the $44,300 figure for actual damages.
The court also awarded punitive damages of $7,500, attorney fees of $45,000, and costs of $1,383.28. The court then entered a separate order crediting InTrust the entire amount of the $65,000 settlement with Russell and Delmar and entered a judgment against InTrust for $33,183.28.
InTrust elected not to accept the remittitur it had requested and filed a timely appeal. The Yorks cross-appealed. The Yorks also appealed the trial court’s grant of summary judgment in favor of West, but later dismissed the appeal after a settlement was reached. Our jurisdiction is pursuant to K.S.A. 60-2102(a)(4) in a case transferred to us under K.S.A. 20-3018(c).
Was InTrust released by the settlements with Delmar and RussellP
InTrust raises a threshold issue that it is only vicariously liable as a conspirator or aider and abettor and that the Yorks released it from liability by settling with codefendants Russell and Delmar and executing a covenant not to sue. InTrust’s contention relies on the rule that the release of a party who wrongfully injures another operates to release all those derivatively liable for the conduct of the party actually released.
The effect of a release or covenant not to sue is a legal question. Sade v. Hemstrom, 205 Kan. 514, 522, 471 P.2d 340 (1970). We have unlimited review over questions of law. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997). However, insofar as factual matters pertain to InTrust’s role as either an active or passive tortfeasor, which has bearing on the legal question of the effect of the settlement, we must apply a mixed standard of review. Thus, we apply a substantial competent evidence test to the factual findings and then decide if those findings support the legal conclusions. See State Bd. of Nursing v. Ruebke, 259 Kan. 599, 611, 913 P.2d 142 (1996).
The law is well settled in Kansas that the execution of a covenant not to sue does not result in a release of claims against all other joint tortfeasors. Jacobsen v. Woerner, 149 Kan. 598, 601, 89 P.2d 24 (1939). InTrust does not dispute this rule or claim the document given by the Yorks to Delmar and Russell is a release and not a covenant not to sue.
InTrust’s contention that the Yorks’ settlement with Delmar and Russell had the effect of releasing it from liability is premised on the holding of Atkinson v. Wichita Clinic, P.A., 243 Kan. 705, 707, 763 P.2d 1085 (1988), that a release or covenant not to sue an agent also releases the principal. Atkinson involved a medical malpractice action against a doctor for negligence and his employer for imputed liability based on the doctrine of respondeat superior. We decided that a settlement with the doctor which included a hold harmless agreement insulating the doctor from any liability also satisfied any imputed or vicarious liability of the employer to the plaintiff. 243 Kan. at 714.
The Yorks do not disagree with the Atkinson rule, but simply contend it is not applicable in our case because InTrust actually participated in the wrong that harmed the Yorks. The Yorks point out the jury had to have found that Intrust acted independently and willfully in determining it violated the KCPA and in further finding that punitive damages were appropriate. Based on the instructions, the Yorks contend the jury found InTrust acted “with a designed purpose or intent ... to do wrong or to cause an injury to another.”
If the liability of InTrust is purely vicarious within the meaning of the cases cited in Atkinson (see Jacobson v. Parrill, 186 Kan. 467, 351 P.2d 194 [1960], and Wilkerson v. Lawrence, 193 Kan. 92, 391 P.2d 997 [1964]), the covenant not to sue would have the effect of discharging InTrust from liability notwithstanding the express clause stating the “Yorks expressly reserve the right to further prosecute the lawsuit against defendants InTrust Bank, M.B., Sharon West, and Plaza Del Sol Real Estate, Inc.” If, however, the Yorks may successfully hold InTrust independently responsible for its own actions and not merely for the conduct of other actors, the covenant not to sue has no effect on InTrust’s liability.
We do not appear to have any Kansas cases exactly on point, although the distinction between the arguments of the parties is partially shown by the result in Wilkerson, 193 Kan. at 96, where it was held that the release of one agent released the principal’s vicarious liability for that agent’s actions, though the principal may still have had vicarious liability for a different agent’s negligence.
InTrust relies on the Oklahoma case of Barsh v. Mullins, 338 P.2d 845 (Okla. 1959), to support its assertion that passive tortfea sors are released by a covenant not to sue active conspirators. Barsh, however, recognized a distinction not merely between active and passive conspirators, but also between an injury that is the object of a conspiracy and one that occurs incidentally while in the furtherance of the conspiracy. The court stated, albeit in dicta:
“It is not necessary for us to determine whether the liability of a non-acting conspirator would be primary or derivative in a case where the object of the conspiracy was to cause damage to the person injured. It may be that in such case the non-acting conspirators would be considered guilty of independent negligence as commanding or advising the commission of the tort which caused the injury, and to that extent would be hable as if they had committed the act with their own hands.” 338 P.2d at 850.
The situation in our case is factually different from Barsh. As will be discussed, the jury clearly found InTrust, through its misrepresentations, played an active and not a passive role in the transaction. InTrust cannot insulate itself from the ultimate effect of its misrepresentation by asserting it was merely a passive player. See Taylor v. Gilmartin, 686 F.2d 1346, 1361 (10th Cir. 1982), cert. denied 459 U.S. 1147 (1983).
In 3 Am. Jur. 2d, Agency § 280, p. 782, the authors note: “A principal may, of course, be liable to a third person for his own tortious conduct, independent of agency principles.” The footnote to this statement' provides: “See Restatement, Agency 2d § 212 (liability of principal for the consequences of another’s conduct which results from his directions where he intends the conduct or its consequences), . . . and Comments thereto stating that rules are not dependent upon the law of agency.”
These authorities suggest that although all participants in a conspiracy may be held vicariously liable for acts injuring others committed while in furtherance of a conspiracy, all participants should be considered directly liable for injuries to others which are the objects of the conspiracy, regardless of whether the participants were active or passive conspirators. This argument is supported by State ex rel. Mays v. Ridenhour, 248 Kan. 919, 926, 811 P.2d 1220 (1991), where passive defendants were held liable under K.SA. 17-1255 for knowingly joining in an unlawful venture and committing overt acts in furtherance of the conspiracy. This result is also supported by the principle that one who instructs another to perform a wrongful act should be no less liable than one who directly commits the act.
It is clear the type of vicarious liability mentioned under principles of conspiracy and aiding and abetting as described in Ridenhour is not the same as that described in the respondeat superior cases like Atkinson. The difference lies in the fact that in the former, the participants are treated as actual joint tortfeasors, while in the latter, the parties are merely described as jointly liable for the injury such that the principal maintains the right to recover from the servant or agent if forced to satisfy a judgment. Those who conspire to commit a tortious act or who aid and abet the commission of a tortious act do not appear to have this right. 18 Am. Jur. 2d, Contribution § 41, p. 49 provides:
“But the general rule is that there is no right of contribution in favor of any tortfeasor who has intentionally caused or contributed to the injury or wrongful death out of which liability has arisen. Thus, it has been said that as between conscious, willful, malicious, or intentional joint wrongdoers or tortfeasors who are in pari delicto, neither the law nor equity will enforce contribution.”
This analysis suggests it should not matter whether InTrust actively or passively participated in the conspiracy or aided and abetted others if injury to the Yorks or other purchasers was the object of the conspiracy or the aiding and abetting. In such a case, InTrust is liable for the wrongful acts leading to the Yorks’ injuries.
Here, the jury clearly found InTrust guilty of both engaging in a conspiracy and aiding and abetting others in order to defraud the Yorks. It is apparent that the object of the conspiracy and the aiding and abetting was to injure purchasers like the Yorks in order to obtain a financial benefit for the participants. We will find in this opinion that substantial competent evidence supports the jury’s findings, which requires us to hold that InTrust may not be released from liability merely because other defendants obtained a covenant not to sue. This is because InTrust is not merely being held vicariously liable for the tortious conduct of another through no fault of its own. Rather, InTrust itself engaged in tortious conduct by violating the KCPA and by aiding and abetting others and participating in a conspiracy whose object was to commit a wrongful injury upon the Yorks.
Even if InTrust’s argument were correct and the determination of this issue rested upon whether InTrust actively or passively participated in the wrongful act which injured the Yorks, we would then be required to decide whether the evidence proves InTrust was only a passive participant. In making this examination, we view the evidence in the light most favorable to the Yorks, the party who prevailed below. See Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 361-62, 837 P.2d 330 (1992).
InTrust asserts its argument that the evidence indicates it played no active role in causing the Yorks’ damages is bolstered by the fact the jury did not find that it fraudulently induced the Yorks to purchase the lot. InTrust concludes: “Clearly, the jury found that any fraud in connection with the sale of the lot was committed by the other defendants, not InTrust.”
These statements, however, do not properly reflect the verdict of the jury. In order to find InTrust guilty of a violation of the KCPA, the jury had to conclude that InTrust engaged in a willful misrepresentation of a material fact. In order to award punitive damages, the jury had to find by clear and convincing evidence that InTrust acted in a willful or fraudulent manner. Simply because the jury did not find InTrust fraudulently induced the Yorks to purchase their lot does not mean that InTrust engaged in no misrepresentations in connection with the sale of the lot. These findings are supported by substantial competent evidence and clearly indicate that InTrust actively participated in causing the Yorks’ injuries, rather than passively allowing others to injure them. InTrust was found to be an active tortfeasor by substantial competent evidence and was not released from liability by the covenant not to sue granted under the terms of the Yorks’ settlement with Delmar and Russell.
Was liability properly imposed on InTrust for violations of the KCPA?
While we will also find that liability was properly premised on other grounds, the jury’s verdict is separately sustainable because InTrust was a “supplier” under the KCPA and substantial competent evidence showed it committed deceptive acts and practices pursuant to K.S.A. 50-626(b)(2) and (3).
The trial court ruled that in this transaction, InTrust was a “supplier” within the meaning of the KCPA and subject to liability. This determination involves the interpretation of a statute, which is a question of law over which we have unlimited review. See In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). However, we apply the substantial competent evidence test to decide if the factual findings support the legal conclusions. See Ruebke, 259 Kan. at 611.
Was InTrust a “supplier” under the KCPAP
InTrust argues it is not a supplier under the KCPA because its ordinary business is banking, not selling real estate, and this was the first time InTrust had attempted to develop and sell lots in a subdivision. InTrust relies upon Moore v. Florida Bank of Commerce, 654 F. Supp. 38 (S.D. Ohio 1986), aff’d 833 F.2d 1013 (6th Cir. 1987) (holding a bank which repossessed two automobiles sold to charity was not engaged in continuous or regular activity and therefore not a “supplier” under Ohio’s consumer code).
A supplier under the KCPA is defined by K.S.A. 50-624(i) as “a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer?”
In the present case there was evidence that in the ordinary course of InTrust’s banking business, it seized collateral on loans it had made. In order to comply with banking regulations, InTrust is required to dispose of seized property. Thus, the selling of real property obtained through the taking of collateral is deemed to be in the ordinary course of a banking business.
Furthermore, InTrust’s argument that this was an isolated transaction might have had some validity had it simply sold the entire Lakeside Estates property in one transaction, rather than attempting to subdivide and develop the property and sell 57 individual lots or homes over a period of 5 or 6 years. Clearly, the sales of these properties were not isolated transactions, as was the case in Moore where only two cars were sold.
Although not precisely on point, a real estate seller was deemed to be a “supplier” and subject to the provisions of the KCPA in Hoffman v. Haug, 242 Kan. 867, 752 P.2d 124 (1988), and also in Heller v. Martin, 14 Kan. App. 2d 48, 782 P.2d 1241 (1989). In Hoffman, this court found no violation of the KCPA because there was no evidence of a deceptive act or practice. However, our opinion defined a “ ‘consumer ” and a “ ‘supplier ” and stated: “Hoffman [the buyer] fits the definition of a consumer under the Act, and Haug [a real estate agent] of a supplier.” 242 Kan. at 872-73.
Heller was a “wet basement” case, and the result is not critical to our analysis. However, the seller of the house (Martin) was deemed to be a supplier and the purchaser (Heller) was considered a consumer. In describing the transaction, Judge Rees stated:
“Was Martin a supplier as defined by K.S.A. 50-624(i)? We conclude that she was.
“Although not a real estate trader or dealer, that is, a person engaged in the buying and selling of real estate for her own account, as a licensed real estate salesperson Martin solicited consumers to enter into real estate sales transactions. She engaged in that activity in the ordinary course of her business. She met the KCPA definition of supplier.” 14 Kan. App. 2d at 51.
Martín was held to be a supplier notwithstanding the fact that the residence she was selling was her own. It was considered critical that the property was listed for sale, and the opinion stated “[t]hat an owner’s sale of his or her residence most often is an isolated sale also is immaterial here.” 14 Kan. App. 2d at 51.
The significant fact in the present case is that Intrust sold or intended to sell numerous lots over an extended period of time, which clearly makes InTrust a “supplier” as defined by the KCPA.
Does substantial competent evidence show InTrust violated the KCPA?
In considering InTrust’s claim that there was insufficient evidence to support the jury’s finding that it committed a deceptive act, we begin with our standard of review:
"When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. [Citation omitted.]” Cerrettt, 251 Kan. at 361-62.
The KCPA prohibits suppliers from engaging in any deceptive acts or practices in connection with a consumer transaction. See K.S.A. 50-626(a). Under K.S.A. 50-626(b)(2), a deceptive act is defined to include “the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact,” regardless of whether any consumer has in fact been misled. The court here properly instructed the jury regarding this claim and defined a material fact as “one to which a reasonable person would attach importance in determining his or her choice of action in the transaction involved.”
InTrust does not appear to recognize that the purchase contract erroneously stated InTrust would pay a real estate commission to Delmar based on the lot price when in fact it would not do so. InTrust further fails to acknowledge the ultimate commission was hidden in the construction price of the home to be built and represented many multiples of the 6% which the Yorks expected InTrust to pay on the sale of a lot. This clearly constitutes a misrepresentation, although all the Yorks were required to prove was that InTrust engaged in “the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact.” K.S.A. 50-626(b)(2).
Unable to successfully assert it made no misrepresentation, InTrust next argues this misrepresentation was not material. A material matter was described in Griffith v. Byers Construction Co., 212 Kan. 65, 73, 510 P.2d 198 (1973), as a matter “to which a reasonable man would attach importance in determining his choice of action in the transaction in question.” It is clear from the evidence that the Yorks attached great significance and importance to the cost of a home to be constructed on the lot they were purchasing. Having a $16,860 commission tacked onto the construction cost of a home is the equivalent of charging the Yorks a 55% commission oix the lot purchase and having it added to the lot’s cost.
InTrust claims that whether a purchaser would indirectly pay a commission on the cost of budding a home rather than on die cost of the lot was not material to the Yorks’ decision to purchase fixe lot from InTrust. Again, this contention directly conflicts with Richard York’s clear declaration that he would not have proceeded with the transaction had he known that the commission was not being paid by InTrust upon the sale of the lot, but that it would be based upon the cost of the build job and included in the cost of building their home. InTrust’s point not only has no merit, it highlights the devastating effect this hidden cost had on the Yorks.
InTrust next asserts that no reasonable person would attach significance to the misrepresentation because such a person would not have concluded that payment by InTrust of a commission upon the sale of the lot meant that the builder would not also owe a commission to the realtor. Richard York, however, testified that it was his belief that a realtor would be entitled to a commission based upon what the realtor sold. The Yorks did not believe a realtor played any part in the construction of a custom home. This is not an unreasonable assumption. Any reasonable person would expect to be informed when purchasing a lot if there were an additional requirement for paying an extra commission of 6% on the cost of building a several hundred thousand dollar home on the lot. This results in an exorbitant and unconscionable fee which the participants attempted to hide from the Yorks.
Next, InTrust argues there is no evidence it willfully violated the KCPA and presents the definition of a willful act given to the jury in conjunction with the instruction regarding punitive damages. There is no requirement, however, that InTrust willfully violate the KCPA in order to find a violation of the KCPA. Rather, the question under K.S.A. 50-626 is simply whether InTrust engaged in the willful use, in any oral or written representation, of a falsehood as to any material fact. The willful use of a misrepresentation is not the equivalent of willfully violating the KCPA, and the definition of willful act argued here is simply not applicable.
InTrust goes on to argue that the KCPA does not proscribe mere nondisclosure, but rather the intentional failure to state or concealment of a material fact. This argument also is not applicable to this case because the deceptive act alleged by the Yorks is a misrepresentation of a material fact, not mere concealment of a material fact. This determination also disposes of InTrust’s reliance upon Hoffman, 242 Kan. 867, for the proposition that plaintiffs may not recover under the KCPA for the failure to disclose information the plaintiff could have easily discovered. InTrust cites no authority that the same rule should be applied to an actual misrepresentation, nor does the evidence establish that the Yorks could have easily discovered the commission arrangements.
Testing the evidence in the manner in which we are required to do so on appeal, we hold there was substantial competent evidence for the jury to find, as it did, that Intrust violated the KCPA. These findings and rulings are sufficient to justify the award of damages under K.S.A. 50-634(b) and attorney fees pursuant to K.S.A. 50-634(e) to the Yorks. However, before we consider those issues, we return briefly to InTrust’s argument that insufficient evidence existed to justify the juiy’s verdict that it conspired with or aided and abetted any other party in defrauding the Yorks.
Was there substantial competent evidence InTrust conspired with or aided and abetted other parties to cause damage to the Yorks?
While the jury’s verdict was properly entered as to the KCPA violation, it can also be sustained based on its findings that InTrust conspired with or aided or abetted other parties to cause damage to the Yorks. On review, we are not to disturb the verdict if the evidence, with all reasonable inferences to be drawn therefrom and considered in the light most favorable to the Yorks, supports the verdict. See Cerretti, 251 Kan. at 361-62. We hold that it does.
InTrust begins by pointing to the incongruity that even though the jury found it had made no fraudulent representation to the Yorks, the jury went on to find InTrust had conspired with others to defraud them. This, however, is not what the jury found. First, the jury found that InTrust did not fraudulently induce the Yorks to purchase the lot, not that InTrust made no fraudulent repre sentations. Second, the fraud claim the Yorks alleged against InTrust required clear and convincing proof, unlike the other counts requiring proof by a preponderance of the evidence. Simply because the jury ruled in favor of InTrust upon the fraud count, which required a higher burden of proof, does not mean the evidence was insufficient that InTrust engaged in a conspiracy or aided and abetted others to defraud the Yorks. Further, in finding InTrust had violated the KCPA, the jury found InTrust had committed a deceptive act or practice by the willful use of any oral or written representation of exaggeration, falsehood, innuendo, or ambiguity as to a material fact. In finding that punitive damages should be awarded, the jury also found by clear and convincing evidence that InTrust had acted in a willful or fraudulent manner.
Conspiracy
As to the conspiracy claim, InTrust disputes most of the required elements. The five elements necessary for a conspiracy to exist are: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages proximately caused by those acts. Ridenhour, 248 Kan. at 927.
Two or more persons
First, InTrust asserts it could not conspire with Delmar and Russell because they were its agents, citing May v. Santa Fe Trail Transportation Co., 189 Kan. 419, 424, 370 P.2d 390 (1962). Although it is true that agents or employees acting only in their official capacities on behalf of a corporate defendant and whose acts are considered those of the corporation may not form a conspiracy with the corporation, such is not the case here.
Delmar and Russell are clearly separate entities with contractual relationships with each other and with InTrust. In pursuing the conspiracy at issue, they were not acting in any capacity as officials of InTrust so that their activities could be deemed acts of InTrust. Russell was an independent contractor who contracted to help with the development of Lakeside Estates. Russell then retained Delmar, who was a licensed realtor subject to the Real Estate Brokers’ and Salespersons’ License Act, K.S.A. 58-3034 et seq., to help sell the subdivided property.
Cases where only employees of a corporation are involved are not applicable here because InTrust conspired with third parties (outsiders), people acting with their own individual interests involved. There is no reason why these parties could not conspire with InTrust, or InTrust with them. This point has no merit.
Object to be accomplished
InTrust claims the Yorks attempted to establish that the object of the conspiracy was to conceal the commission to be paid on the build-job transaction. InTrust argues this object was not accomplished because the commission was revealed and InTrust would have had no reason to pursue such an object because it had no value to InTrust.
The Yorks respond by pointing out that the evidence established that the object of the conspiracy was to facilitate a sale of a lot at the best possible price while concealing the fact that the purchaser would be forced to pay a commission based not on the cost of the lot but on the cost of a home built on the property. Intrust officer Eastwood admitted that InTrust’s goal was to get the best price possible for a lot and that InTrust had no intention of paying any real estate commission beyond the 15% development fee it was paying Russell. Further, it may be implied that the parties attempted to conceal the commission arrangement by misrepresenting it on the purchase contract and by including a confidentiality clause in the builder’s agreements, regardless of the fact that one of the builders eventually breached this clause. Contrary to InTrust’s claim that it had no interest in the arrangement, the evidence indicates that Russell would have demanded a larger fee if he had been required to pay the real estate commission, which would have reduced InTrust’s return on the sale of the lots.
Meeting of minds
InTrust alleges there is no proof of a meeting of the minds to conceal the commission arrangement. InTrust then argues there is nothing to establish it acted knowingly to further the tortious pur pose of the other defendants. InTrust claims that it merely signed a purchase contract prepared by its agent that was technically inaccurate.
The Yorks properly respond that in proving this element of conspiracy, they are not required to prove an actual agreement. Rather, circumstantial evidence of the agreement is universally recognized as the proper means of proving a conspiracy. Nardyz v. Fulton Fire Ins. Co., 151 Kan. 907, 911, 101 P.2d 1045 (1940). Thus, a conspiracy may be proven by either showing the conspiracy itself or by showing the separate acts of the conspirators involving the same purpose or object.
There is sufficient evidence to establish InTrust knew of and had discussed or negotiated the commission arrangement with Russell. Furthermore, it was Delmar, specifically acting on InTrust’s behalf, who presented the lot purchase contract containing the misrepresentation regarding the commission arrangement. There is evidence InTrust was aware of this misrepresentation and discussed it with Delmar. Furthermore, InTrust took no steps to correct this misrepresentation or instruct its agent to do so, the builder’s agreements contained a confidentiality clause, and no one informed the Yorks of the commission to be paid on the build job. These facts constitute circumstantial evidence of the existence of a conspiracy to conceal the commission arrangement. Substantial evidence supports the jury’s finding that there was a meeting of the minds and that InTrust knowingly acted to further the conspiracy.
One or more unlawful overt acts
InTrust next argues there is insufficient evidence to prove the fourth element of the conspiracy claim, that an unlawful or overt act was committed by one or more of the conspirators. The Yorks alleged the overt act committed was fraud by silence in concealing the build-job commission. Instruction No. 11 told the jury five elements must be proven to establish fraud by silence: (1) other entities or persons had knowledge of material facts which the plaintiffs did not have or could not reasonably have discovered; (2) the other entities or persons failed to communicate the material facts, and (3) this was done intentionally; (4) the plaintiffs justifiably re lied upon the others to communicate the material facts; and (5) the pilaintiffs sustained damages as a result of the failure to communicate the material facts.
Regarding the unlawful act, InTrust claims fraud by silence must be proven by olear and convincing evidence, but provides no citation to support the argument that when fraud by silence is another element of a claim that merely requires proof by a preponderance of the evidence that it is more likely true than not, it still requires the higher burden of proof. This question is not well answered by the Yorks, but we find the evidence of fraud by silence was substantial and was of a clear and convincing quality, which is sufficient to support the jury’s finding here. See Newell v. Krause, 239 Kan. 550, 557, 722 P.2d 530 (1986).
Damages proximately caused
InTrust asserts there is no evidence that the commission on the build job was material to the Yorks’ decision to purchase lot. This is contrary to Richard York’s clear testimony that had he known he would have to pay a commission on a build job, he would have purchased elsewhere. The fact the Yorks purchased the lot prior to receiving bids on the cost of building their home does not mean that they were willing to pay any price for a home or that they were willing to pay a 6% commission on that cost.
Next, InTrust claims the Yorks could have discovered the arrangement because the purchase contract mentioned the builder’s agreement. This argument ignores the fact that the language of the purchase contract specifically refers to a builder’s agreement between the parties to the purchase contract. Russell and the exclusive builders, who were parties to the builder’s agreements at issue, were not parties to the purchase contract. Thus, the builder’s agreements between Russell and the builders which referred to the commission due Delmar was not incorporated into the purchase-contract. Furthermore, the builder’s agreements contained a confidentiality clause, and the jury was entitled to disbelieve Russell’s explanation that the clause was inadvertently, rather than deliberately, included in the builder’s agreements.
InTrust goes on to argue that there was no failure to disclose the commission arrangements because Zimbleman itemized the commission in his bid to build the Yorks’ home. This argument is clearly irrelevant, as it matters little that the Yorks inadvertently discovered the information after they had already purchased their lot. The point is that this information should have been disclosed prior to the purchase.
Finally, InTrust asserts that the Yorks did not justifiably rely on the alleged nondisclosure of the commission arrangements because they failed to heed the warning signals and ask for further information. InTrust points out that the Yorks believed a commission would be paid on speculative or model homes and that they assumed without asking that no commission would be paid on custom homes.
The evidence in this case, viewed in the light most favorable to the Yorks, indicates they believed a commission is normally only paid on what is sold, which explains the difference in their minds between a speculative or model home and a custom home. The evidence elicited bn cross-examination, that Richard York may have been aware at the time of the lot purchase that some areas added a build-job commission on custom homes, does not undermine the clear evidence that York was relying upon his rights as he believed them to be expressed in the lot purchase contract, which indicated InTrust would be paying the commission. The language of the purchase contract clearly explains and justifies the Yorks’ reliance upon their belief that they were obligated to pay no further commissions.
There was substantial competent evidence, to sustain the jury’s finding on the conspiracy count.
Aiding and abetting
In order to find InTrust liable for aiding and abetting others to defraud the Yorks, the jury was required to find the following elements: (1) The party whom the defendant aids must perform a wrongful act causing injury; (2) at the time the defendant provides assistance, he or she must be generally aware of his or her role in part of an overall tortious or illegal activity; and (3) the defendant must knowingly and substantially assist in the principal violation. Ridenhour, 248 Kan. at 936.
InTrust first makes the general argument that there was no evidence that any defendant committed fraud by silence or injured the Yorks by any wrongful act. This argument has been previously addressed and need not be repeated here.
Second, InTrust disputes whether it was aware of its role as part of a tortious activity, It asserts the only evidence presented of this element was that InTrust executed the purchase contract containing “a boilerplate Agency Disclosure Notice” indicating it was paying the commission. InTrust ignores, however, evidence that it was aware, through both a memorandum from and conversations with Russell, of the commission arrangement. There also was evidence that InTrust knew the purchase contract did not reflect the true commission arrangement and that it took no action to ensure that purchasers of the lots it sold were aware they would be forced to indirectly pay a commission, not on the price of the lot they were purchasing, but on the cost of building their home. Furthermore, there is evidence InTrust continued to fail to disclose this information to other purchasers after receiving the Yorks’ complaint that it was materially misrepresenting the facts regarding the property.
Third, InTrust claims it did not knowingly or substantially assist in the wrongful conduct. It asserts it encouraged no wrongful act and engaged in no conduct designed to prevent discovery of the truth. InTrust points out it was not a parties to the build-job transaction and that it was not aware of the contents of the builder’s agreements.
InTrust’s arguments regarding these elements also fail. There was evidence InTrust sanctioned a misrepresentation of a material fact pertaining to the sale of the lot and failed to inform purchasers of the true commission arrangement.. Further, despite the fact that InTrust was not a signing party of the builder’s agreement, the only authority Russell had to enter into such an agreement was due to his acting on InTrust’s behalf in developing the Lakeside Estates property and because the build-job transactions were a necessary part of InTrust’s plan of developing Lakeside Estates to realize the most profit from the sale of the property. InTrust will not be permitted to claim willful ignorance of a contract entered into by Russell on InTrust’s behalf. In addition, the jury was entitled to disbelieve that InTrust was not aware of these provisions.
We said in Ridenhour that “[a] qualitative difference exists between proving an agreement to participate in a tortious line of conduct and proving knowing action that substantially aids tortious conduct. In some cases, an agreement cannot reasonably be inferred from substantial assistance or encouragement.” 248 Kan. at 937. The jury in the present case was instructed regarding six factors to be used to determine whether InTrust knowingly provided substantial aid: (1) the nature of the act encouraged by InTrust; (2) the amount of InTrust’s assistance; (3) InTrust’s presence or absence at the time of the tortious act; (4) InTrust’s relation to the other parties; (5) InTrust’s state of mind; and (6) the duration of InTrust’s assistance.
In applying these factors to the facts of this case, we first consider the nature of the act encouraged. This act was to conceal the commission on the build-job transaction until after the purchasers of the lots would be obligated to pay it. Perhaps a different way of saying the same thing is to say it was a part of a deliberate scheme to inflate commissions and mislead purchasers. Failing to reveal material information InTrust possessed and allowing a known misrepresentation to be conveyed to purchasers are the essence of InTrust’s wrongful conduct.
Next, we must consider the amount of assistance. This is difficult to judge in this case because the essence of the wrongful act is a failure to take action to reveal the commission arrangement. Thus, doing nothing would be of great assistance to the principal actors in the tortious conduct. However, InTrust also participated in the concealment by permitting a misstatement it was aware of to be included in the purchase contract it signed. In light of the fact that only a small action on InTrust’s part would have revealed the material facts so that the Yorks would not have been injured, this factor should weigh heavily against InTrust.
The third factor, presence, is also problematic because the wrongful act here involves a course of conduct resulting in the concealment. All parties participating in the concealment, including InTrust through the inaccurate purchase contract it signed, are deemed to have been present at the act.
The fact that the principal actors in the tortious conduct were acting as InTrust’s contractual partners in developing InTrust’s property interest at Lakeside Estates when they devised the commission arrangement and proceeded to conceal it from purchasers is particularly harmful to InTrust’s position. These were not totally independent parties over which InTrust possessed no authority or as to which it had no reason to be aware of their activities.
Next, we found a rapacious state of mind to weigh heavily against the defendants in Ridenhour, 248 Kan. at 941. This motive is equally applicable here, as the commission arrangement arrived at prevented InTrust from paying a commission or from paying Russell a greater development fee and ensured that InTrust kept more proceeds from the sale of the lots. Further, the arrangement contributed towards more sales, as purchasers of lots believed a real estate commission would be limited to the cost of the lot (as it should have been).
Finally, the duration of the assistance here also does not weigh in InTrust’s favor. It persisted over an extended period of time, even after InTrust received complaints about its participation in the arrangement.
All of the factors weigh against InTrust, and some weigh heavily. They require our conclusion that InTrust knowingly and substantially assisted and participated in the maximizing of its return and in hiding an obligation to be imposed by parties in its contractual circle upon unsuspecting purchasers like the Yorks. There is clearly evidence to support the jury’s finding that InTrust aided and abetted other parties to cause damage to the Yorks.
We have approved three different reasons to sustain a judgment in the Yorks’ favor and against InTrust for consequential damages and attorney fees. Further, what we have said predicts our approval of the jury’s decision that punitive damages should be awarded.
However, before we reach all of the damage questions, we must decide the threshold issue of whether to consider only those ar guments raised by InTrust’s appeal or also those raised by the Yorks’ cross-appeal. The precise question is:
Are the Yorks precluded from cross-appealing because they accepted the trial court’s ordered remittitur prior to InTrust’s filing a notice of appeal?
This issue presents us with a question of law over which our review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1992).
InTrust seeks enforcement of the rule that a party who has accepted a remittitur has acquiesced in the judgment and thereby forfeits the right to appeal that judgment. See Iseman v. Kansas Gas & Electric Co., 222 Kan. 644, 652, 567 P.2d 856 (1977).
The Yorks question Iseman s authority based on our later decision of Garden City Country Club v. Commercial Turf Irrig., Inc., 230 Kan. 272, 634 P.2d 1067 (1981). They also point to the modem and more equitable trend that allows a plaintiff to cross-appeal a remittitur once a defendant declines to accept the benefit granted by the trial court and appeals as if a remittitur had never been requested or granted.
A remittitur is defined as the “procedural process by which an excessive verdict of the jury is reduced.” Black’s Law Dictionaiy 1295 (6th ed. 1990). See Tuley v. City of Kansas City, 17 Kan. App. 2d 661, 666-69, 843 P.2d 267, rev. denied 252 Kan. 1094 (1993).
In commenting on the practice of granting a remittitur when the trial court deems the damage award excessive, 22 Am. Jur. 2d, Damages § 1021 states: “In most jurisdictions the trial court, as a condition of entering judgment upon the verdict . . . may require a remittitur of the excess from the judgment entered or the verdict returned and enter . . . judgment for the amount so reduced.”
With a remittitur, we have, in effect, a post-trial settlement negotiation where the court utilizes its discretion to reduce what it believes to be an excessive judgment to one which it believes both parties should accept. This is exactly what happened here. InTrust was not satisfied with the result achieved and has appealed, although InTrust now wishes to prevent the Yorks from cross-ap pealing, due to the fact they accepted the trial court’s remittitur ruling.
In reviewing our recent Kansas authority, we begin with Hawkins v. Wilson, 174 Kan. 602, Syl., 257 P.2d 1110 (1953), where an appeal by a defendant was dismissed because “he invited and gave implied consent to the trial court’s action in reducing the verdict.” The defendant had requested a new trial or a reduction of the verdict. The request was granted and accepted by the plaintiff. This was deemed to be in effect invited error or acquiescence in the judgment, and the defendant’s right to appeal was cut off. If this were still the Kansas rule, InTrust’s appeal would have to be dismissed.
An identical decision 11 years later, Anstaett v. Christesen, 192 Kan. 572, 389 P.2d 773 (1964), was decided almost summarily, following Hawkins.
Next in our chronology is Iseman, 222 Kan. 644. This is the primary authority relied on by InTrust, as Iseman precluded a cross-appeal by a plaintiff from a trial court’s order granting a remittitur or, in the alternative, a new trial on the grounds of acquiescence and the authority of Hawkins. Such is understandable given the state of our law at the time, but it is difficult to fathom why the KG&E appeal was even considered, as it was in the identical position which had been deemed fatal to attempted appeals by the defendants in Hawkins and Anstaett.
In any event, we began to step away from our earlier decisions in this area in Garden City Country Club, 230 Kan. 272, Syl. ¶ 1, where we said:
“Where a verdict is reduced and judgment entered for the residue on motion of the party against whom the verdict was entered, said party has neither consented to nor acquiesced in the new judgment, and is not barred from appeal. The holdings of Anstaett v. Christesen, 192 Kan. 572, 389 P.2d 773 (1964), and Hawkins v. Wilson, 174 Kan. 602, 257 P.2d 1110 (1953), so far as they are contrary to or inconsistent with this opinion, are expressly rejected and overruled.”
In Garden City, a verdict rendered for the defendant on its counterclaim was reduced when plaintiff requested a remittitur, which was granted. When the plaintiff appealed, the defendant utilized Anstaett and Hawkins to argue the granting of the remit titur barred the appeal. In analyzing the propriety of rejecting the appeal, Justice McFarland wrote:
“Under the Anstaett-Hawkins rule a party requesting a remittitur throws himself on the mercy of the trial court and if he receives a remittitur in any amount he is deemed to have consented to the judgment and to be legally satisfied with the entire proceedings and precluded from appeal. We also note the Anstaett-Hawkins rule appears to be inconsistent with the current legal philosophy of simplifying appeals and making them readily available to litigants. A cursory review of legal encyclopedias and the law of other jurisdictions reveals no comparable rule, nor has any been cited by the parties. The Anstaett-Hawkins rule appears to be a maverick in our Kansas law and should be summarily cast out.” 230 Kan. at 275.
The Yorks argue the authority of Iseman is diminished by the overturning of Anstaett-Hawkins decisions by Garden City. InTrust points out that Iseman was not mentioned in Garden City and that Iseman was reaffirmed in Folks v. Kansas Power & Light Co., 243 Kan. 57, 77, 755 P.2d 1319 (1988), where we said: “[A] party that accepts a remittitur is precluded from appealing, the reduction of the award.”
InTrust cites older cases from a minority of jurisdictions, including Florida, Mississippi, Nevada, Ohio, Pennsylvania, and Virginia, which prohibit a plaintiff who accepted a remittitur from cross-appealing even though the defendant has appealed.
The Yorks argue that the more modem and more equitable rulé allows a cross-appeal by a party who has previously accepted a remittitur once its adversary abandons the benefits received by the remittitur and files a notice of appeal of the judgment entered. Approximately 20 jurisdictions have expressly adopted this rule. The most persuasive of the arguments in its favor is set forth in Plesko v. Milwaukee, 19 Wis. 2d 210, 221, 120 N.W.2d 133 (1963):
“The objective underlying the recommended procedure for granting an option to accept judgment for a reduced amount of damages in lieu of having a new trial where the damages awarded by the jury are determined by the trial court to be excessive, is to avoid the delay and expense of an appeal or a new trial. In most situations, it is .likely that the party will accept judgment for such reduced damages rather than undergo the expense, delay, and uncertainty of result of an appeal or new trial. Nevertheless, if a party found hable to pay damages appeals the judgment resulting from the other party’s accepting such reduced damages, this objective has been negatived. When plaintiff is forced to undergo an appeal by the action of an opposing party, after plaintiff has accepted judgment for such reduced damages, it seems unfair to prevent his having a review of the trial court’s determination leading to the reduction in damages, especially if plaintiff has accepted same only to avoid the delay and expense attending an appeal. Furthermore, the new rule herein announced may to some extent discourage appeals by the party held hable because of the possibility that the party who has accepted judgment for the reduced damages may prevail on his motion for review and have the jury’s verdict reinstated.”
Although similar views are set forth in numerous other opinions, the rationale for the rule is most succinctly stated in Burns v. Mc-Graw-Hill Broadcasting Co., Inc., 659 P.2d 1351, 1355 (Colo. 1983):
“In our view, cross-appeals of remittiturs should be permitted when the party for whom the remittitur was granted appeals on other grounds. The reasons supporting the traditional rule are not present when the plaintiff is forced into the position of responding to an appeal by the defendant. Judicial economy is best achieved by reviewing the remittitur judgment at the same time other issues in the case are resolved. A new trial may be completely avoided if the trial court’s order is found erroneous and the original verdict is reinstated. Moreover, such a rule encourages the defendant to pursue only meritorious appeals because of the chance that the appellate court may reinstate the original verdict while ruling against the appellant on all other issues.”
Although some of the states following this new trend do have statutory underpinnings for their rule, most of the states surveyed treat the plaintiff’s acceptance of the trial court’s reduction of what the court believed to be an excess judgment as no'longer having any binding effect once the remittitur “offer” is rejected by the defendant’s appeal. For a compilation of the states so holding, see Annot., 16 A.L.R.3d 1327 and the supplement thereto.
It is much more consistent with the path we began in Garden City to adopt the majority rule than to leave the playing field unbalanced in the post-verdict arena. We hold that a party accepting a remittitur, while not permitted to appeal from that decision, is free to cross-appeal the remittitur once its adversary abandons the benefits received from a granted remittitur and appeals. To the extent this ruling requires the overruling of contrary statements in Iseman and Folks, we do so.
Should the damages be limited to the amount of the build-job commission?
InTrust first argues that the Yorks’ damages should be limited to $16,860, the amount of the commission itemized on Zimbleman’s bid to build their home, because the Yorks failed to mitigate their damages by immediately proceeding with construction. The trial court appeared to agree in spirit with InTrust’s assertion, but refused to limit the damages as a matter of law because InTrust presented no persuasive authority for the proposition. The court held the issue of mitigation was for the jury’s factual determination and when presented with InTrust’s argument, refused to adopt it.
InTrust now argues the trial court should have, as a matter of law, utilized the rule that “a party is entitled to recover only his actual damages less those he might have reasonably prevented” to limit the Yorks’ recovery to $16,860, relying on Lines v. City of Topeka, 223 Kan. 772, 781, 577 P.2d 42 (1978).
The Yorks cite First Nat’l Bank v. Milford, 239 Kan. 151, 158-59, 718 P.2d 1291 (1986), and 22 Am. Jur. 2d, Damages § 500 in arguing that InTrust was in as good a position as they were to mitigate the damages and failed to do so. 22 Am. Jur. 2d, Damages § 498, p. 582 states: “The doctrine of avoidable consequences is simply one of good faith and fair dealing. The injured person need not make extraordinary efforts or do what is unreasonable or impracticable in his efforts to minimize damages.”
The jury in this case was properly instructed that the amount of damages should not include “loss which plaintiffs could have prevented by reasonable care and diligence exercised by them after the alleged wrongful conduct occurred.” The jury, in awarding the damage amounts, implicitly found against InTrust’s argument that the Yorks could have prevented their damages by simply paying the commission. Substantial evidence supports the juiy’s conclusion that the Yorks acted reasonably. We will not find as a matter of law that the damages are limited to the amount of the commission.
We also agree with the jury’s determination. There is evidence the Yorks acted in good faith and engaged in fair dealing. Twice they made offers to the defendants which would have substantially mitigated their damages. First, the Yorks offered to release their claims against InTrust if it simply rescinded the purchase contract. Thus, in this instance, InTrust was in the best position to avoid incurring substantial damages, but it refused to do so. Next, the Yorks offered to pláce the disputed amount of the commission in escrow pending the results of the litigation so that they could proceed with building their home and avoid further damages. Again, this offer was never accepted. The evidence supports a finding that the Yorks acted reasonably to attempt to avoid their damages, but were prevented from doing so by the acts of the defendants.
Nor does reason require the Yorks to pay the disputed amount of the commission in order to avoid their damages. Once paid, this money may not have been recoverable even if the Yorks did prevail on their claim. $16,860 is a substantial sum of money and is hardly a trifling amount in comparison with the amount of damages eventually sustained by the Yorks.
We hold the Yorks were within their rights to withhold payment under the facts of this case. There is substantial evidence to show they acted reasonably. The damages are not, as a matter of law, limited to the amount of the build-job commission.
Was there substantial competent evidence to justify a punitive damage award?
InTrust first claims the affidavit in support of the Yorks’ claim for punitive damages was insufficient. When the motion to amend under K.S.A. 60-3703 was argued, this objection was not made, nor was it made at the time the trial court instructed the jury on the punitive damages claim. As such, this argument is on an issue not presented to the trial court which may not be raised for the first time on appeal. See Ripley v. Tolbert, 260 Kan. 491, Syl. ¶ 6, 921 P.2d 1210 (1996). Furthermore, even if considered, the issue would be without merit because the underlying information to substantiate the Yorks’ punitive damage request had been presented to the trial court. Thus, we move on to consider whether the evidence supports the juiy’s finding.
Our standard of review of this issue is the same as any other issue where the evidence is alleged to be insufficient, except that we must find that the substantial evidence supporting the punitive damages finding is clear and convincing. See Cerretti, 251 Kan. at 369-70.
The jury was instructed in substantially the same manner suggested by PIK Civ. 3d 171.44, that the burden is on the plaintiff to prove by clear and convincing evidence that InTrust acted in a willful or fraudulent manner. Instruction No. 14 specifically stated:
“In no case should you award punitive damages against defendant for the fraudulent conduct of any other party unless you find that defendant InTrust Bank, through a person expressly empowered to do so by defendant, authorized the other party to engage in the fraudulent conduct.”
InTrust asserts there was no evidence it had a purpose to inflict harm on anyone simply by executing the purchase contracts or that InTrust authorized any party to defraud or mislead the Yorks. InTrust, however, mischaracterizes its actions and ignores the inferences that may permissibly be drawn from the evidence.
There is evidence that InTrust was aware of the commission arrangement and that such an arrangement would be of benefit to InTrust. There was evidence that InTrust entered into an agreement to conceal this arrangement from lot purchasers and that InTrust assisted in misrepresenting material facts in order to do so. Such a purpose is a wrongful act designed to injure purchasers in order to further InTrust’s financial interests.
There exists substantial competent evidence of a clear and convincing nature sufficient to support the jury’s decision to award punitive damages.
Did the trial court abuse its discretion in the award of attorney fees to the Yorks P
“The reasonable value of attorney fees rests within the sound discretion of the trial court, and its determination will not be disturbed in the absence of an abuse of discretion.” City of Wichita v. B G Products, Inc., 252 Kan. 367, Syl. ¶ 3, 845 P.2d 649 (1993). If the trial court’s award of fees is supported by substantial competent evidence, there is no abuse of discretion.
The attorney fees which the trial court allowed in the present case were clearly authorized once InTrust was determined to be a “supplier” and the jury found it had violated the KCPA. This brings into issue the specific provisions of K.S.A. 50-634(e), which states:
“[T]he court may award to the prevailing party reasonable attorney fees, including those on appeal, limited to the work reasonably performed if:
“(1) . . . a supplier has committed an act or practice that violates this act and the prevailing party is the consumer; and
“(2) an action under this section has been terminated by a judgment, or settled.”
Thus, statutory attorney fees constitute a remedy under the KCPA which is in addition to and separate from the allowance of damages under K.S.A. 50-634(b). The trial court allowed the sum of $45,000 plus $1,383.28 in expenses. This is the amount InTrust claims to be unreasonable and excessive, principally because it claims only a minimal part of the Yorks’ attorneys’ time was spent addressing the KCPA issue.
The Yorks’ expert witness on attorney fees testified that the KCPA claim involved a core set of facts shared with the other claims and that he had calculated the amount of attorney fees for work on the KCPA claim in two independent ways. First, he estimated the amount of time he would have expected to have expended to prosecute the KCPA claim. Next, he reviewed the time entry logs to calculate how much time the attorneys for the Yorks spent prosecuting the KCPA claim. The expert calculated a greater number of hours utilizing the former method than the latter. The court’s award falls within the range calculated utilizing the second method.
There is substantial evidence to support the trial court’s award of attorney fees. It was clearly necessary for all of the underlying facts of the transaction to be fully developed in order to prosecute the KCPA claim. Those services may have also resulted in findings of other tortious conduct sufficient to justify a judgment, but the KCPA claim is inextricably intertwined with the single transaction which is the subject of this litigation.
The trial court did not abuse its discretion in the amount of attorney fees and expenses it awarded under the KCPA.
Yorks’ Cross-appeal
Did the trial court err in granting a remittitur?
Our existing law in Kansas as to the granting of a remittitur was well summarized by Judge (now Justice) Davis in Tuley v. City of Kansas City, 17 Kan. App. 2d 661, 666-69, 843 P.2d 267 (1992), rev. denied 252 Kan. 1094 (1993). We need not harmonize the decisions discussed in Tuley except to note our disapproval of the Yorks’ argument that our standard of review is that of whether there was substantial competent evidence to support the jury’s verdict. The case the Yorks cite for the argument that the trial court was not entitled to substitute its judgment for that of the jury, Mettee v. Urban Renewal Agency, 219 Kan. 165, 169, 547 P.2d 356 (1976), was a condemnation action where the verdict was clearly within the evidence that was properly admitted and in which we refused to allow the trial court to adopt a value in the middle of the expressed opinions when the jury had selected a value nearer to the highest opinion.
Our standard of review over whether the trial court erred in granting a remittitur is one of abuse of discretion.
Although InTrust makes a complicated, but plausible, argument in support of the reduction, InTrust primarily continues its previously stated position that increased interest expense should never have been an element of damages in the first place. This is a contention the trial court did not embrace, nor do we on appeal.
The Yorks soundly argue, however, that it was erroneous for the trial court to compute a lump-sum amount of damages in the form of excess interest could be applied at the beginning of the loan to reduce the amount of increased interest expense when payments had already been made for 14 months at the time the damages reduction was computed. By the time of this opinion, an entirely different amount will be required to compensate the Yorks for the additional interest they will have been forced to pay because of Intrust’s actions.
We hold it was not an abuse of discretion for the trial court to order a remittitur or, in the alternative, a new trial on the issue of interest damages, but the lump-sum amount was inaccurately computed as being capable of being applied at the time of the commencement of the loan to reduce interest expense.
We approve generally the methodology of the trial court as set forth in its journal entry of judgment dated December 11, 1995, of comparing a 30-year, 8.25% variable rate mortgage loan of $203,150 to a $203,500 loan at 6% for 15 years. The trial court, in determining the amount of the remittitur to be ordered, should compute the amount which, when applied to the indebtedness, would require the Yorks to pay the same amount of interest as they would have paid under the terms of the original 15-year loan. If the parties do not agree with the amount established by the trial court as we have directed, it should order a new trial limited to the single issue of the amount of interest damages.
This entire analysis approves of the balance of the $17,300 damages awarded by the jury. That amount was properly computed and. assessed. In addition, it was not an issue on appeal and need not be subject to further proceedings except to be included in the judgment awarded to the Yorks prior to granting InTrust any credits.
Should InTrust receive credit for the settlement amounts paid to the Yorks?
The Yorks raise several arguments addressing the propriety of the credit granted to InTrust, including: (1) Should InTrust be precluded from receiving credit for the settlement amounts paid to the Yorks? (2) Did the trial court err in granting InTrust a pro tanto credit for the full amount of the Russell and Delmar settlements? (3) Is InTrust entitled to an additional pro tanto credit for the amounts received by the Yorks’ settlement with West? (4) Is InTrust entitled to a credit for the setdements with other defendants against the amount of punitive damages assessed against it? Although raised separately by the Yorks, these issues are all in effect the same and all involve common issues of law. We therefore consider them together.
We begin this discussion by pointing out this is not a case involving the comparative negligence (fault) provision of K.S.A. 60-258a. Nowhere in the pleadings is negligence alleged. The case was not tried in a manner that comparative fault could or should have been determined. As such, we do not attempt to apply any of our rules relating to K.S.A. 60-258a, which were summarized in Glenn v. Fleming, 240 Kan. 724, 732 P.2d 750 (1987). K.S.A. 60-258a did not change the common-law. rule of joint and several liability for defendants in intentional tort actions. Sieben v. Sieben, 231 Kan. 372, 378, 646 P.2d 1036 (1982).
The questions raised by the granting of a pro tanto credit in this case for the $65,000 pretrial settlement and the unknown amount of the post-trial settlement with West involve compensatory damages, punitive damages, and statutorily allowed attorney fees, making these questions of law over which our review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Kansas has not varied from a rule that limits a plaintiff to only one recovery for a wrong. This rule has been applied throughout the years in situations where partial payments have been made by multiple tortfeasors. A pro tanto credit has been granted to prevent a plaintiff from receiving a double recovery. By definition, the word pro tanto means “[f]or so much; for as much as may be; as far as it goes. Partial payment made on a.claim.” Black’s Law Dictionary 1222 (6th ed. 1990).
Although the case of Meixell v. Kirkpartick, 29 Kan. 679 (1881), involved judgments in separate trials against two different tortfeasor defendants, the basic tenor of pro tanto operation of payment by one of the tortfeasors was established when Justice Brewer said: “Of course one full payment by either debtor discharges the entire debt, but a compromise with one operates only as satisfaction pro tanto of the claim against the other.” 29 Kan. at 684.
Jacobsen v. Woerner, 149 Kan. 598, 89 P.2d 24 (1939), was earlier cited herein for the rule that a covenant not to sue one joint tortfeasor does not release other joint tortfeasors. In response to the pro tanto credit issue, the Jacobsen opinion also stated:
“Did the court err in not reducing the judgment by the amount paid the plaintiff by the Cardinal Stage Lines Company under the covenant not to sue? We think it did.
“In Abbott v. City of Senath, (Mo.) 243 S. W. 641, the court said:
‘It is a just and well-established doctrine that there shall be but one satisfaction accorded for the same wrong. If one be injured by a tortious act, he is entitled to compensation for the injuries suffered, and, if several persons are guilty in common of the tort, the injured one has his right of action for damages against each and all of the joint tort-feasors, and may at'his election sue them individually or together. But if he receive full satisfaction from one of them, his right of action against the other is thereby extinguished. (Dulaney v. Buffum, 173 Mo. 1, 73 S.W. 125; Butler v Ashworth, 110 Cal. 614, 618, 43 Pac. 4, 386.)
‘ “In such a case it is not necessary that it should appear that the party making the settlement was in fact liable. It will be deemed sufficient if there is an appearance of liability; that is, something in the nature of a claim on the one hand, and a possible liability under the rules of law on the other.” (Cleveland, etc., R. R. Co. v. Hilligoss, 171 Ind. 417, 425, 86 N.E. 485, 488, 131 Am. St. Rep. 258.)’
“When a right of action is once satisfied it ceases to exist. If part satisfaction has already been obtained, further recovery can only be had of a sum sufficient to accomplish satisfaction. It is not necessary that the party making payment in partial satisfaction was in fact liable. Anything received on account of the injury inures to the benefit of all and operates as a payment pro tanto. The plaintiff is entitled to only one satisfaction from whatever source it may come.” 149 Kan. at 603.
In Cullen v. Atchison, T. & S. F. Rly Co., 211 Kan. 368, 377, 507 P.2d 353 (1973), the principal issues revolved around a settlement where a covenant not to sue was given. Pertaining to the issue herein, we said: . .
“A covenant not to sue one joint tortfeasor does not release other joint tortfeasors; however, anything received by way of covenant not to sue operates as a payment pro tanto upon any judgment obtained against the others. (Jacobsen v. Woerner, [149 Kan. 598, 89 P.2d 24 (1939)].) Accordingly, the trial court erred in denying appellant’s alternative motion for pro tanto credit.”
See Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 348, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971); Prosser & Keeton, The Law of Torts § 49 (5th ed. 1984); Restatement (Second) of Torts § 885(3) (1977).
What we have said thus far answers negatively the contention of the Yorks that InTrust should be precluded from receiving any credit for settlement amounts paid to the Yorks. We decline the Yorks’ argument that InTrust has not carried its burden to be entitled to the credits granted, for we adhere to the rule that the Yorks are only entitled to receive that which will make the Yorks whole.
In order for a windfall to be avoided, it is also necessary for an additional pro tanto credit to be awarded for the amounts received by the Yorks from their settlement with West. We are unaware as to the amount of this settlement, as it was not disclosed in the record, but it is to be established by the trial court on remand and added to the $65,000 credit previously identified as the amount necessary to reduce the judgment to be granted against InTrust.
As we have ruled that a pro tanto credit must be granted, it becomes necessary to decide what items of damages the credit should be applied toward.
The Yorks’ fallback.position from denying that, any credit should be granted is that no credit should be granted against the punitive damages that were awarded, citing Smith v. Printup, 254 Kan. 315, 356, 866 P.2d 985 (1993). The Yorks also argue that because Delmar might have been found to have violated K.S.A. 58-3062(a)(4), (22), and (34) of the Real Estate Brokers’ and Salespersons’ License Act, we should apportion an imaginary amount of the $65,000 settlement to represent punitive damages and not allow any credit as to that amount. We are singularly unimpressed with a request for this court on appeal to make any such allocation.
InTrust cites no Kansas case as to the allowance of a pro tanto credit against the punitive damages award but cites Richards v. Michelin Tire Corp., 786 F. Supp. 964 (S.D. Ala. 1992), vacated on other grounds 21 F.3d 1048 (11th Cir. 1994), cert. denied 513 U.S. 1111 (1995), for allowing a credit against punitive damages. InTrust points to the wording of the covenant not to sue, which stated that it included but was not limited to “all claims made against [the settling codefendants] in the Lawsuit.” InTrust argues such language encompasses any claim for punitive damages based on the same alleged wrongs complained of against InTrust, making it appropriate for the credit to be applied to the entire judgment, including the punitive damages award.
The question as to whether a pro tanto credit should be granted against the amount of punitive damages awarded is governed by our decision in Printup, where we said:
“The imposition of joint and several liability for punitive damages is contrary to the purpose for which punitive damages are awarded. Punitive damages are awarded to punish the wrongdoer. Each wrongdoer is hable to pay the punitive damages assessed against him or her. The amount of the award is to be calculated with the individual defendant’s financial status and conduct in mind. K.S.A. 1992 Supp. 60-3701(b), (e) and (f). Joint and several liability undermines these considerations and therefore is unavailable. In contrast, joint and several liability for compensatory damages, under appropriate circumstances, is consistent with their purpose, which is to compensate the tort victim.” 254 Kan. at 356.
It would be totally inappropriate to the purposes for which punitive damages are awarded to allow any portion of the $65,000 settlement payment made by Russell and Delmar to inure to the benefit of InTrust insofar as the jury found and the trial court awarded punitive damages. A defendant is not entitled to apply a pro tanto credit to any amount awarded as punitive damages or to apply a pro tanto credit of any amount previously recovered which was specifically allocated as punitive damages.
Although we agree with the Yorks’ argument that the settlement payments made by Russell and Delmar should not relieve InTrust of any portion of the punitive damages awarded against it, we decline to accept the Yorks’ invitation to make an allocation of the $65,000 setdement to represent any amount of punitive damages which might have been allowed against either Russell or Delmar. To do so would be contrary' to the agreement, which expressly stated it was “not to be construed as an admission of liability” on the part of Delmar or Russell.
The $65,000 setdement may be applied against the remainder of the judgment, but not against, any portion of the punitive damages awarded by the court. The $7,500 in punitive damages is awarded to the Yorks as a separate judgment, unreduced by any amount of the settlements.
We have by the foregoing answered all of the questions raised by the Yorks’ cross-appeal. This leaves only the issue of attorney fees and expenses on appeal for our final consideration.
What amount, if any, should the Yorks be allowed for their attorney fees on appeal?
The Yorks have properly filed a motion for the award of attorney fees, and costs on appeal, contending they may be granted in this court’s discretion pursuant to K.S.A. 50-634(e). The amount claimed is $26,833.81, plus expenses in the sum of $1,207.33.
InTrust filed an objection, contending that fees should not be allowed, as such allowance is purely discretionary, that fees should be limited only to the KCPA issues; and that expenses should not be granted, citing DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, 947 P.2d 1039 (1997).
The Yorks’ response asserts that the time their attorneys have claimed for fees relates to the KCPA issue, which arises out of an inseparable transaction; thus, DeSpiegelaere is distinguishable because there the claimed fees were not segregated between KCPA and non-KCPA claims which arose out of separate acts. The Yorks also correct their claim for expenses by properly attributing printing charges to costs and reducing the claimed amount to $789.30.
We have considered all of the parties’ arguments and find that the allowance of reasonable attorney fees necessarily includes expenses, notwithstanding that K.S.A. 50-634(e) does not expressly state that “expenses” are included. We held in Sheila A. v. White-man, 259 Kan. 549, 566, 913 P.2d 181 (1996), that expenses are a part of reasonable attorney fees, and we also so hold here.
In addition, we determine, as did the trial court, that this is a case where attorney fees should be allowed. We grant the Yorks’ motion and allow attorney fees to the Yorks against InTrust in the amount of $22,500 and expenses of $789.30 for services provided on appeal. These amounts are to be included in the trial court’s judgment to be rendered upon remand. The allowance of additional amounts of attorney fees, if any, upon remand shall be determined by the trial court.
Although we believe the trial court and the parties should be able to compute the judgment to be entered from what we have said, we set forth the following summary to show the judgment which should be entered in favor of the Yorks against InTrust:
Punitive damages $ 7,500.00
Not reduced by any amounts of the settlements Increased mortgage interest costs *
Increased construction costs $ 8,000.00
Expense of temporary housing $ 4,200.00
Increased contractors’ fees $ 3,750.00
Lost mortgage interest income tax deductions $ 1,350.00
Attorneys fees for trial $45,000.00
Expenses for trial $ 1,328.28
Attorney fees on appeal $22,500.00
Expenses on appeal $ 789.30
Attorney fees and expenses on remand *
Court costs *
Less the Delmar/Russell settlement —$65,000.00
Less the West settlement — *
Total judgment to be entered $ -
(* = To be determined by the trial court on remand)
The issues raised by the appeal are affirmed. The issues raised by the cross-appeal are affirmed in part and reversed in part. The matter is remanded to the trial court for further proceedings in accordance with the instructions set forth herein. | [
-48,
120,
-4,
-84,
12,
98,
58,
-8,
41,
-127,
38,
83,
-23,
74,
20,
43,
118,
93,
-60,
99,
84,
-77,
15,
-56,
-42,
-77,
113,
-59,
-80,
94,
-27,
-42,
76,
96,
-126,
85,
38,
-54,
102,
16,
-82,
4,
8,
68,
-13,
64,
-12,
43,
20,
11,
113,
-81,
-13,
44,
17,
-57,
105,
42,
59,
-71,
-110,
-47,
-85,
71,
90,
22,
2,
36,
-8,
71,
-8,
54,
-112,
57,
41,
-56,
122,
-90,
-122,
-12,
75,
-103,
77,
-90,
99,
48,
65,
-89,
-4,
-120,
46,
91,
31,
-89,
-109,
72,
35,
37,
-74,
-100,
116,
2,
39,
-4,
-6,
13,
-117,
-19,
-121,
-53,
-42,
-109,
31,
116,
-103,
19,
-17,
-128,
32,
96,
-49,
-32,
93,
-41,
26,
23,
-50,
-73
]
|
The opinion of the court was delivered by
Allegrucci, J.:
This is a legal malpractice case brought by Bryan Key against William F. Ebert and his law firm, Hein, Ebert, and Weir, Chtd., (Hein, Ebert). The underlying action arose from Key’s arrest in connection with a domestic dispute. In the present case, Key alleged that he lost his cause of action for the unlawful arrest as a result of Ebert’s negligence and breach of contract in failing to avoid the bar of the statute of limitations. On the motion of Ebert and Hein, Ebert, the district court entered summary judgment in their favor on the ground that Key was not damaged by any failure of Ebert and Hein, Ebert because his arrest had not been unlawful. Key appealed. The case was transferred to this court from the Court of Appeals.
This action was initiated by a petition with two counts, alleging that Key had a viable cause of action for damages for false imprisonment against police, jailers, and the City of Parsons (City) but lost it due to the negligence of Ebert and Hein, Ebert and their breaching an agreement to timely file the false imprisonment claim on Key’s behalf. Key alleged that he “would have recovered a collectible judgment in his favor had he not been prevented from bringing suit because of the bar of the statute of limitations.”
The district court granted Ebert and Hein, Ebert’s motion for summary judgment in a memorandum decision and order of December 1995. The following factual determinations were included in the order under the heading, “Uncontroverted Facts”:
“I. Bryan D. Key, Plaintiff, and Roberta Kirkland lived together in October, 1991, with their minor son, David Key.
“2. On July 15, 1991 Roberta Kirkland obtained a temporary order of protection under the Protection from Abuse Act, K.S.A. 60-3101.
“3. Plaintiff was personally served with said temporary order of protection.
“4. Upon being served with the protection order Plaintiff immediately moved in with his mother in Fredonia, Kansas.
“5. Plaintiff had the order of protection dissolved, and moved back in with Roberta Kirkland.
“6. Plaintiff drove to the Parsons police station with Roberta Kirkland and then-son on October 3, 1991 to seek the help of the police in resolving a domestic
“7. Prior to leaving the police station, Ms. Kirkland informed an officer that she had a protective order and requested that Plaintiff be arrested.
“8. Plaintiff’s deposition states he told the officers that the protective order was dissolved and that if they would follow him home he would show them the order dissolving the protective order.
“9. Plaintiff was arrested and incarcerated until the next day, October 4,1991 when his mother posted bail.
“10. October 4,1991, Ms. Kirkland swore out a Complaint wherein she stated that Plaintiff had violated the restraining order and committed criminal trespass.
“11. A court date was set for Plaintiff to appear on October 17, 1991. At that time the Labette County attorney dismissed the charges against Plaintiff without prejudice.
“12. [Biyan] Key contacted William Ebert, Defendant, in February 1992 and informed him his rights had been violated.
“13. Plaintiff and Defendant met and discussed the case. Thereafter an engagement letter was signed. Then Defendant began making inquiries on Plaintiff s behalf concerning potential claims against the City of Parsons. Next, offers and counteroffers were exchanged between Defendant and counsel for the City of Parsons.
“14. Defendant elected not to file a false imprisonment action (with a one year statute of limitations) in state court, and instead, in October, 1992, and again in January, 1993, informed Plaintiff that the action would be brought in federal court, and that a two year statute of limitations applied.
“15. Plaintiff’s expert witness, Professor James W. Jeans, has expressed the opinion that, ‘The defendants were negligent in failing to file suit or withdraw from representation before the [false imprisonment] statute of limitations had run.’
“16. Defendant’s expert, Arthur E. Palmer, has expressed the opinion that Defendant did not act below the standard of care for lawyers in the community practicing in the civil rights area when he determined not to pursue a false imprisonment claim in the District Corut of Labette County, Kansas and elected to bring a claim in Federal Court under 42 U.S.C. § 1983.
“17. In early summer of 1993, Plaintiff requested the case file from Defendant.
“18. On September 29, 1993 Plaintiff’s new counsel filed suit on Plaintiff’s behalf against the [C]ity of Parsons in state court.
“19. That action was dismissed. In an opinion filed June 27, 1994, the court stated that the correct cause of action in state court was one for false arrest/ imprisonment. The one year statute of limitations had run on that action. Further a 42 U.S.C. § 1983 cause of action could not be pursued in state court, with its attendant two-year statute of limitations, because the state remedy was adequate. (A § 1983 claim could have been brought in federal court.) However, the court held that a viable cause of action still existed because negligent hiring and retention of officers and jailers was alleged. A two year statute of limitations is applicable to a negligent hiring or retention action.
“20. In a later opinion dated November 14,1994 the court dismissed the negligent hiring and retention claim because, ‘pursuant to K.S.A. 12-105b(d) the court is without jurisdiction to hear a petition alleging a negligent hiring and supervision claim against the city that was filed before December 16, 1993, and any such petition filed after January 31,1994, would be time barred.’
“21. Plaintiff never appealed the dismissal of the petition.
“[22], This case was filed September 26,1994.”
The district court concluded that Key did not have a viable cause of action for false imprisonment in the underlying action. The determinant for that decision was the district court’s conclusion that the police had probable cause to arrest Key. Probable cause, according to the district court, was supplied by Kirkland’s telling the police that she had a protective order. If the police had probable cause to arrest Key, the district court reasoned, there was no unlawful arrest, which is an essential element of a false imprisonment claim. In this regard, the district court concluded that “there was sufficient probable cause for the arrest of [Key] on October 3, 1991, and that the element of unlawful arrest necessary for a False Imprisonment claim is lacking. This court further finds that without a viable False Imprisonment claim, Plaintiff cannot show damages in the present legal malpractice claim.”
In that memorandum decision and order of December 1995, the district court further concluded that, even if probable cause was lacking so that the arrest was unlawful, Key still had no case against Ebert and Hein, Ebert. The district court reasoned that Key’s false imprisonment claim could have been prosecuted as a tort claim in state court or as a constitutional tort under the civil rights statute, 42 U.S.C. § 1983 (1994), in federal court. Ebert and Hein, Ebert had not filed a state court action within the 1-year state limitations period. At the time their representation of Key ended, however, a federal action, which has a 2-year limitations period, could still have been timely filed.
Upon consideration of Key’s “Motion and Memorandum for a New Trial and, Alternatively to Alter or Amend the Judgment,” the district court issued a memorandum decision and order in December 1996 in which it backed away from the alternative rationale of the December 1995 ruling. The district court wrote that under Parrott v. Taylor, 451 U.S. 527, 543-44, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), where a state tort claims procedure would remedy the alleged wrong, the plaintiff cannot state a claim for relief under the federal civil rights statute. The district court, however, reiterated the other basis for its original decision — that Key could not show that he was unlawfully arrested.
As a prehminary matter, the defendants question whether we have jurisdiction to hear this appeal. Defendants argue we do not because Key s notice of appeal does not comply with K.S.A. 60-2103(b). Key filed his notice of appeal pro se. It states in full verbatim:
“TO BILL EBERT, DEFENDANT and BRIAN G. Boos His attorney of record
“you and each of you are hereby notified that the plaintiff does hereby appeal to the court of Appeals from the order made this 19th day of DECEMBER 1996.
‘Wherein the court did grant the defendant Memorandom Decision order. And from each and every order entered contary to plaintiff.”
The district court’s memorandum decision and order, which was dated December 19, 1996, and file-stamped on December 20, 1996, is the ruling on Key’s motion for a new trial or to amend the judgment.
In their appellees’ brief, Ebert and Hein, Ebert argue that the notice of appeal fails to identify the district court’s order of December 1995, which granted summary judgment to the defendants. Ebert and Hein, Ebert rely on Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988), for the “fundamental proposition of Kansas appellate procedure that an appellate court only obtains jurisdiction over the rulings identified in the notice of appeal.” They represent that this court limited the Anderson issues to those contained in a memorandum decision from April 1987, which had been identified in the notice of appeal, and refused to consider issues related to an order granting summary judgment in December 1986, “because appeal of that judgment had not been designated in the notice of appeal.”
Key’s response is that in appealing the district court’s December 1996 ruling on his motion for new trial or alteration of the judgment, he necessarily appealed the December 1995 order granting summary judgment. He relies on State v. Walker, 260 Kan. 803, 806-07, 926 P.2d 218 (1996).
In its consideration of discrepancies between a notice of appeal and issues briefed, this court has rejected entreaties to make the requirements of the notice of appeal technical or burdensome. See, e.g., Hess v. St. Francis Regional Med. Center, 254 Kan. 715, 869 P.2d 598 (1994). Its approach has been to use a broad or “liberal construction to secure the just, speedy, and inexpensive determination of every action or proceeding” required by the code of civil procedure. 254 Kan. at 720.
In the present case, a liberal construction of the notice of appeal-seems particularly appropriate in that it was not drafted by counsel. The district court’s December 1995 memorandum decision and order included a statement of uncontroverted facts and conclusions of law, granted the defendants’ motion for summary judgment, assessed costs to the plaintiff, and stated: “The foregoing Memorandum Decision shah serve as the Court’s entry of judgment. No further journal entry being required.” It is both dated and file-stamped December 20, 1995. On December 28, 1995, Plaintiff’s “Motion and Memorandum for a New Trial and, Alternatively, to Alter or Amend the Judgment” was faxed to the district court. It amounts to a motion to reconsider all or nearly all legally significant aspects of the summary judgment. A year passed before the district court filed another memorandum decision and order. It is dated December 19, 1996, and file-stamped December 20, 1996. In it, the district court retracted the alternative ground for entering summary judgment in favor of Ebert and Hein, Ebert — that a federal civil rights action still was available to Key when he severed his attorney-client relationship with Ebert. The district court reaffirmed its decision to enter summary judgment for the defendants on the ground that the police had probable cause to arrest Key.
When Key filed his pro se notice of appeal, he identified the district court’s December 1996 memorandum decision and order by date. He also referred to the district court’s order “[w]herein the court did grant the defendant Memorandum Decision order.” It was, of course, the December 1995 order in which the district court granted defendants’ motion for summary judgment. The De cember 1996 order pertains to the plaintiff’s motion. Thus, using a liberal approach, this court could construe the language of the notice of appeal to include references to both the December 1995 and December 1996 orders. Moreover, although Key did not identify the December 1995 order by date, he included catch-all language in the notice of appeal — “And from each and every order entered [contrary] to plaintiff” — that obviously embraces the entiy of summary judgment.
In Hess, the final justification offered by the court for entertaining the briefed issues that were not clearly and expressly included in the notice of appeal was that “[t]he appellee does not claim that it was surprised or placed at a disadvantage by the issues appellant briefed.” 254 Kan. at 720. In the present case, Ebert and Hein, Ebert assert that they “have been surprised and placed at a disadvantage by being confronted for the first time on appeal with issues not raised by plaintiff in opposition to the summary judgment motion below.” This complaint relates to another issue — that of matters raised for the first time on appeal — rather than to the scope of the notice which is required to be given to the other party upon an appeal. Moreover, their complaint is hardly credible. The December 1996 order, which is identified by date in the notice of appeal, and the December 1995 order, which is not, center on the same two issues — whether Key had a federal civil rights action and whether there was probable cause for his arrest. Those same two issues, in particular the latter, dominate this appeal. Thus, we find that the notice of appeal was sufficient to include the issues briefed by Key.
We turn to the merits of Key’s appeal. Key ardently argues that the trial court erred in granting summary judgment in favor of the defendants when their supporting memorandum contained factual contentions based on-his unfiled deposition. Supreme Court Rule 141 (1997 Kan. Ct. R. Annot. 169) requires the moving party to file a memorandum setting forth uncontroverted contentions of fact with references to supporting documents, including depositions, “contained in the court file and otherwise included in the record.” Examination of the defendants’ supporting memorandum shows that many of their “Statements of Uncontroverted Fact” refer to the deposition of Bryan Key. It is asserted by Key that his deposition was never filed with the district court, and an examination of the appearance docket does not show otherwise.
A glance at Key’s memorandum in opposition to the motion for summary judgment, however, shows that he, too, referred to his deposition for factual contentions and that he admitted a great many of defendants’ contentions. Thus, it appears that his complaint on appeal is strictly technical and, moreover, that he waived his right to complain now by failing to do so at a time when the complaint might have been meaningful. Key defends against the notion of waiver by submitting an affidavit of Key s trial counsel to the effect that he was unaware that defendants had not complied with Rule 141 and, if he had been aware, he “never would have filed the memorandum in opposition to defendants’ Motion for Summary Judgment but would have objected to that motion” on that ground. We need not decide the question of waiver.
A thorough examination of the parties’ factual contentions discloses that the district court’s findings are not based on controverted facts drawn from the unfiled deposition. Only 4 of the district court’s 24 numbered paragraphs of “Uncontroverted Facts” were not fashioned directly on the defendants’ factual contentions which were admitted by Key. They are Paragraphs 8, 14, 19, and 20.
Paragraph 8 is of no concern on this issue for two reasons — (1) it was adopted by the district court at Key’s suggestion rather than as one of the defendants’ factual contentions, and (2) it is a recitation of Key’s testimony rather than a determination of fact. Defendants’ numbered paragraph 11 stated that Roberta Kirkland told police that she had a protective order and wanted Key arrested. Key admitted defendants’ numbered paragraph 11 and added that he told police that if they would follow him home he would show them there was no restraining order. Adopting defendants’ numbered paragraph 11, which Key admitted, the district court stated in Paragraph 7 that Kirkland told police she had a protective order and requested that Key be arrested. In Paragraph 8, the district court stated: “Plaintiff’s deposition states he told the officers that the protective order was dissolved and that if they would follow him home he would show them the order dissolving the protective order.”
Paragraphs 19 and 20 are statements of the district court’s rulings in Key’s underlying action against Kirkland, the police, and the City. They are of no concern on this issue because they are not based on Key’s unfiled deposition.
Paragraph 14 is a bit more complicated. It states: “Defendant elected not to file a false imprisonment action (with a one year statute of limitations) in state court, and instead, in October, 1992, and again in January, 1993, informed Plaintiff that the action would be brought in federal court, and that a two year statute of limitations applied.” Defendants’ factual contentions stated:
“29. ... In October 1992 [Bryan] Key again met with Mr. Ebert and according to Mr. Key'. . . [H]e started telling me we were going to take this out of the state courts and put it into federal court, and he says, “We’ll have two years.” ’. . .
“30. [Bryan] Key and Mr. Ebert met again in January 1993. [Bryan] Key says that Mr. Ebert advised him at that time “Well, I told you we were going to take this out of the state courts and we’ll put this into the federal courts,’ and he says, ‘You will have a two-year statute of limitations.’ ”
Key’s responses to these contentions were as follows:
“29. Admitted. The purported quotation is incorrectly set forth. . . .
“30. Admitted. Additionally, when Mr. Key first met with Mr. Ebert he informed Mr. Ebert that two attorneys had told him that he had two years to file a lawsuit, to which Mr. Ebert replied ‘Not for what we’re going for.’ ”
It appears that the last two-thirds of the district court’s Paragraph 14, that is, from “in October, 1992” to the end, is based on factual contentions admitted by Key. The first part of Paragraph 14, however, cannot be accounted for by looking at the parties’ proposed findings of fact. It states: “Defendant elected not to file a false imprisonment action (with a one year statute of limitations) in state court.” This part of Paragraph 14 may be objectionable, but not because it is drawn from a contention based on the unfiled deposition. It is an undisputed fact that Ebert did not file a false imprisonment action on Key’s behalf in state court. Whether that failure ought to be characterized as an election is questionable, but the trial court judge’s decision to do so cannot be imputed to reliance on the unfiled deposition.
We conclude that none of the district court’s findings is based on controverted facts drawn from the unified deposition. Thus, the deposition’s not being made a part of the court file or the record on appeal would not appear to be material to the outcome. Key would have this court reverse the entry of summary judgment on the ground that the trial court considered defendants’ motion for summary judgment despite their having failed to comply with Rule 141, irrespective of harm. We find the failure to be hannless error. See Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992).
We next determine if summary judgment was appropriate. In its memorandum decision and order of December 1995, the district court set out the following statement about Key’s cause of action and the basis for it:
“This case involves a legal malpractice claim against Defendants, in winch Plaintiff alleges that Defendants negligently allowed the statute of limitations to expire on a False Imprisonment claim against the City of Parsons. Any possible False Imprisonment claim would have arisen out of an arrest made on October 3,1991, when Plaintiff and Roberta Kirkland went to the Police station to seek assistance for a domestice [sic] dispute. Plaintiff was arrested when Roberta Kirkland told the police she had a restraining order against Plaintiff, which he was violating. Unbeknownst to the police, the restraining order had been dissolved.”
The district court’s opinion continued:
“There is a dispute as to whether the police checked the police records to verify the restraining order, or whether they merely accepted the word of Roberta Kirkland as the truth. However, in viewing the facts most favorable to Plaintiff, the Court will assume the police merely accepted the words of Roberta Kirkland as the truth when arresting Plaintiff after the couple arrived at the police station in a domestic dispute.” (Emphasis added.)
The district court then concluded as a matter of law that Kirkland’s word furnished probable cause for the arrest.
In State v. Mayberry, 248 Kan. 369, 807 P.2d 86 (1991), this court defined “probable cause” as
“the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984). See State v. Dunn, 233 Kan. at 414-15; State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972), red’d in part on other grounds 225 Kan. 38, 587 P.2d 861 (1978). Probable cause has been described as ‘ “[b]its and pieces of information . . . fitted together until a picture is formed which leads a reasonably prudent person to believe a crime has been . . . committed and that evidence of the crime may be found on a particular person or in a place or means of conveyance.” ’ State v. Marks, 231 Kan. 645, 647, 647 P.2d 1292 (1982) (quoting State v. Morgan, 222 Kan. 149, 151, 563 P.2d 1056 [1977]). See State v. Williams, 229 Kan. 290, 291, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981).” 248 Kan. at 377-78.
The district court did not discuss what the outcome would have been if the police had checked their records to verify the restraining order. Nor did the district court entertain the possibility that the police relied on both a check of their records and the word of Kirkland.
In considering a motion for summary judgment, a district court “is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995). This is what the district court stated it was doing in the present case, but examination of the materials that were before the district court reveals a somewhat different picture.
Among the arguments made by Ebert and Hein, Ebert for summary judgment was that Key could not have prevailed on the underlying false imprisonment claim. Defendants’ “Statements of Uncontroverted Fact” includes only the following pertinent paragraph:
“11. As the couple was preparing to leave the police station, Roberta Kirkland shouted out ‘I’ve got a protective order signed by Judge Sell on Mr. Key. ... I want him arrested.’ Thereupon Officer Gofourth, who by that time had been joined by Officer William Abemathie, arrested Mr. Key at Ms. Kirkland’s insistence.”
With regard to the law, defendants stated: “[Wjhere probable cause for plaintiff’s arrest exists he has no actionable claim for false imprisonment since the making of an arrest based on probable cause constitutes a discretionary function immune from liability pursuant to the Kansas Tort Claims Act, K.S.A. 75-610[l] et seq. [Citations omitted.]” Defendants’ argument on this issue was in tertwined with assertions of fact, which included allusions to a protective order document:
“Officer Gofourth arrested plaintiff at the insistence of Roberta Kirkland, plaintiff’s estranged spouse, based on a facially valid Trotection From Abuse Act order pursuant to which Ms. Kirkland demanded that plaintiff be arrested. Further, the fact that the couple had presented at the police station only minutes before seeking mediation of a domestic dispute clearly gave Officer Gofourth good reason to conclude that an incident violative of a court order had occurred or was about to. This constituted probable cause for plaintiff’s arrest. . . . Based on the probable cause supplied by the facially valid protection order, Ms. Kirkland’s sworn Complaint, and the fact that plaintiff and Ms. Kirkland were then involved in a domestic dispute, Officer Gofourth properly exercised his discretion in determining to arrest plaintiff.” (Emphasis added.)
It should be noted that Kirkland’s “sworn Complaint” was not prepared until the day after Key’s arrest nor did the court find the arresting officer checked for or relied upon a “facially valid protection order.”
Key made the following response to Defendants’ Paragraph 11:
“11. Admitted. Mr. Key stated to officers Goforth [sic] and Abernathy [sic] while in his truck with Roberta Kirkland and their child preparatory to leaving tire police station and after Roberta Kirkland had stated to said officers that she had a restraining order and wanted Mr. Key arrested, ‘Hay [sic], there ain’t no restraining order. Give me a minute. Follow me down to my house. I’ll show you. There is nothing.’ Officer Goforth responded by saying ‘The only place you’re going is jail.’ Officer Abernathy said ‘Hay. [sic] You can’t do that just on her word.’ to which Officer Goforth replied Well, I’m just going to do it anyway.’ Officer Goforth then grabbed Mr. Key from behind, pulled Mr. Key’s arms up around his neck, dragged him from his truck and slammed him up against the truck. Mr. Key then stated ‘Hay [sic], there ain’t no need for this. I’m not resisting you. All I want you to do is follow me down to the house so I can show you the order.’ ”
Defendants’ reply pointed out that Key’s memorandum contained no discussion of their third ground for summary judgment — that police had probable cause to arrest Key. They also promised to provide the court with evidence of an officer’s examining the protective order and relying on it in arresting Key:
“Here, it is undisputed that at the time plaintiff and Roberta Kirkland presented at the City of Parsons’ Police Station on the evening of October 3,1991, die couple were engaged in a domestic dispute. That fact, combined with the existence of a facially valid protection from abuse act order, clearly constitutes reasonably trust worthy information on which the arresting officers were entitled to rely in effecting plaintiff’s arrest and the officers have so testified.” (Emphasis added.)
Footnote 1 stated:
"The depositions of the arresting officers were recently concluded though the transcripts of same are as yet unavailable. Undersigned counsel has requested the court reporter expedite these deposition transcripts and undersigned counsel will immediately provide to the court the relevant portions of the arresting officer’s testimony confirming that the facially valid protection from abuse act order, was actually] examined in the police department’s dispatcher’s office by Officer Go-fourth, prior to effecting plaintiff’s arrest, was a reasonably trustworthy source of information upon which he relied in deciding to make the arrest.” (Emphasis added.)
Defendants’ reply was filed on November 22, 1995. It does not appear from examination of entries on the appearance docket between November 22 and December 20, 1995, when the district court’s memorandum decision granting summary judgment in favor of defendants was filed, that the officers’ deposition testimony was supplied to the court during that time.
Thus, it appears that the district court’s statement that “[t]here is a dispute as to whether the police checked the police records to verify tíre restraining order, or whether they merely accepted the word of Roberta Kirkland as the truth,” was not exactly accurate. Key did not dispute the contention that police officers checked the document in their files. Neither Key nor defendants suggested that the police necessarily relied on one or the other, but not on both, in making the arrest. The district court simply seems to have rendered its ruling before defendants furnished the deposition testimony which would have supported their assertion about the officers’ checking police records. In the absence of the officers’ testimony, the district court limited its consideration to the officers’ reliance on Kirkland’s word.
It may also be noted that there is in the record on appeal an “Order of Dismissal” in the Kirkland v. Key action. It states that on July 29, 1991, both parties appeared and agreed that the action should be dismissed. “IT IS THEREFORE ORDERED that plaintiff’s action be and it is hereby dismissed without prejudice.” The order is filed-stamped July 29, 1991. It should be noted that K.S.A. 60-3108 provides that “[a] copy of any order under this act shall be issued to . . . the police department of the city where the plaintiff resides.” There is no finding whether a copy of the temporary order or the order of dismissal was in the police records.
Key s argument assumes that the officers found a copy of the order in their records. In the district court, Ebert and Hein, Ebert, making the same assumption, argued that the temporary order was valid on its face and that it was one of a combination of factors that provided probable cause to arrest Key. Key argues on appeal that the district court reached the wrong decision because it failed to consider that the document consulted by the police was invalid on its face. Ebert and Hein, Ebert also seem to be arguing that Kirkland’s word alone provided probable cause for the arrest. Their position with regard to the protective order does not take into account the district court’s not considering it. They seem to assume for the purpose of their argument that the. July temporary order remained enforceable in October, and they seem to assume that the police had read the order.
The effect of what police officers knew from looking at the order should have had on their view of Kirkland’s credibility would seem to be a critical question. It was Ebert and Hein, Ebert, after all, who asserted in the district court that the police took the order into account in deciding to arrest Key. An order valid on its face, as assumed by Ebert and Hein, Ebert, would substantiate Kirkland’s word. An order questionably valid or patently invalid on its face, as argued by Key, would raise doubts about her word.
The officers failed to question Kirkland as to why she was with Key at the police station. The officers could have attempted to verify that the parties had dissolved the temporary protective order and that they were living together. In fact, one of the uncontroverted facts found by the trial court was that the protective order was dissolved and the two were living together.
In addition, Kirkland’s statement that she had a protective order, in and of itself, did not establish probable cause to arrest Key. There needed to be a showing that Key’s conduct constituted a criminal trespass, assault, or battery under K.S.A. 1991 Supp. 60- 3107(g), the form of the statute in effect at the time. The trial court made no finding that Key had violated the protective order.
Key correctly contends that he was being arrested for a misdemeanor and that a warrantless arrest for a misdemeanor requires more than probable cause. The district court, however, measured the police conduct strictly on a probable cause gauge. The district court found that “there was sufficient probable cause for the arrest of Plaintiff on October 3, 1991, and[, therefore,] that the element of unlawful arrest necessary for a False Imprisonment claim is lacking.”
Key makes a convincing case, not resisted by Ebert and Hein, Ebert, that the only offenses he might have been arrested for were misdemeanors. At that time K.S.A. 60-3107(g), the relevant provision of the Protection from Abuse Act, provided as follows:
“(g) If a person enters or remains on premises or property violating an order issued pursuant to subsection (a)(2), such violation shall constitute criminal trespass as provided in subsection (c) of K.S.A. 21-3721, and amendments thereto. If a person abuses, molests or interferes with the privacy or rights of another violating an order issued pursuant to subsection (a)(1), such violation may constitute assault as provided in K.S.A. 21-3408, and amendments thereto, or battery as provided in K.S.A. 21-3412, and amendments thereto.”
Criminal trespass is a misdemeanor. K.S.A. 21-3721(c). Assault is a misdemeanor. K.S.A. 21-3408. Battery is a misdemeanor. K.S.A. 21-3412. The formal complaint filed against Key the day following his arrest charged him with committing criminal trespass, a misdemeanor.
The parties agree that a warrantless arrest on a misdemeanor charge is governed by K.S.A. 22-2401. K.S.A. 1997 Supp. 22-2401 provides in pertinent part:
“A law enforcement officer may arrest a person under any of the following circumstances:
“(c) The officer has probable cause to believe that the person is committing or has committed:
(2) a misdemeanor, and the law enforcement officer has probable cause to believe that:
(A) The person will not be apprehended or evidence of the crime will be irretrievably lost unless the person is immediately arrested;
(B) the person may cause injury to self or others or damage to property unless immediately arrested; or
(C) the person has intentionally inflicted bodily harm to another person.”
Because there is no warrant involved in the present case, subsections (a) and (b) may be eliminated from consideration. Subsection (d) would be relevant only if the district court had determined as a factual matter that the officers saw Key committing a crime. The district court’s only findings of fact about Key’s conduct while in view of the officers do not implicate subsection (d):
“6. Plaintiff drove to the Parsons police station with Roberta Kirkland and their son on October 3, 1991 to seek the help of the police in resolving a domestic dispute.
“8. Plaintiff’s deposition states he told the officers that the protective order was dissolved and that if they would follow him home he would show them the order dissolving the protective order.”
Thus, the potentially relevant portions of the statute are in subsection (c). Under 22-2401(c), in order to lawfully arrest Key, the police officers needed probable cause to believe that he had committed a misdemeanor and probable cause to believe that: (1) he would not be apprehended or evidence of the crime would be irretrievably lost unless he were immediately arrested; or (2) he might cause injury to himself or others or damage to property unless immediately arrested; or (3) he had intentionally inflicted bodily harm to another person. In other words, by statute, it was not enough that police officers had probable cause to believe that Key already had violated the restraining order — they also were required to have probable cause to believe either that he already had harmed someone or that there would be serious future consequences from failing to arrest him. See, c.g., State v. Schur, 217 Kan. 741, 746-47, 538 P.2d 689 (1975). In the present case, it appears that the district court’s determination was limited to probable cause to believe that Key already had violated the restraining order. We find nothing in the record to support a finding that Key violated a protective order, if one did exist.
Key complains that the district court focused too narrowly on the arrest to the exclusion of the continued incarceration as the basis for a cause of action for false imprisonment. He contends that false imprisonment could have been shown by the police officers’ continuing to hold him after the courthouse opened the next day and the records there could have been checked. His contention raises a number of questions of fact that were not addressed in connection with the defendants’ motion for summary judgment. Among these would be what records were available to the police officers outside office hours, what additional records were available to them during office hours, and how the formal complaint charging Key with criminal trespass fits in. The complaint was file-stamped at 2:21 p.m. on October 4 after Key was arrested during the evening hours of Thursday, October 3, 1991.
Key complains that the district court entered summary judgment before his expert witness, Professor James Jeans, had been deposed. Ebert and Hein, Ebert point out that Key did not need Jeans’ deposition testimony for the purpose of opposing the motion for summary judgment. Jeans was Key’s expert witness, and Key could have submitted an affidavit from Jeans to support his opposition to the motion. The purpose for which Key contends he needed Jeans’ testimony was to show that a state action for false imprisonment provided an adequate remedy and thereby precluded a 42 U.S.C. § 1983 (1994) action and that issue was concluded in Key’s favor in the second memorandum decision and order of the district court.
We conclude that the uncontroverted findings of fact do not support the trial court’s determination that police officers had probable cause to arrest Key.
The judgment of the district court granting summary judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. | [
-48,
-24,
-8,
-2,
10,
96,
42,
88,
82,
-109,
39,
83,
-83,
83,
5,
122,
-5,
63,
81,
104,
-1,
-77,
23,
32,
-10,
-77,
-7,
-43,
-69,
79,
-12,
-11,
28,
-80,
-126,
-9,
98,
-54,
-27,
92,
-118,
4,
56,
-4,
-13,
0,
-80,
91,
18,
7,
113,
15,
-77,
42,
48,
-62,
-23,
41,
-5,
44,
-32,
-71,
-53,
13,
111,
85,
-93,
-126,
-68,
71,
-8,
82,
-100,
57,
1,
-24,
112,
-74,
-126,
-12,
71,
-119,
-128,
102,
99,
32,
29,
-27,
96,
-72,
7,
24,
-115,
-90,
-103,
72,
105,
5,
-74,
-71,
116,
52,
43,
110,
-2,
13,
29,
-24,
-112,
-38,
-48,
-79,
15,
112,
8,
81,
-21,
35,
-92,
97,
-49,
-92,
92,
71,
114,
-33,
-34,
-74
]
|
The opinion of the court delivered by
Six, J.:
This case considers a personnel recruiters claim for a placement fee. The district court found that there was no contract between plaintiff Marvin Reimer, d/b/a Management Recruiters of Wichita (Reimer), and defendant The Waldinger Corporation (Waldinger), requiring Waldinger’s payment of the claimed fee. Reimer appeals, also advancing a quantum meruit claim. Quantum meruit was not raised below until Reimer filed his post-trial motion to reconsider. The district court denied that motion. Finding no error, we affirm.
Reimer referred four candidates for a commercial heating and air-conditioning sales position to Waldinger’s commercial division. Those four included Pat Lang, who was hired, and Brent Martin, whose later hiring by J.H. Bowman Comfort Systems (J.H. Bowman), Waldinger’s residential division, led to this litigation.
While Don Hammond, Waldinger’s Commercial Service Division manager, was interviewing the referred candidates, Reimer. faxed a “fee policy” containing the referral terms. The Commercial Service Division was one of two separate, independent Waldinger businesses in the Wichita area. The other was J.H. Bowman, which served the residential home and consumer market. J.H. Bowman was located apart from the Commercial Service Division and was not included in Hammond’s management responsibilities. Hammond had only one position available at the Commercial Service Division. He had no authority to hire for J.H. Bowman. After receiving the fax, Hammond contacted Reimer and told him that Waldinger did not agree to the provisions of the “fee policy” as written.
Hammond and Reimer eventually agreed on a fee for hiring Pat Lang which was less than the fee specified in the faxed fee policy. The agreed fee for hiring Lang was paid.
The faxed fee policy specified that if Waldinger or its affiliate hired any of the referred candidates within 1 year, a referral fee would be owed. One of the three candidates, Brent Martin, originally referred but not hired by Waldinger’s commercial division, eventually was hired by J. H. Bowman. Martin, an unsuccessful candidate for Lang’s position, had continued to approach Hammond even though there were no other positions available. Eventually, Hammond suggested that Martin give J.H. Bowman a call. Martin’s individual approach to J.H. Bowman was successful. Reimer claimed a fee for Martin’s employment. Waldinger denied that a fee for Martin’s hiring was owing.
The district court found, “At best [the faxed fee policy] was a written offer, which was rejected by Mr. Hammond.” The district court reasoned that
“there was a verbal contract between the plaintiff and Mr. Hammond, but . . . the terms of that contract were limited and did not include many of the terms and conditions contained in the written fee policy. The only agreement between Mr. Hammond and the plaintiff was that the plaintiff would refer applicants to Mr. Hammond for one sales opening in the commercial and industrial division. Mr. Hammond hired one of the referrals, and the Waldinger Corporation satisfied its obligation to the plaintiff when it mailed in the referral fee which the plaintiff accepted. All the other conditions and stipulations in the fee policy were things that Mr. Hammond never agreed to, and the Court finds that the plaintiff has failed to prove otherwise.”
The district court held that Waldinger owed no referral fee to Reimer for hiring Martin. We find no error.
DISCUSSION
The question whether a binding contract was entered into depends on the intention of the parties and is a question of fact. Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 60, 643 P.2d 100 (1982). Any interpretation of the written terms of a contract, however, would be a question of law subject to de novo review. Utility Maintenance Contractors, Inc. v. West American Ins. Co., 19 Kan. App. 2d 229, 232, 866 P.2d 1093, rev. denied 254 Kan. 1010 (1994).
The terms of the faxed fee policy are not at issue here. Neither party sets out any language of the fee policy for us to interpret. The district court correctly identified the issue as whether a contract existed. Our standard of appellate review requires us to decide whether the district court’s finding of “no contract” is supported by substantial competent evidence and whether the findings are sufficient to support the conclusions of law. See Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993). A negative finding will not be disturbed absent an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Nance v. Harvey County, 263 Kan. 542, Syl. ¶ 7, 952 P.2d 411 (1997).
We do not weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. Our only concern is with evidence that supports the district court’s findings, not with evidence that might have supported contrary findings. Care Display Inc. v. Didde-Glaser, Inc., 225 Kan. 232, 237, 589 P.2d 599 (1979).
Hammond was the Waldinger employee who dealt with Reimer on the management recruitment contract. Hammond’s deposition testimony was presented at trial. (He had moved out of state.) In his deposition, Hammond said:
“That agreement [the terms of the “fee policy” fax] did not exist because we did not follow it. We used a totally different verbal agreement.
“.. . But again, as I say, we didn’t use that agreement so, you know, [Reimer] and I had a very candid, pointed conversation about that agreement. And it was determined at that time that we were going to just set up a very simple, you know, percentage of a salary that we agreed upon, and that we also would waive, you know, warranties and such. . . .
“Again, we’re not talking about, you know, avoiding. We had discussion and negotiated, you know, equally on [Reimer’s] side. In fact, it was [Reimer’s] suggestion that we do these things. I just said, It’s too much fee, you know. Can we do something about that? And at that time [Reimer] said, Yes, this is what we’ll do, based on this, this. And I said, Good deal.”
Later, Hammond was questioned by Waldinger’s counsel:
“Q. Let’s talk about the agreement. When you were sent this document that’s dated April 25, 1996, the purported fee agreement, did you accept its terms?
“A. No, I did not. We changed the terms of the agreement.
“Q. Did you call Mr. Reimer up and say, I don’t agree to this?
“A. Yes, I did. And that’s how we came about our new — our new agreement.
“Q. Ultimately you made a verbal agreement . . . with Mr. Reimer that had terms different than this document; is that correct?
“A. That’s correct.”
Later, on questioning by Reimer’s counsel, this exchange occurred:
“Q. You renegotiated the fee on Mr. Lang?
“A. That’s correct. Actually, the agreement — we renegotiated the agreement more than just the fee.”
The record reflects substantial competent evidence to support the district court’s findings.
The findings are sufficient to support the conclusions of law that: (1) the only agreement was verbal and (2) “there was nothing in the verbal agreement between the plaintiff and Mir. Hammond which causes the Waldinger Corporation to be liable for any referral fee for Mr. Martin.”
Reimer advances a quantum meruit claim on appeal. His only mention of quantum meruit below was in his motion for reconsideration, which stated:
“Although the plaintiff’s claim is based on contract, the case has equitable components as well. When Waldinger hired Martin without paying plaintiff’s fee, plaintiff was not only deprived of the fee and defendant was unjustly enriched, avoiding not only the fee and the expenses associated with placing ads, interviewing a multitude of applicants, etc. Plaintiff has also been precluded from offering Mr. Martin to other potential employers who could have kept their promise and paid the fee.”
The district court denied the motion.
There was no evidence presented at trial regarding the expenses Waldinger avoided, such as advertising and interviewing costs. The 15-page pretrial order stated that “[t]he parties reserve objection as to the statement of the issues, but agree that the case shall be argued within the parameters contained herein.” Eighteen “issues of fact,” ten “issues of law,” and three “questions of evidence or procedure” were then enumerated, and none raised the theory of quantum meruit. The order concluded with a statement that the trial “shall be limited to the issues . . . listed.” Under these circumstances, it was within the properly exercised discretion of the district court to deny the motion to reconsider and thus decline to entertain Reimer’s quantum meruit argument.
Affirmed. | [
80,
-8,
101,
-35,
24,
-30,
50,
50,
122,
-95,
55,
83,
-17,
-50,
-123,
123,
-45,
29,
80,
106,
87,
-77,
99,
-32,
-42,
-13,
-13,
-59,
-7,
79,
100,
-4,
76,
40,
2,
-43,
-58,
-62,
-60,
-40,
38,
4,
57,
104,
-7,
65,
48,
91,
-106,
75,
113,
46,
-15,
44,
17,
-61,
44,
60,
125,
-3,
-32,
-39,
-29,
-123,
-3,
22,
-112,
5,
90,
83,
-40,
14,
-106,
-71,
40,
-64,
90,
-90,
-126,
-76,
11,
-71,
37,
40,
99,
34,
17,
-18,
-20,
-108,
61,
-48,
29,
-91,
-111,
56,
90,
15,
-106,
-66,
114,
18,
5,
-4,
-30,
28,
31,
108,
10,
-113,
-28,
-77,
79,
-10,
-100,
-113,
-1,
-44,
20,
116,
-58,
-96,
95,
71,
50,
21,
6,
-114
]
|
The opinion of the court was delivered by
Benson, J.:
This proceeding is upon a transcript of the record. A motion is made to dismiss on the grounds. that the transcript is not complete, that all the neces sary parties are not before the court, and because the certificate is insufficient. The plaintiffs in error have asked leave to amend the transcript by inserting certain parts of the record which appear to have been omitted by the clerk.
The transcript is imperfect and confusing in its arrangement, and even with the amendments proposed it is doubtful whether it would be complete. The transcript should contain everything that is a part of the record, and what the record consists of is pointed out in section 417 of the civil code. (Gen. Stat. 1901, § 4866. See, also, Neiswender v. James, 41 Kan. 463, 21 Pac. 573; Comm’rs of Elk Co. v. Scott, 51 Kan. 139, 32 Pac. 919; Cook v. Challiss, 55 Kan. 363, 40 Pac. 643.) We have concluded, however, to consider this transcript as amended, as requested, and, for the purposes of review in this case, to consider it sufficient.
The original petition alleged the execution of certain promissory notes by the defendants, and chattel mortgages to secure their payment, averred default in such payment, and prayed for a judgment, for the amount due upon the notes and for the sale of the mortgaged property to satisfy such judgment. The petition was filed September 8, 1905. On the same day -the plaintiff filed an affidavit to replevy the property described in the petition and in the mortgages, and an order of replevin was issued thereon and the property taken by the sheriff and afterward delivered to the plaintiff, except certain animals, which, were returned to the defendants by the plaintiff’s order. On September 11, 1905, the defendants filed their answer, not verified, containing a general denial, allegations of payment, and an averment of the tender of $1500 in satisfaction of the claims of the plaintiff. On the same day defendants filed their motion to set aside the writ of replevin, on the grounds that it had been improvidently issued, that no petition -in replevin had been filed, and that the affidavit was insufficient to show special ownership in the plaintiff. At the same time plaintiff presented an application for leave to file an amended petition. Both motions were heard at the same time; on the' same day, December 11, 1905, leave was given to file the amended petition, and the motion to quash the writ was denied. Thereupon the plaintiff filed an amended petition setting up a cause of action in replevin for the same property described in the original petition, alleging default in payment, demand for the property, the refusal thereof, and the unlawful detention by the defendants after such refusal, and praying for judgment for possession. A motion was made by the defendants to strike this amended petition from the files, for the reasons that it changed the cause of action from one in equity to one at law, and from a petition on contract to one in tort, and that it sought to confer jurisdiction in replevin, which the original petition did not do. This motion was denied, and the defendants elected to stand upon their answer filed to the original petition. On the 6th day of March, 1906, the cause was tried,, and the jury returned a verdict in the usual form in replevin finding that the plaintiff had a special ownership in the property of the value of $1900.81, being the amount due on the mortgages at the time the action was brought, that the plaintiff was entitled to the immediate possession of the property, and that the defendants wrongfully detained the same. The jury also answered numerous special questions showing credits upon the notes for payments made at different times, the allowance of extensions, and other matters appropriate in an accounting to determine the amount due upon the securities. No damages were allowed for detaining the property.
Thus it appears that while this proceeding was commenced as a suit to foreclose the mortgages it proceeded, after the amendment, as an action in replevin for the same property, terminating in finding the amount due upon-the mortgages and a judgment in the ordinary form for the return of the property or for the value of the special ownership.
The defendants did not ask for the imposition of terms on the allowance of the amendment, and the trial did not take place until about three months after the amendment. There is no suggestion that defendants were unprepared to try the issue finally presented, or that such trial resulted in any hardship or wrong. The plaintiff, however, appears to have excepted to an order of the court allowing the withdrawal by the defendants of a tender made by them, which order was affirmed in this court. (Windsor v. Snider, 76 Kan. 178, 90 Pac. 820.)
It must be conceded that such an amendment was not in the ordinary course of practice, but it does not appear to have affected the substantial rights of the defendants. If no amendment had been allowed the same accounting would have been proper, % the same finding of the amount due, and an order for the sale of the property would have been made. The plaintiff having obtained possession by this action, the defendants were entitled to have the property so sold. (Gen. Stat. 1901, § 4253.)
The code abolishes the forms of actions, provides that the petition shall state the facts constituting the cause of action, and that causes of action, whether heretofore denominated legal or equitable, or both, may be united where they arise out of the same transaction, or transactions connected with the same subject of action; and further, that amendments may be made in furtherance of justice which do not substantially change the cause of action. The cause of action here was the default of the defendants in keeping the conditions of the chattel mortgages. By reason of these defaults the plaintiff might have maintained a suit for foreclosure or an action of replevin. The transaction to be investigated on the trial was the same whichever form of rem-' edy was sought. When this identity remains the amendment does not, substantially change the cause of action. (Bogle v. Gordon, 39 Kan. 31, 17 Pac. 857; Spice & Son v. Steinruck, 14 Ohio St. 213.)
This change does not refer to the form of the remedy but to the general identity of the transaction. Thus it was held in Culp v. Steere, 47 Kan. 746, 28 Pac. 987, that a petition founded in tort for false representations in the sale of a horse could be properly amended so as to include a claim upon an express warranty upon the contract of sale.
Where a petition alleged fraudulent representations, and prayed for the rescission of a contract induced thereby, an amendment whereby damages were claimed for breach of the same contract was held proper. (Stevens v. Matthewson, 45 Kan. 594, 26 Pac. 38.) In that case the original petition disaffirmed, and the amendment affirmed, the contract, but the transaction to be judicially examined remained the same.
The plaintiff first sought to have the mortgages foreclosed and thus make his security available. Later, by amendment he sought to recover possession of the same property, under the same mortgages, for the same purpose. Can it be said that this substantially changed the cause of action? If, however, we should concede that the allowance of the amendment was technically erroneous, still the substantial rights' of the defendants were not affected thereby. The issue between the parties appears to have been fully and fairly tried, and no complaint is made of the final result. In this situation the language of Mr. Justice Burch in Hopkinson v. Conley, 75 Kan. 65, 88 Pac. 549, is pertinent:
“If it be conceded that the rules of procedure have been violated in this case the judgment cannot for that reason alone be overturned. The legislature has enjoined upon this court the duty of looking beyond defects and errors in pleadings and proceedings to ascertain if they did in fact affect the substantial rights of the party complaining of them. Fixed rules are to be observed and enforced, but not merely for the purpose of vindicating them. Harm must result from a wrong decision or it cannot be reversed.
“ ‘The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.’ (Code, § 140; Gen. Stat. 1901, § 4574.)” (Page 67.)
The judgment is affirmed. | [
-16,
108,
-112,
-67,
-88,
-32,
42,
-118,
65,
-95,
35,
83,
109,
-62,
20,
41,
-14,
45,
85,
120,
70,
-78,
22,
-63,
114,
-77,
-48,
-43,
-75,
77,
-12,
84,
76,
48,
-62,
-43,
102,
-24,
-61,
84,
-114,
-124,
-87,
-59,
-45,
-128,
52,
41,
66,
11,
113,
110,
-13,
47,
56,
-61,
105,
40,
-49,
109,
-32,
-16,
-118,
5,
89,
2,
-79,
68,
-100,
71,
104,
-86,
-104,
49,
3,
-24,
114,
54,
-122,
116,
79,
-71,
41,
102,
98,
49,
93,
-17,
56,
-116,
47,
55,
-115,
38,
-110,
72,
-21,
41,
-74,
-99,
125,
66,
7,
92,
-25,
-116,
29,
-20,
3,
-50,
-42,
-109,
15,
60,
-104,
3,
-5,
-125,
-112,
113,
-59,
-16,
92,
103,
25,
-101,
-114,
-67
]
|
The opinion of the court was delivered by
Benson, J.:
The plaintiff, E. T. Mears, alleged that he was the owner and in possession of certain. real estate described in his petition, and prayed for judgment quieting his title. The defendant, Sarah A. Wilkinson, in her answer alleged that she was the owner and in possession of the property, and prayed for judgment quieting her title., The evidence tended to prove that the plaintiff was in possession claiming under a tax deed and that he had made improvements on the property. The evidence also tended to prove that the plaintiff held such possession as the agent of the Neosho Investment Company, which company had attended to the taxes and cared for the property for the defendant, who’ at an earlier date, held a mortgage thereon, which mortgage was afterward foreclosed; that the defendant was the purchaser at the foreclosure sale, and held the title to the property in fee, unless devested by the tax deed; and that there was an excess levy of one mill on the dollar levied for state purposes on property in Montgomery county included in the amount for which the property was sold for taxes. Evidence was also given of the amount of taxes paid by the plaintiff, and interest thereon. Other evidence tended to show that just previous to the tax sale in question the investment company had notified the plaintiff to pay no more taxes on property in their charge, but that no notice of this fact had been given to the defendant.
Upon all the evidence, of which the foregoing is an outline, substantial questions of law and fact were presented for adjudication upon the issues made by the pleadings. Both of the parties produced evidence tending to support their respective claims, which were duly submitted to the court for decision and judgment.
At the conclusion of the evidence the court took the case under advisement until a later day, and then announced the decision that neither party was entitled to recover, and therefore dismissed the suit at'the cost of the plaintiff. Thereupon each party in turn moved for judgment, which motions were denied. The defendant further moved for judgment on the pleadings and evi-' dence, which was also denied. She excepted to these rulings. Judgment was entered by the court dismissing the action at the cost of the plaintiff.
The statute provides that actions may be dismissed:
“First, by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court.
“Second, by the court, where the plaintiff fails to appear on the trial.
“Third, by the court, for the want of necessary parties.
“Fourth, by the court, on the application of some of the defendants, where there are others whom the plaintiff fails to prosecute with diligence.
“Fifth, by the court, for disobedience by the plaintiff of an order concerning the proceedings in the action.
“Sixth, in all other cases, upon the trial of the action the decision must be upon the merits.” (Civ. Code, § 397; Gen. Stat. 1901, § 4846.)
This case was not within any of the foregoing provisions for dismissal, and the decision shopld have been upon the merits. It is argued by plaintiff that the defendant lost nothing, because she had no right to recover ; but that was the very matter she had the right to have decided. (Moore v. Toennisson, 28 Kan. 608; Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119; Amos v. Loan Association, 21 Kan. 474; Venable v. Dutch, 37 Kan. 515, 15 Pac. 520, 1 Am. St. Rep. 260.)
We express no opinion upon the merits of the suit. It was the province of the trial court to determine the facts and pronounce judgment thereon. Having failed to do so, the judgment of dismissal is reversed and the cause remanded for a new trial. | [
-16,
124,
-12,
-116,
8,
-32,
34,
-56,
-31,
-95,
-73,
83,
101,
-54,
16,
45,
-10,
89,
117,
105,
70,
-77,
7,
35,
-46,
-77,
-15,
-35,
-80,
-36,
-12,
-41,
76,
49,
-30,
-107,
102,
-46,
-57,
88,
14,
-113,
-119,
69,
-23,
64,
52,
43,
98,
75,
117,
-114,
-13,
45,
57,
75,
73,
44,
75,
61,
80,
-8,
-82,
-123,
79,
7,
-77,
52,
-98,
-62,
-24,
10,
-112,
49,
0,
-24,
115,
-74,
-106,
116,
73,
-101,
9,
36,
98,
1,
69,
-1,
-4,
-120,
46,
124,
31,
-89,
-45,
88,
11,
73,
-65,
-99,
124,
0,
6,
-2,
-20,
20,
93,
108,
7,
-50,
-42,
-77,
-115,
60,
-102,
11,
-25,
19,
48,
112,
-51,
-96,
92,
71,
57,
-69,
-113,
-75
]
|
The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Lewis Billings against the Atchison, Topeka & Santa Fe Railway Company to recover damages resulting from the failure of the company to maintain proper cattle-guards where the railway enters and leaves the fenced fields of his farm, and also to enjoin the company from hereafter operating its road through the farm without completing the enclosures on his farm with cattle-guards as the law prescribes. As the railway is constructed it intersects the fenced boundaries of Billings’s farm of 533 acres at eight places; His land had been fenced and arranged for farming and stock-raising, provision having been made for the rotation of crops and the handling of stock so that water, shade and shelter were available. It was shown beyond cavil that the railway company neglected to maintain cattle-guards at the intersection of the boundaries of Billings’s farm for a period of two years prior to the commencement of this action. At some places there were no cattle-guards of any kind for a time, and at other places unsuitable guards were maintained, which did not prevent stock from entering his fields and passing from one field to another along the right of way. The verdict of the jury awarded Billings damages in the sum of $410.50, made up' of the following items: For labor expended in guarding cattle in 1903, $34; for the guarding of cattle sixty days in 1904, $60; for loss of pasturage, $50; for diminished rental or usable value of the entire farm, two years, twenty-five cents per annum per acre, amounting to $266.50.
That Billings was entitled to some damages is not contested, but.it is argued in behalf of the railway company that there is a duplication of damages in the ver diet, and that the .item of $26,6.50 for depreciation in the rental value of the farm should be deducted. An examination of the testimony and findings, however, does not lead to the opinion that there was a double allowance for the same loss. In his petition Billings alleged, and offered proof showing, specific expenses or losses for watching cattle at' particular times, made necessary by the openings which the railway company left in his fenced fields. The item of pasturage was apparently allowed for the complete loss of grass and fodder in particular fields which Billings was unable to use because of the absence of cattle-guards at the intersections of his fences. The allowance of twenty-five cents an acre appears to be for depreciation and loss from the inability of Billings to use his farm as it was designed to be used and the increased inconvenience and expense of carrying on the business in which he was engaged. The testimony is that his plans were deranged and that his farm, which had been arranged and fenced to carry on ,a cattle business, was rendered unfit for that use, so that instead of keeping and feeding from two to three hundred head of cattle, as before, he was compelled practically to abandon the business and had only been able to handle about twenty head of cattle. For this depreciation and loss the jury allowed, on a per acre basis, $266.50 for the period of two years. These items were pleaded separately; they were treated as separate and distinct losses in the testimony, and the court in instructing the jury treated this depreciation of rental value as something wholly apart from the specific losses of guarding cattle, as well as that arising from the loss of a particular pasture. Although complaining of the allowance of the item of $266.50, the railway company does not ask for a reversal of the judgment because testimony was admitted on the basis that these items were distinct losses, nor that they were so submitted in charging the jury. All that is asked in behalf of the railway company is that the last item be stricken out. A reading of the record does not con vince us that double damages were allowed for any loss arising out of the neglect of the company, and, considering the evidence as to the loss sustained in consequence of the company’s neglect, the award is far from excessive.
It is next contended that the court was not justified in issuing a mandatory injunction. Upon the testimony it was found that the operation of the railroad through the Billings farm without cattle-guards, and the company’s persistent and long-continued neglect and refusal to close up the openings with cattle-guards, after due notice, was a continuing nuisance. The decree of the court enjoins the company from continuing the nuisance, and commands it to keep and maintain proper guards at all points where the railroad enters and leaves the fenced lands of Billings. It is true, as contended, that the particular function of the remedy of injunction is to restrain and prevent, rather than to command and compel; but there is unquestioned power in a court of equity to issue mandatory injunctions on proper occasions. It is a remedy to be sparingly exercised — one that is rarely granted until after a final hearing and except in cases where the injury is irreparable, the remedy at law inadequate, or to prevent a multiplicity of suits. It has been granted where a railway company in constructing its road built an embankment which wrongfully diverted the running water from the land of a person through whose land the water naturally flowed before the road was built. It was contended there,' as here, that the damages inflicted were measurable and that the exigencies of the case were not such as to warrant the exercise of the mandatory power of a court of equity. This court, recognizing the rule that the remedy can only be employed in extreme cases, held that it was a proper occasion for issuing a mandatory injunction and affirmed the decree compelling the opening of the waterway. (A. T. & S. F. Rld. Co. v. Long, 46 Kan. 701, 27 Pac. 182, 26 Am. St. Rep. 165.) A railway company has been compelled to perform the duty to receive and move the cars of another company. (Chicago, B. & Q. Ry. Co. v. Burlington, C. R. & N. Ry. Co., 34 Fed. 481.) A consumer of gas who had affixed a governor to a meter without the consent of the gas company was commanded to remove the same • by a mandatory injunction. The act of attaching the governor to the meter belonging to another was designated as a trespass of such a character as to justify a mandatory order. (Blondell v. Consol. Gas Co., 89 Md. 732, 43 Atl. 817, 46 L. R. A. 187.) A patron of a natural-gas company who had contracted with the company to furnish him a supply of gas to manufacture glass, and had expended much money in fitting his factory with appliances for using gas, was granted an injunction preventing the company from shutting off the supply and also compelling it to restore the flow of gas as it existed before the wrongful interference and stoppage of the flow, and this on the ground that the loss was incapable of accurate adjustment. (Whiteman v. Fuelgas Co., 139 Pa. St. 492.) In Scofield v. Railway Company, 43 Ohio St. 571, 3 N. E. 907, 54 Am. Rep. 846, an injunction was issued compelling a railway company to give a shipper equal facilities and.rates, such as were given to other and more-favored shippers, and it was issued largely upon the theory that to obtain relief at law would necessitate a multiplicity of suits. The writ has also been allowed to compel the removal of enclosures around public school-lands which it was held constituted a nuisance. (The State v. Goodnight, 70 Tex. 682, 11 S. W. 119.) In United States v. Brighton Ranche Co., 26 Fed. 218, Judge Brewer held that a suit for an injunction was the appropriate remedy to compel the removal of a fence which had been erected on government land. The mandatory injunction was awarded, although it was conceded that the government had a right to proceed by an action of ejectment to remove the defendant from the occupancy of the land. It was remarked that “whether the act of the defendant comes within the technical definition of pur prestare, or that of a public nuisance, we are of the opinion that the government can come into a court of equity and by its orders have an end put to this trespass on the public rights.” (Page 218.) Where one person built a wall partly projecting on the land of another, who applied to a court of equity to secure the removal of the wall, it was ruled that there was no plain and adequate remedy at law for the wrong and that a mandatory injunction should issue requiring the offender to remove the structure. (Norton v. Elwert, 29 Ore. 583, 41 Pac. 926.) In Wheeler v. Rochester and Syracuse Railroad Co., 12 Barb. (N. Y.) 227, a railroad company was proceeding to construct its road across the farm of Wheeler without providing such farm crossings as the law required, and the court held that the company should be enjoined from proceeding with the construction of the railroad without providing suitable crossings. It is not uncommon for courts of equity to grant writs prohibitory in form which are mandatory in character and effect. So it was said by the vice-chancellor in North of Eng. Junc. Railway Co. v. Clarence Railway Co., 1 Coll. (Eng.) 507, “that injunctions in substance mandatory, though in form merely prohibitory, have been and may be granted by the court is clear. This branch of its jurisdiction may be one not fit to be exercised without particular caution, but certainly it is one fit and necessary under certain circumstances.” (Page 521.) The foregoing are only a few of the many cases which might be cited wherein mandatory injunctions have been issued. Other examples which illustrate the circumstances under which the remedy may be employed are collated in the note to Moundsville v. Ohio R. R. Co., 37 W. Va. 92, 16 S. E. 514, in 20 L. R. A. 161.
In this case it was developed that, several years before the bringing of this action, Billings had been compelled to bring another action and had recovered damages resulting from the neglect of the railway company to maintain cattle-guards at the intersections of his farm. Before bringing the present action he had given notice of the defects and unsuccessfully endeavored to induce the agents and officers of the railway company to provide and maintain cattle-guards. The opening of these gaps in his fields and the operation of the railroad through them without maintaining cattle-guards was contrary to the express provision of the statute and a direct invasion of Billings’s rights. It was a wrong of such a character, and had continued for so long a time, as to constitute a nuisance, and one which justified the issuance of a mandatory injunction. It is argued that in his petition the plaintiff did not designate the wrong as a nuisance nor ask that the court declare it to be a nuisance. The allegations of the petition, however, describing the wrong and injury charged a course of conduct and such an invasion of the plaintiff’s rights as would constitute a nuisance, and, upon proof of the same, the court was justified in the finding that was made. Apart from that finding the injury was of such a character that any other remedy would have been .wholly inadequate, and under the authorities cited a mandatory injunction was an appropriate remedy. The statute, it is true, provides that where a railway company neglects to maintain cattle-guards the injured party may recover damages from the wrong-doer, but it is plain that he cannot be adequately compensated in damages for the injury inflicted. For his protection many actions at law would be necessary, and in none of them could adequate compensation be recovered. In one sense the injunction restrains as well as commands. It restrains the railway company from operating its road through the plaintiff’s fenced fields without closing the openings with cattle-guards and from continuing the nuisance. But, of course, it is substantially mandatory in character, and proceeds on the assumption that the company will continue to operate its road, and commands it to construct and maintain cattle-guards during the time of operation. The facts in the case furnish an example of one of the extreme cases which justify the issuance of a mandatory injunction.
The judgment of the district court is affirmed. | [
-14,
110,
-99,
-115,
10,
104,
-86,
-102,
97,
-85,
36,
83,
-23,
-53,
20,
121,
-25,
13,
-11,
106,
-10,
-105,
23,
-29,
-109,
-13,
-13,
-59,
-79,
72,
108,
86,
77,
16,
10,
21,
-90,
-32,
65,
-100,
-114,
37,
-85,
-19,
89,
16,
60,
123,
86,
79,
49,
-97,
-5,
42,
29,
-45,
41,
46,
107,
45,
-111,
113,
-86,
-60,
63,
6,
16,
102,
-98,
37,
-56,
63,
-104,
53,
9,
-20,
123,
-96,
-106,
-12,
97,
-103,
13,
102,
98,
105,
85,
-49,
124,
-120,
14,
-33,
-113,
-26,
0,
16,
35,
32,
-106,
29,
-48,
70,
7,
126,
-3,
69,
89,
52,
-123,
-117,
-108,
-25,
-97,
124,
-112,
23,
-53,
-95,
50,
97,
-54,
-94,
76,
-57,
114,
-101,
-113,
-100
]
|
The opinion of the court was delivered by
Johnston, C. J.:
In a proceeding to condemn a right of way for an interurban railroad, laid out between Kansas City and Olathe, the Kansas City, Olathe, Lawrence & Topeka Railway Company appropriated a strip of land through the 160-acre farm of John Weiden-' mann. For the land taken and the injury to the residue of the tract the commissioners allowed Weidenmann $1935 as damages. An appeal was taken to the district court, where the award was increased to $2937.50. In this court the railway company challenges the methods by which the values and damages were proved.
The first specification of error is that Weidenmann was allowed to state what he regarded to be the value of the land, instead of testifying to its market value. It is true, as contended, that the compensation to which an owner is entitled is to be measured by the market value of the land, but there is no substantial ground for the claim that the rule was violated in this instance. The witness was interrogated at some length on the subject, and in all of the questions except two the in quiry was as to the fair market value of the land, and the omission of the word “market” in those two appears to ■ have been unintentional. Even on the cross-examination the witness stated specifically that the values he had given were the market values.
Another witness was asked to give the market value of the land on and prior to September 23, 1905. The date mentioned was the time when the report of the commissioners was filed, and the testimony as to the market value of the land taken should, of course, have been directed to that time. In determining the damages to the land not taken it is proper to inquire as to the market value of the land immediately before and immediately after the appropriation. It is argued that too much range of time was given by the use of the word “prior” in the question asked, and that the examination of the witness should have been more closely confined to the time the land was appropriated. By other questions, however, the attention of the witness was directed to the specific time of appropriation, and he gave the value as of that time and the value immediately after that time. As to this matter his answers were consistent and no possible prejudice arose from the misuse of the word in a single question.
An objection is made to the testimony of one Tessar, who, it is said, was not shown to be qualified to testify in regard to the value of the land in question. It appears that he was a farmer who had lived within a mile of the Weidenmann land for twenty-two years; that he knew the course of the railroad through the land and the condition in which it was left by the construction of the railroad, including the depth of the cuts and the height of the fills, as well as the difficulty in passing from one side ,of the railroad to the other. While he knew of no sales in September, 1905, he stated that he was acquainted with the market value of the land in that neighborhood. He was competent to express an opinion. The fact that he did not know of an actual sale at the time of the appropriation did not disqualify him as a witness nor prevent him from giving a fair estimate of the market value of the land at that time.
“A farmer living in the vicinity is presumed to be familiar with and to know the value of farm lands, and there can be no doubt of his competency when it is shown that he knows the situation and character of the land, its productiveness and availability for use, and who further states that he knows the value of the same, as did the witnesses in the present case.” (L. & W. Rly. Co. v. Hawk, 39 Kan. 638, 841, 18 Pac. 943, 7 Am. St. Rep. 566.)
The testimony of this witness was sufficiently definite as to time.
There is complaint that a witness was permitted to testify, over an objection, as to the value of the land for farming purposes. The owner was entitled to show its market value for every purpose to which it was adapted. The fact that it has been used for one purpose does not prevent him from showing its availability for other appropriate uses and its value for such uses. Generally witnesses should give their opinions as to the market value for any suitable purpose, rather than the value for any particular purpose, but in forming their opinions they may take into consideration the most advantageous use to which the property may be applied, having reference to existing and prospective conditions in the community. (Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577; Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138, 55 Am. Rep. 242; C. K. & W. Rld. Co. v. Willits, 45 Kan. 110, 25 Pac. 576; Irrigation Co. v. McLain, 69 Kan. 334, 76 Pac. 853; In the matter of Furman st., 17 Wend. [N. Y.] 649; Goodin v. Cincinnati and Whitewater Canal Company and others, 18 Ohio St. 169, 98 Am. Dec. 95; Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206; Railway Company v. Forbis, 15 Mont. 452, 39 Pac. 571, 48 Am. St. Rep. 692; Spring Valley W. W. v. Drinkhouse, 95 Gal. 220, 28 Pac. 681; 2 Lewis, Em. Dom., 2d ed., § 479.) Of course, this does not warrant the introduction of testimony as to fanciful uses to which the land is not naturally adapted nor its value for purposes which are outside the bounds of reasonable expectation. There is no ground for the objection in this case, as the purpose to which the land had been devoted and the one to which it is adapted was the one taken as the basis of valuation.
No error was committed in excluding testimony of particular sales proposed to be given on direct examination of defendant’s witnesses. The general selling price in the neighborhood is one of the tests of value, while the price paid for a particular property may have been a sacrifice from necessity, the result of trickery or fraud, or of recklessness and folly. The dissimilarity in properties makes comparison difficult and impracticable; besides, such a rule would introduce as many collateral issues as there were sales, thus making inquiry almost interminable. To test the knowledge of witnesses and the value of their opinions in such cases they may be asked, on cross-examination, as to other transactions and as to sales of other property. On the main issue, however, the price an owner should receive cannot be established by some specific or exceptional' case, and the evidence on the direct examination was therefore properly confined to the general selling price in the neighborhood. (K. C. & T. Rly. Co. v. Vickroy, 46 Kan. 248, 26 Pac. 698; C. K. & N. Rly. Co. v. Stewart, 47 Kan. 704, 28 Pac. 1017.)
Exception was taken to the refusal to give an instruction, but an examination of the record discloses that the rule of law suggested by the request was embodied in the general charge and in language that is not open to objection.
There being no substantial error in the record, the judgment of the district court is affirmed. | [
-14,
110,
-67,
-113,
-38,
96,
40,
-120,
65,
-96,
-90,
83,
77,
-34,
0,
57,
-26,
29,
-48,
106,
-58,
-77,
83,
-29,
-110,
-45,
115,
-51,
-79,
76,
100,
70,
77,
32,
74,
-99,
102,
-30,
93,
92,
-114,
12,
-87,
77,
-39,
96,
60,
27,
20,
78,
17,
-70,
-5,
40,
25,
-45,
109,
46,
-17,
41,
-127,
-8,
-94,
15,
111,
6,
0,
4,
-100,
7,
72,
12,
-112,
53,
11,
-24,
119,
-92,
-106,
-12,
5,
-103,
44,
102,
103,
32,
13,
-17,
-4,
-120,
46,
-102,
-115,
-90,
6,
80,
99,
97,
-66,
-103,
-12,
84,
7,
126,
-26,
13,
-35,
125,
3,
-117,
-106,
-78,
-113,
100,
-102,
3,
-37,
-91,
20,
112,
-51,
-94,
93,
87,
122,
-101,
-113,
-67
]
|
Per Curiam:
This is an action by Minor to recover from Fike part of the price of a tract of land, the sale of which had been negotiated by Fike. Minor had previously purchased the land through Fike, and before the transfer was consummated it was again sold through Fike to another. It was alleged that Fike agreed to sell it on commission, that later he reported the sale at'$4600 when in fact he had received $5900, and therefore Minor asked for the balance, $1300. Fike denied that he was to sell the land on commission but claimed that -it was to be a sale at a net price satisfactory to Minor. Minor agreed to, and 'did, sell the land at $4600, and before the transaction was closed he learned that Fike had received more than that sum for the land. In a dispute which arose between them Minor insisted that as Fike had gotten more than $4600 for the tract he should not only forgive the commission, the ■ compensation for selling the land, but should pay Minor part of the- excess which had been received. ' After considerable bantering a compromise was made by which Fike agreed to pay, and Minor to accept, $30 as a final settlement of the transaction. Fike issued his check for that amount and gave it to Minor, and on the back of the check there was written a receipt, or statement, that the check was given as payment and settlement in full on the land transaction.
Upon testimony, some of which was conflicting, the trial court found that Minor, knowing and insisting that Fike had received much more than $4600 for the land, settled with him, and that this settlement was binding upon both parties.
Granting that there was misrepresentation as to the price received for the land when the sale was reported, it must be held under the testimony and findings of the court that there was no fraud in the compromise and settlement subsequently made. There was knowledge that Fike had received considerable more than was paid to Minor, a dispute as to what portion of the excess should be paid to- Minor, and a settlement without fraud as to the amount. A compromise and settlement of a bona fide dispute, although the amount agreed to be paid may be much less than is actually due, is supported by a consideration, and if fairly made bars a recovery on the claim included in the settlement.
The settlement in this case, resting as it does on suf-' ficient testimony, makes the findings of the trial court conclusive on this review. The judgment is affirmed.
Johnston, C. J., Greene, Burch, Mason, Porter, Graves, JJ., concurring. | [
-14,
-24,
-39,
-52,
-102,
112,
42,
26,
77,
-9,
39,
115,
-21,
70,
20,
117,
-26,
-71,
64,
106,
-45,
-78,
7,
-29,
-46,
-77,
-47,
77,
-75,
-51,
-4,
85,
77,
40,
-118,
21,
98,
-30,
-51,
-46,
-114,
37,
-102,
97,
-39,
66,
52,
61,
16,
107,
49,
-118,
115,
40,
53,
67,
105,
46,
45,
-71,
-47,
-24,
-81,
-121,
-1,
7,
-126,
20,
-2,
74,
-38,
46,
-112,
125,
9,
-55,
119,
54,
-122,
116,
9,
-85,
-88,
98,
102,
32,
101,
-17,
-16,
-40,
47,
-66,
-115,
-89,
-12,
88,
1,
105,
-67,
-100,
116,
20,
46,
124,
-22,
13,
25,
108,
3,
-54,
-42,
-125,
45,
62,
-113,
-117,
-17,
-97,
19,
96,
-49,
-26,
92,
118,
56,
-61,
-113,
-5
]
|
The opinion of the court was delivered by
Smith, J.:
It appears from the deed that at the time of the tax sale the entire taxes, interest and costs remaining unpaid upon the northeast quarter of section 26, either as an entire tract or upon the several tracts composing the same, was $18.75, and that at the time of the execution of the deed to Larabee, to whom had been assigned the tax-sale certificate, the east half of the quarter-section had not been redeemed, but that the west half had been redeemed, as provided by law.
The deed having been issued and recorded more than five years before the commencement of the action, the principal and controlling question in this case is whether, to support the deed, we may presume that the quarter-section of land was assessed, taxed and sold in two tracts, viz., the east half and the west half thereof. It is conceded by the plaintiff in error that from the language of the deed alone we might indulge this presumption in support of the deed, and that all proper presumptions should be indulged to support a tax deed which has been recorded five years. He contends, however, that it is also to be presumed that the officers of the county did their duty, and that such presumption overcomes the presumptions that otherwise might be indulged in support of the deed. He calls attention to several sections of articles 10, 14, 15, 18 and 19 of chapter 107 of the General Statutes of 1901, which require the assessor to make out a correct and pertinent description of each piece, parcel or lot of real property in the township or city by him assessed, and to assess the same from actual view, and make a return thereof to the county clerk, with the same particularity of description, and in a separate column state the value by him attached to each such piece, parcel or lot; also, that the county clerk shall determine the amount to be levied upon each tract and certify the same to the county treasurer, and that the county treasurer, upon receiving the tax-roll, shall enter in a separate column opposite the description of each tract or parcel of land the amount of unpaid taxes thereon; also, that when the taxes on lands have been delinquent for the time specified in the statute the treasurer shall advertise each tract for sale, and the time of the sale, and that before the time expires- for redemption the treasurer shall publish a list of all unredeemed lands, describing each tract or lot as the same was described in the tax-roll and stating the amount which is due on each parcel.
We have carefully examined these provisions and are unable to see why it may not be presumed in sup port of the deed that the assessment, return of the assessment and the levy of the tax were made separately upon the east half and the west half of the quarter-section, in full compliance with the statute; that all the subsequent proceedings leading up to and including the sale were had in accordance therewith; and that the aggregate sum for which the two tracts were sold was $18.75. If this was' the fact — that all the proceedings with, reference to the two separate tracts constituting the quarter-section were thus taken, and if neither of the tracts had been redeemed before the making of the tax deed, and the purchaser had required both tracts to be included in one deed, in accordance with the provisions of section 7677 of the General Statutes of 1901, then it would have been necessary to state in the deed the amount of taxes, interest and penalty for which each separate tract was sold and conveyed. In this case, however, only one tract was conveyed, and the deed recites the consideration for the conveyance of such tract only. We do not see that there is any necessary conflict between the presumption that the quarter-section in question was sold in two separate tracts and the presumption that the officers of the county performed their duties as required by statute in all the steps leading up to and including the sale.
It has been frequently held in this court, in substance, that where a tax deed does not upon its face show that it has been issued in violation of law and is void, and it does appear that it has been issued and recorded for more than five years, all reasonable and proper presumptions as to the regularity and legality of the proceedings leading up to the issuance of the deed should be indulged to support the validity of the deed. (Nagle v. Tieperman, 74 Kan. 53, 85 Pac. 941, 88 Pac. 969; Penrose v. Cooper, 71 Kan. 725, 81 Pac. 489, 84 Pac. 115; Gibson v. Trisler, 73 Kan. 397, 85 Pac. 413; Carson v. Platt, 76 Kan. 636, 92 Pac. 705.) Following these decisions, the judgment of the district court is affirmed. | [
-12,
-10,
-44,
-4,
122,
-64,
42,
-103,
88,
-95,
-96,
91,
109,
-126,
20,
61,
-93,
127,
81,
104,
-58,
-77,
55,
35,
-76,
-77,
-53,
-35,
-67,
-51,
-10,
-42,
76,
36,
-54,
-107,
102,
-30,
-51,
80,
-50,
-123,
-87,
77,
-35,
64,
52,
43,
34,
73,
117,
-114,
-13,
44,
61,
67,
104,
40,
73,
59,
-47,
-72,
-66,
-99,
127,
7,
-79,
102,
-34,
-127,
-56,
-118,
-104,
53,
-128,
-24,
123,
-74,
-122,
-4,
13,
-117,
40,
36,
102,
17,
85,
-1,
-8,
-104,
14,
-2,
-99,
-26,
86,
88,
-77,
64,
-66,
-99,
109,
80,
7,
118,
-25,
5,
29,
108,
13,
-54,
-42,
-109,
-113,
124,
-120,
67,
-33,
11,
48,
113,
-51,
-22,
92,
101,
58,
-101,
-49,
-40
]
|
Per Curiam:
The contract introduced in evidence over the plaintiff’s objection corroborated the defendant’s testimony. All other matters discussed depend upon what the facts were. The facts were found generally by the trial court adversely to the plaintiff upon conflicting oral testimony, and under the well-known rule this court cannot interfere.
The judgment of the district court is affirmed. | [
-80,
104,
-84,
-19,
10,
32,
48,
-102,
-51,
35,
119,
83,
127,
82,
20,
55,
-74,
121,
81,
98,
87,
-77,
54,
65,
-9,
-109,
-5,
93,
-75,
-1,
-11,
28,
76,
56,
-32,
-43,
98,
-127,
-27,
18,
-50,
-109,
-68,
104,
-103,
114,
52,
63,
112,
31,
33,
-42,
-13,
42,
17,
-57,
-23,
60,
110,
33,
80,
81,
-106,
-115,
109,
5,
-77,
36,
-100,
14,
-40,
4,
80,
-71,
3,
-8,
114,
-106,
6,
-108,
9,
-101,
8,
114,
102,
32,
104,
-49,
60,
-100,
39,
127,
-113,
-90,
-101,
72,
72,
73,
-74,
-3,
117,
80,
-81,
98,
-28,
84,
30,
100,
27,
-113,
-106,
-93,
31,
-4,
-102,
71,
-25,
83,
21,
68,
-49,
58,
84,
-60,
27,
-109,
-65,
-66
]
|
Per Curiam:
Did the plaintiff convey the real estate involved in this controversy to defendant under an agreement, express or implied, that the latter would hold it in trust for the former? Upon this, the controlling question in the case, the burden was upon plaintiff. The testimony of the parties was conflicting, and upon what appears to be sufficient evidence the trial court found in favor of the- defendant. This finding is conclusive in this court, and is an end of the controversy.
The judgment is affirmed. | [
-13,
122,
-28,
44,
74,
-96,
56,
-72,
97,
-89,
119,
81,
47,
-54,
20,
37,
-10,
123,
-47,
107,
-41,
-78,
7,
-45,
-16,
-13,
-14,
69,
-75,
-52,
-25,
93,
76,
57,
-64,
-43,
98,
-125,
-11,
80,
78,
-107,
-86,
100,
-55,
112,
52,
59,
80,
74,
65,
-49,
-13,
41,
25,
71,
73,
62,
107,
49,
-47,
120,
-97,
13,
111,
15,
19,
52,
-100,
10,
-54,
12,
-112,
117,
1,
-24,
115,
-74,
6,
116,
9,
-101,
-88,
-94,
102,
32,
105,
-1,
-80,
-100,
46,
125,
-113,
-90,
-13,
88,
-119,
106,
-74,
-33,
117,
32,
38,
118,
-28,
28,
30,
108,
15,
-81,
-106,
-79,
-81,
124,
-102,
66,
-49,
83,
48,
0,
-51,
48,
92,
64,
56,
-37,
-114,
-74
]
|
Per Curiam:
The error complained of in this case is that the court sustained a demurrer to the evidence. The petition in error was not filed until more than one year after the demurrer was sustained, and it is therefore too late to review the alleged error in this proceeding. (White v. Railway Co., 74 Kan. 778, 88 Pac. 54; Corum v. Hubbard, 69 Kan. 608, 77 Pac. 530; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591; Railway Co. v. Murphy, 75 Kan. 707, 90 Pac. 290.)
No motion for a new trial was necessary, and the filing of such motion did not have the effect to extend the time for making and serving a case or applying for an extension of the time allowed by the statute. (White v. Railway Co., 74 Kan. 778, 88 Pac. 54; Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299.)
The motion to dismiss is therefore allowed. | [
84,
122,
-68,
-99,
-118,
97,
48,
-118,
65,
-63,
39,
115,
-83,
-126,
-108,
125,
99,
47,
113,
107,
70,
-109,
87,
98,
-46,
-106,
81,
-43,
-75,
-49,
-20,
-42,
76,
48,
-53,
-75,
101,
-56,
73,
92,
-114,
-124,
-103,
-20,
113,
40,
48,
105,
84,
15,
49,
-34,
-29,
-86,
24,
-57,
9,
46,
-19,
41,
-48,
-7,
-110,
5,
127,
20,
33,
20,
-102,
-122,
72,
62,
0,
49,
27,
-20,
114,
-74,
-57,
-108,
97,
-39,
12,
98,
98,
33,
-51,
111,
-104,
56,
54,
27,
13,
-89,
-72,
24,
75,
47,
-73,
-99,
52,
20,
39,
-18,
-18,
-124,
17,
44,
2,
-118,
-78,
-77,
-65,
108,
6,
3,
-6,
-91,
16,
17,
-59,
-30,
92,
7,
59,
-69,
-50,
-97
]
|
The opinion of the court was delivered by
Benson, J.:
The appellant was convicted of arson in the third degree. He complains of the insufficiency of the information, that the court erred in the admission of evidence and in the giving of instructions, and challenges the sufficiency of the evidence to prove his guilt.
The information charges that the defendant “did then and there wilfully, wrongfully, unlawfully, knowingly, and feloniously, in the night-time, set fire to, and cause to be burned, the livery-barn belonging to one B. H. Toothman.” It is argued that this information is defective because it does not contain an allegation that the burning was malicious. The statutory definition of arson in the third degree is: “Every person who shall wilfully set fire to or burn . . . shall on conviction be adjudged guilty of arson in the third degree.” (Gen. Stat. 1901, § 2046.) The information is sufficient. (The State v. Jessup, 42 Kan. 422, 22 Pac. 627; The State v. Douglas, 53 Kan. 669, 37 Pac. 172; The State v. Shinn, 68 Kan. 638, 66 Pac. 650; The State v. Fooks, 29 Kan. 425.)
Nor did the court err in failing to define “malice,” although arson at the common law is the malicious burning of the house of another. If the act was done wilfully, unlawfully,, and feloniously, it was done maliciously. “Maliciously” is the equivalent of “wrongfully, intentionally, and without just cause or excuse,” as ordinarily employed in criminal statutes, (The State v. Boies, 68 Kan. 167, 74 Pac. 630.) The court properly instructed the jury that “wilfully” meant the doing of the act purposely and intentionally, not accidentally, and stated all the elements of the crime.
A witness was allowed to testify that the appellant told , him that he had burned a hotel, and also a dwelling-house. The same witness testified that the appellant proposed to him to burn the barn in question, and the theory of the prosecution was that the relation, of previous conversations showing how like criminal purposes had been carried out was competent to characterize and lead up to the proposal for burning the barn in question. The witness was fully examined and cross-examined as to both conversations, thus giving the jury an opportunity to find what connection, if any, there was between them, and to determine the real significance of the proposal made to the witness and its bearing upon the issue.
A witness called by the appellant, whom he had known nearly all his lifetime, was asked whether the appellant had ever said anything to him about burning the barn. The state objected, but the witness was allowed to answer that he had not. Thereupon the question was asked: “Did he ever at any time say anything to you in regard to burning any other property?” The answer was: “No, sir.” He further testified that he had never talked with Defenbaugh, appellant’s codefendant, about such burning before it occurred. On cross-examination the following questions were asked and answers given:
“Ques. You say you never had any conversation with Mr. Ross about the buildings that had been burned down there in Havana ? Ans. No, sir.
“Q. How many different buildings have been burned there? A. Well, now, I will have to count; I can’t give it accurate. I will say there was about eight or nine; I don’t know just how many.
“Q. About eight or nine in that little village? A. Yes, sir. In what time do you mean — all the time that I have known it?
“Q. That is what I was asking you. During the last five years, how many have you heard of being burned? A. Well, I guess that number would about cover it; I don’t know.
“Q. About nine have been burned there inside of the last five years? A. Yes, sir.
“Q. And you never have had any conversation with Ross about any of them? A. No, sir; I have not.
“Q. What buildings have been burned there? A. Mr. Pendleton’s warehouse and store, and Mr. Fralic’s hotel, and Mr. Pendleton’s barn, and I forget this man’s name down there now — he had a store burned, and Joe Nelsch’s shop, and Ross Blair’s store, and Mr. King’s house, and the Chance hotel.
“Q. Two hotels and two or three different stores; each one of them was burned at separate times, was it? A. No, a lot of them burned in a string one night.
“Q. A lot of them. How many do you call a lot? A. Three or four of them. There was a blacksmith shop—
“Q. What else? A. Well, there was what was known as the — I can’t call the man’s name now; started in there. He works in this bam here. And burnt Joe Nelsch’s shop and burnt the blacksmith shop and on down the line; and then Mr. Pendleton’s store burned, and then the warehouse, and the brick building added to the store building and a drug store.
“Q. How store and warehouse? A. Yes, sir.
“Q. In the same fire? A. No, I don’t think it was; I am not positive. It was none of my business, and I don’t just remember.
“Q. You don’t remember? A. No, I think Mr. Pen dleton’s store and warehouse burned at the same time; I am not positive.
“Q. Where was the store located with reference to the warehouse? A. Well, the store was west of the warehouse.
“Q. How far west? A. I don’t know. About as far as from here to this—
“Q. You say they were burned the same night? A. Yes, sir.
“Q. Were these two hotels burned, the same night? A. No, sir.
“Q. They were different fires? A. I don’t remember just how those -buildings all burned, but I think there was two or three burned at a time, or three or four, something like that.
“Q. How.many different fires have there been set? Have all of the fires burned buildings there? A. Now, then, I have n’t got them down. I don’t take dates. I have n’t lived in town; but there has been several.”
Objections that this was not proper cross-examination and that the testimony was incompetent were made and overruled. It must be remembered that a witness for the state had testified that the appellant had admitted to him that he had burned some of the buildings referred to in these questions, and it should be further noted that this witness had just been asked on direct examination whether the appellant had ever said anything to him about burning other buildings. This cross-examination called his attention to specific fires, and led to the inquiry whether the witness had talked with the appellant about any of them. Having stated generally that he had had no conversation about any fires, it was permissible on cross-examination to call his attention in this manner to particular instances. While the cross-examination was searching and pushed to great length on this collateral matter, we, cannot say that the court exceeded a proper discretion in admitting it. The question on direct examination which provoked this line of cross-examination was of doubtful propriety; but, having secured a favorable ruling thereon, the appellant cannot complain that the recol lection and credibility of the witness were pretty thoroughly tested. In such a situation the latitude allowed in cross-examination must depend on the circumstances of the case, and necessarily rests largely in the discretion of the trial court. (Bassett v. Glass, 65 Kan. 500, 70 Pac. 336; The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406.)
Complaint is also made that the court allowed conversations with the codefendant, Defenbaugh, to be testified to. As Defenbaugh was on trial for the same offense the testimony could not have been excluded, and in the instructions the court stated to the jury that such testimony was incompetent as against the other defendant unless they found that the two defendants were acting together, pursuant to a conspiracy, when such conversation occurred — stating at length the rule in such cases.
Complaint is also made that two of the defendant’s witnesses were arrested upon the order of the court in the presence of the jury, at the close of defendant’s evidence, to his prejudice. The testimony tended to show misconduct on the part of the witnesses, and such probable participation in an effort to defeat justice in the case as to induce the court to take this action. While such arrest, when necessary to the ends of justice, ought to be made in the absence of the jury, we are unable to say from the record that there was an abuse of judicial discretion or that it prejudiced the substantial rights of the appellant.
It is insisted that upon all the evidence there was no proof that the fire was of criminal origin, and that the evidence was insufficient to sustain the verdict. The testimony is quite voluminous. There was the fact of the fire, and the negative testimony of the employees and others about the barn. There was also proof showing the presence of appellant and Defenbaugh on the road and near the scene of the fire late that night. Added to this and other attendant circumstances were the positive statements of witnesses of the threats of the appellant, and of the admissions of Defenbaugh. True, the jury did not convict Defenbaugh, but there was evidence tending to show the guilt of the appellant that did not apply to his codefendant. One witness testified that appellant asked him whether his father’s barn would not rent better if Toothman’s barn was out of the way, and whether if it was burned Toothman would leave town, and whether it would be a good way to get rid of it to put a match in the window in the manger. This was two months before the fire. Another witness testified that appellant said he knew a plan to get the Toothman barn out of the way, and asked the witness what he would give to have it put out of the way; that he knew a fellow that would do the work; and wanted to know what he (the witness) would do if he should see the barn on fire in the night. There was also the testimony of the witness, before referred to, who swore that appellant proposed to him that if he would bum the barn he would surrender a note he held'against him. Testimony was also given tending to show the payment by appellant to a witness of $25 to testify to a supposed conversation implicating another party in the crime. The defendant Defenbaugh was with appellant late on the night of the fire, and near the place. The explanation of the appellant of his presence on the road that night was of a doubtful nature. His conversation with a witness after the fire also indicated his knowledge of its origin. The testimony, if it is to be believed, shows a singular recklessness, not only of conduct but of conversations, threats and admissions, and challenges careful scrutiny; but its weight and credibility were for the jury. If true, it certainly supports the verdict. Having been found to be true by the jury, and approved by the trial court, its sufficiency cannot be successfully controverted here.
Criticism is made because the instructions did not charge the jury that the presumption was that the fire was not criminal and that appellant could not be con victed on his threats alone, and that there was an omission of some other negative propositions. No requests for further instructions were-made, and those given fairly covered all matters of law necessary for. the information of the jury. (Crim. Code, § 236; Gen. Stat. 1901, § 5681.) Where the general charge fairly presents the case to the jury a party who desires an instruction upon some particular question should request it, and cannot be heard to complain of the omission if he has not done so. (The State v. Pfefferle, 36 Kan. 90, 12 Pac. 406.)
Finding no error in the record prejudicial to the substantial rights of the appellant, the judgment is affirmed. | [
-28,
-22,
-51,
-65,
8,
96,
42,
88,
65,
-91,
-74,
83,
-17,
-54,
-123,
47,
-74,
105,
80,
57,
-44,
-77,
23,
67,
-78,
-69,
83,
-59,
-71,
75,
-10,
92,
72,
48,
-54,
125,
38,
72,
-57,
84,
-118,
-115,
-88,
64,
-62,
10,
52,
59,
70,
11,
113,
62,
-13,
42,
29,
-61,
9,
40,
74,
-83,
97,
-72,
-104,
15,
89,
2,
-93,
38,
-68,
7,
104,
44,
-40,
53,
0,
-20,
115,
-76,
-124,
-12,
79,
-119,
9,
102,
98,
33,
13,
-17,
104,
-119,
47,
55,
-99,
-89,
-104,
72,
91,
40,
-97,
-99,
52,
112,
14,
104,
-25,
28,
29,
108,
1,
-49,
-108,
-9,
-55,
60,
-112,
-13,
-5,
-89,
-127,
113,
-51,
-26,
84,
64,
80,
-101,
-116,
-99
]
|
The opinion of the court was delivered by
Benson, J.:
This action is again before this court for review. (Modem Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, 2 L. R. A., n. s., 809.) On the second trial additional evidence was heard, and the plaintiffs, Joseph Gerdom and wife, again recovered. The defendant insists that the evidence is still insufficient, and asks for a reversál.
The evidence shows that John B. Gerdom, an unmarried mari about thirty years of age, working in a newspaper office at Topeka, and residing with his parents in that city, left his home on October 14, 1895, to go to California. He was a member of the defendant society, which had issued to him a benefit certificate in 1890, which was payable to his parents, the plaintiffs, and which was in full force. Soon after leaving his home he wrote to his father from Denver, Colo., and on October 22 he wrote another letter, at Oakland, Cal., and wrote again on the 29th of that month. These letters indicated dissatisfaction, and a desire to return to his home. Later, in November and December of that year, he wrote letters to his sister at home, saying that he liked the country better and would remain a while. His last letter was dated December 15, 1895, giving his address as Oakland, care of the Oakland Tribune. He was then at work in the office of that paper. This was the last word from John B. Gerdom received by any member of his family.
Inquiry was made of some of his friends and associates, but no information was received. On August 22, 1896, the father wrote to the Tribune, at Oakland, Cal., inquiring about his son, and was informed that he left the employment of that paper in February of that year for Stockton, Cal., accompanied by a boy from the same office, and that this boy, who had returned, reported that Gerdom had gone on to Merced, in that state, but had told the boy that he intended returning to Kansas City. The writer added that he could find no one at Oakland who had heard of Gerdom since. The deposition of the writer was taken confirming the information contained in the letter; also stating that the boy referred to had quit the service of that paper, and that it was reported in the office that he had been killed, and that the witness had read a newspaper report of .his death. The testimony of newspaper men at Merced was also taken tending to show that Gerdom had not worked in any printing office there and was unknown to the people engaged in that business. Inquiry was also made at the principal newspaper offices in Kansas City, but no information was obtained of his presence in that city at any time. The family consisted of four children besides John, all adults, and the father and mother. Two of these reside in Kansas City.. On consultation the members of the family residing in Topeka were informed by those in Kansas City that they had not seen or heard of John since he left Topeka.
The defendant society published, in 1904, an advertisement for the missing man in the Modern Woodmen, a paper having a circulation in the United States of 700,000 copies, giving a description of Gerdom, with his picture, and offering a reward of $50 for information that would lead to his being found. The general attorney for the Woodmen, who caused the publication of this notice, testified that Gerdom had not been found, but that information had been received that he was seen in California within two years preceding the trial. This paper was mailed to every member of the order, nearly 700,000, of which number over 8000 resided in California, nearly 300 of whom lived in Oakland, and 55 in Merced.
All assessments upon the benefit certificate were duly paid, and Gerdom was in good standing in this order when the claim of the plaintiffs was presented and rejected. This action was then commenced upon the certificate.
The defendant demurred to the evidence. The de murrer was overruled, and judgment rendered for plaintiffs, the defendant having elected to stand upon the demurrer.
The law applicable to the facts of this case was thus stated on the former hearing:
“In order that the presumption that a person once shown to have been alive continues to live may be overcome by the presumption of death arising from seven years’ unexplained absence from home or place of residence, there must be a lack of information concerning the absentee on the part of those likely to hear from him, after diligent inquiry.
“The inquiry should extend to all those places where information is likely to be obtained, and to all those persons who in the ordinary course of events would be likely to receive tidings if the party were alive, whether members of his family or not; and in general the inquiry should exhaust all patent sources of information, and all others which the circumstances of the case suggest.” (Modern Woodmen v. Gerdom, 72 Kan. 391 [syllabus], 82 Pac. 1100, 2 L. R. A., n. s., 809.)
The evidence shows the unexplained absence of John B. Gerdom for more than seven years, and that inquiry was made at the place where he was last seen, and where he was at work; also at the place to which he said he was about to go, and of people who- were engaged in the business in which he sought and obtained employment while at home and in California. These inquiries were extended to Kansas City, and to the offices of newspapers there, where a person of that vocation would likely seek employment. No tidings were obtained. By the expenditure of more money, and by greater zeal, the investigation might have been extended. Thus inquiry might have been made of members of his lodge, as suggested. Taking into consideration, however, the notoriety of this case, tried twice as it was, it can hardly be supposed that if such knowledge had been available it would have been withheld for so long a time. In view of the fraternal bonds uniting the members of such an order, and their in terest in each other, as well as in the order itself, the failure of the defendant after a systematic effort and for so long a time to find this man is quite significant. Probably all efforts that would ordinarily be suggested, however 'painstaking or exhaustive, would still leave some source of information unexplored. The parents should only be held to the exercise of reasonable diligence in endeavoring to obtain tidings of their son. They were not required to prove conclusively that he was dead, but were bound to produce such evidence as would fairly lead to the presumption of his death.
While the officer of the society who caused the offer of reward to be made testified that he had been informed that Gerdom had been seen within the last two years in California, the fact that the efforts to obtain further information — undertaken, we must presume, in entire good faith — were unavailing tends to the conclusion that the informant was mistaken. Both the parties appear to have been alike unsuccessful in their quest.
We are entirely satisfied with the rules of law stated by Mr. Justice Burch on the former hearing, as illustrated and applied in that opinion, and followed in Renard v. Bennett, 76 Kan. 848, 93 Pac. 261. Considerable additional testimony of the nature there suggested was furnished. The lapse of time since that trial, and the notoriety naturally incident to this prolonged litigation, without tidings of the man, were proper matters to be considered by the trial court in determining whether death should be presumed. On a demurrer to the evidence every propitious fact which it fairly supports is accepted as proved, and every favorable inference which may be fairly deduced must be indulged. (Hoffmeier v. Railroad Co., 68 Kan. 831, 75 Pac. 1117.) Measuring the evidence by this standard, we cannot say that it did not tend to prove the facts from which the court might fairly presume that death had occurred. In other words, we cannot say that the evidence, liberally considered, as it must be upon demurrer, was insufficient to warrant the presumption of death.
The judgment is affirmed. | [
112,
-24,
-3,
-97,
42,
-32,
46,
-40,
126,
-15,
-90,
119,
-55,
-101,
13,
45,
122,
45,
-44,
107,
-58,
-109,
86,
-85,
-46,
-13,
-13,
-43,
113,
108,
62,
92,
79,
48,
-118,
-43,
102,
64,
-57,
20,
-50,
5,
9,
-18,
83,
80,
52,
121,
36,
11,
117,
-98,
-13,
42,
30,
-45,
41,
44,
107,
-71,
-112,
121,
-70,
-121,
-83,
6,
35,
22,
-104,
-123,
-56,
63,
16,
-107,
0,
-24,
51,
-76,
-122,
-12,
97,
-119,
44,
118,
98,
33,
-107,
-27,
-88,
8,
47,
-77,
-99,
39,
-107,
32,
3,
101,
-106,
-71,
51,
48,
2,
122,
-13,
29,
21,
-84,
0,
-113,
-90,
-93,
31,
42,
-100,
-101,
-21,
39,
36,
116,
-39,
34,
93,
71,
114,
-71,
-113,
-80
]
|
Per Curiam:
The defendant in error was a section-hand in ' the employment of the plaintiff in error, at the station of Kensington, in Smith county. The company had a pump-house and well there in charge of H. L. Worley. On December 31, 1902, Worley had occasion to be absent and requested Joseph Giroux, who was the section-boss, to look after the pump-house, build a fire, sweep out, and see that everything was all right. Morrill was directed by Giroux to do this. Worley had also requested him to do so whenever he was away. Morrill went to the pump-house as directed, and before leaving lifted a trap-door and looked down in the well to see if everything was right. He heard a noise which he thought might be escaping steam. The well was sixty feet deep, and about twenty feet across. It was provided with ladders so constructed that the pumper could descend into the well to examine the pipes, which he did every day. Morrill went down to ascertain the cause of the noise, and the ladder gave way and he fell on a cross-timber and was injured. On August 3, 1903, he commenced this action in the Smith county district court, where he recovered a judgment for $2000, on September 12, 1905. The railway company brings the case here.
It' is claimed that the plaintiff, when injured, was not engaged at work which he was employed by the company to do and therefore he has no cause of action against it. It is also claimed that no negligence on the part of the company was shown. Numerous other questions have been presented, but they are all involved in these two. The only evidence on the subject shows that the plaintiff was sent to the pump-house to look after things and see that they were all right by the pumper, Worley, and the section-boss, Giroux, who were authorized by the company to do so. It is also amply shown that the structure by which descent was made in the well had been erected some fifteen years before, and was thoroughly decayed and rotten. It did not appear that it had ever been inspected. The decayed condition was not apparent from the upper surface of the timbers, but was easily seen by a casual look at the under side. The jury by their general verdict found that the company was negligent. We are unable to. find error, and the judgment is affirmed. | [
-16,
120,
-56,
-97,
-88,
-31,
42,
-102,
69,
-95,
-25,
83,
-17,
-127,
24,
107,
-61,
63,
-11,
27,
-26,
-93,
23,
99,
-46,
-45,
113,
-59,
-74,
109,
-12,
-41,
76,
48,
-54,
-107,
-25,
64,
-59,
-36,
-114,
36,
-23,
-32,
-39,
32,
48,
95,
20,
79,
49,
-114,
-14,
42,
28,
-61,
41,
60,
-17,
-69,
80,
-16,
-126,
-123,
79,
0,
-96,
70,
-106,
7,
-40,
62,
-102,
53,
16,
-68,
114,
-74,
-126,
117,
1,
-87,
8,
98,
98,
33,
29,
-17,
-24,
-120,
31,
-66,
-115,
-89,
-108,
0,
-85,
45,
-65,
-99,
116,
84,
6,
122,
-20,
-59,
91,
60,
-127,
-113,
-74,
-47,
-113,
46,
-100,
-77,
-21,
3,
52,
116,
-35,
-86,
92,
6,
115,
-97,
-113,
-99
]
|
Per Curiam:
Plaintiffs in error first ask to amend the case-made, and affidavits are presented pro and con upon this motion. The affidavit of the trial judge is to the effect that the record is correct as it-stands. It is for the trial judge to certify the case-made to this court, and in no event could we allow an amendment thereto, even with his consent. It may not be’ inappropriate to add, however, that nothing in the showing made in support of the motion leads this court to doubt that the proceedings were as represented by the trial judge. Indeed, the controversy over the question of fact is more apparent than real.
The other errors complained of are all, save one, trial errors alleged to have occurred and to which no exception' was taken at the time. They cannot be considered.
The one assignment which we can consider is the finding of the court that there was a valid lien, amounting to $1399.47, which sum the plaintiffs in error were by the terms of their contract bound to discharge. This finding is in accordance with the express provision of the bond given by the plaintiffs in error, as contractors, to the defendants in error.
We find no error in the proceedings of the court. The ‘ judgment is therefore affirmed. | [
112,
108,
-15,
-1,
-56,
32,
32,
-118,
-35,
-127,
-89,
83,
-83,
-54,
20,
119,
-15,
121,
97,
115,
95,
35,
39,
67,
-10,
-78,
-13,
85,
49,
111,
-14,
-100,
76,
48,
-30,
-43,
102,
-126,
-43,
84,
-50,
-121,
-120,
-27,
-39,
96,
112,
55,
64,
15,
113,
94,
-13,
40,
-111,
67,
-23,
40,
107,
121,
-63,
-8,
-107,
-115,
79,
5,
-79,
53,
30,
78,
-40,
32,
-108,
53,
3,
-8,
50,
-74,
6,
118,
33,
-69,
40,
102,
98,
1,
-35,
-17,
-68,
-68,
55,
-66,
13,
-90,
-109,
72,
-53,
13,
-74,
-3,
116,
16,
38,
62,
-26,
20,
29,
108,
3,
-53,
-46,
-77,
45,
118,
56,
-125,
-17,
-125,
-112,
97,
-55,
-32,
92,
70,
25,
-13,
-113,
-66
]
|
Per Curiam:
The defendants are correct in stating that the-proper solution of the. questions involved depends upon the view which the trial court entertained respecting the' facts. The first, proposition stated in the plaintiff’s brief is one of law, and is. correct. But the question of fact underlying it is, Did the defendants suffer damage? This question depends upon how the-defendants made their prices. The plaintiff claimed prices were-made without the defendants’ knowing how the flour was to be packed. The defendants introduced abundant evidence to the-contrary. The court believed the defendants, and that is an end of the question of fact.
The plaintiff points out certain facts and circumstances which he claims conflict with the defendants’ evidence. Very well. It was the province of the trier of facts to settle such disputes, and its finding is conclusive here.
There is no merit in the contention that the defendants were negligent or that they estopped themselves from holding the-plaintiff responsible for the loss which he occasioned them. The facts are easily marshalled to demonstrate the soundness of the trial court’s views upon these questions.
The judgment of the district court is affirmed. | [
-14,
-20,
-3,
-83,
10,
96,
58,
-38,
69,
-95,
-89,
83,
-19,
-57,
-108,
37,
-73,
121,
-48,
106,
86,
-89,
3,
91,
-10,
-9,
-109,
-59,
-72,
-53,
-25,
-36,
76,
48,
-62,
-43,
99,
-62,
-59,
92,
-50,
-116,
-88,
107,
-7,
80,
52,
122,
82,
15,
113,
-68,
-13,
36,
-104,
-49,
9,
44,
107,
61,
-63,
-15,
-116,
15,
109,
7,
-109,
36,
-100,
102,
-40,
44,
-108,
57,
1,
-24,
115,
-76,
-58,
84,
41,
-87,
-120,
98,
102,
0,
77,
-20,
-68,
-116,
38,
-1,
15,
-89,
18,
64,
-55,
1,
-73,
-99,
116,
96,
38,
126,
-4,
21,
95,
109,
7,
-121,
-108,
-77,
-105,
100,
-68,
-29,
-53,
-125,
-102,
113,
-51,
-70,
93,
6,
26,
-101,
-98,
-65
]
|
The opinion of the court was delivered by
Johnston, C. J.:
In a suit brought by G. L. Finn against Stephen Parsons, Horace W. Howard and thirty-eight others to quiet the title of Finn, as against the defendants, to a tract of land, a service by publication was based upon the following affidavit:
“State of Kansas, County of Wichita, ss.
“W. B. Washington, being duly sworn, deposes and says that he is the duly authorized attorney for said plaintiff in the above-entitled action; said plaintiff has filed in said district court of Wichita county, Kansas, his petition against said defendants praying judgment against Stephen Parsons [here follows thirty-nine other names, including Horace W. Howard], quieting title in plaintiff G. L. Finn in and to the following-described lands, situated in the county of Wichita and state of Kansas, viz.: [Here follows the description of eighteen quarter-sections of land, including the one in controversy, properly described], said defendants may be barred and foreclosed of any right, title or interest in and to said premises.
“Affiant further says that all the defendants except F. H. Smith herein reside out of the state of Kansas; that plaintiff has made diligent effort to procure service of summons upon said defendants and that with such due diligence he is unable to make service of summons on said defendants within this state.
W. B. Washington.
“Subscribed and sworn to before me this 10th day of September, 1902. R. C. Garnes,
[seal.] Clerk of District Court .”
On this service judgment by default was rendered quieting the plaintiff’s title and excluding Horace W. Howard and the other defendants from any interest in the lands. Thereafter, and more than three years from the rendition of the judgment, Howard filed a motion to vacate the judgment, alleging that the court was without jurisdiction in the case because there was no legal publication made nor valid notice given to the defendants. On the hearing of the motion the court decided that the affidavit for service by publication was fatally defective, in that it failed to disclose that the action was one of those mentioned in section 72 of the code of civil procedure (Gen. Stat. 1901, § 4506),-and that ruling has been brought here for review.
Were the defects in the affidavit such as to deprive the court of jurisdiction and make the judgment that was rendered absolutely void? It is conceded that to obtain constructive service the requirements of the statute must be closely followed, and if there is a departure from the statutory procedure in some essential particular there can be no jurisdiction or valid judgment. If, however, there is informality or irregularity, but still not to the extent of making the process worthless, it would be a ground of error, and the judgment would be liable to be reversed or set aside, if action were seasonábly taken; but the judgment would not be absolutely void. (Entreken v. Howard, Adm’r, 16 Kan. 551; Harris v. Claflin, 36 Kan. 543, 13 Pac. 830.) The alleged defect in this instance is that the affidavit does not state the real nature of the action or show that it is one in which service by publication is permissible. It is argued, and correctly, too, that it is not enough to give a mere general statement of the character of the action. Such a service, if not set aside on motion, is subject to attack by petition in error, but will not necessarily be held void on collateral attack.
The case of Claypoole v. Houston, 12 Kan. 324, is cited to show that a statement in an affidavit that the action related to real estate and was one of those mentioned in section 72 of the code was defective and insufficient. That was held, however, in' a proceeding in error, which was brought directly to review a ruling on the sufficiency of the affidavit. In that case it was said that “such a service will be held valid when attacked collaterally (Armstrong v. Grant, 7 Kan. 285), but insufficient when attacked by a petition in error (Dutton v. Hobson, 7 Kan. 196).” (Page 327.) Another case cited is Railway Co. v. Stone, 60 Kan. 57, 55 Pac. 346, where there was a bare statement in the affidavit that the “cause is to quiet the title to real estate, as provided by section 72 of the code” (p. 58), and it was held that the failure to show the character of the action and the location of the land rendered the affidavit insufficient. The question, however, was raised on error, and the decision is therefore not an authority that such a service rendered the judgment absolutely void, where the attack is made years after the judgment was rendered. (Shippen v. Kimball, 47 Kan. 173, 27 Pac. 813.) It only illustrates the difference between a defective notice and no notice at all. The rule was stated in Harris v. Claflin, 36 Kan. 543, 13 Pac. 830, where it was said:
“If there is a total want of evidence upon a vital point in the affidavit for publication, the court acquires no jurisdiction by publication of the summons; but where there is not an entire omission to state some material fact, but,it is inferentially or insufficiently set forth, the proceedings are merely voidable.” (Syllabus.)
Within the rule of these cases the affidavit in the present one, wherein the judgment stood unassailed for more than three years, cannot be held to be fatally defective. As to the character of the action, the affidavit states that it was brought to quiet title in the plaintiff to certain lands, describing them in detail, and also that the defendants against whom the action had been brought might “be barred and foreclosed of any right, title or interest in and to said premises.” The statement “quieting title in plaintiff” to certain' lands is a phrase that is well, understood, and, while that phrase alone would be a meager and defective statement of a cause .of action, it is one which any person who is familiar with legal terms would not misunderstand. The affidavit in question, however, went much further in describing the nature óf the action. It recited that in plaintiff’s petition filed against the defendants he asked that the defendants be barred and foreclosed of any right, title or interest in the lands, and that was equivalent to a statement that he was seeking to have whatever interest or claim defendants might have in the land determined and held for naught and plaintiff’s title, as to them, quieted. In effect, he asked not only that his title be quieted but that the defendants be excluded from any title or interest in the land. It was certainly sufficient to meet the attack made in this instance (Dillon v. Heller, 39 Kan. 599, 18 Pac. 693), and, indeed, it would not be easy to say that the defect is such as to constitute error or render the judgment voidable. Much less can it be said that the defect renders the judgment absolutely void.
The judgment of the district court is reversed and the cause remanded for further proceedings. | [
-80,
110,
-24,
31,
8,
-24,
40,
24,
105,
-31,
-96,
83,
73,
-34,
5,
123,
-13,
13,
113,
105,
-28,
-75,
23,
-53,
-110,
-13,
-61,
-35,
-71,
93,
-10,
-42,
76,
32,
106,
87,
-58,
-56,
-59,
-100,
-114,
33,
9,
-4,
91,
-128,
52,
123,
20,
79,
17,
63,
-13,
104,
21,
67,
-84,
46,
-21,
-88,
65,
-16,
-102,
-97,
109,
0,
19,
4,
-104,
-125,
104,
-82,
-112,
17,
-95,
-20,
115,
-90,
22,
-12,
79,
-119,
41,
126,
106,
32,
53,
-85,
56,
-100,
15,
-66,
-99,
-26,
-78,
72,
97,
4,
-74,
-99,
113,
16,
7,
118,
-21,
4,
29,
108,
15,
-53,
-42,
-127,
15,
62,
-102,
19,
-5,
-121,
-96,
81,
-49,
-92,
124,
-57,
120,
27,
-113,
-72
]
|
Per Curiam:
The county attorney of Labette county broúght this suit in the name of the state perpetually to enjoin the defendant telephone company from constructing a telephone system in the city' of Parsons under a franchise which had been granted by the city for that purpose. A restraining order was granted by the probate judge, the district judge being absent from the county. Afterward, on motion, the restraining order was dissolved and an application for a temporary injunction refused by the district court. From this action of the court the case has been brought here by proceedings in error. The motion to dissolve reads:
“Comes now said defendant The Missouri & Kansas Telephone Company and moves the court to dissolve and set aside the restraining order heretofore granted herein, for the reason that the petition herein does not state facts sufficient to constitute a cause of action, nor facts sufficient to éntitle plaintiff to the relief therein prayed, or to any relief, and shows no right in said plaintiff to maintain this suit.”
The decision of the court reads:
“Now, on this 8th day of December, 1906, court being in regular session, this cause came regularly on for disposition and final order upon the motion of defendant The Missouri & Kansas Telephone Company to dissolve and set aside the restraining order heretofore, on the 29th day of October, 1906, by the probate judge of Labette county, Kansas, granted herein. And the court, having heretofore, to wit, on the 7th day of November, 1906, at chambers in the city of Independence,' Montgomery county, Kansas, heard the argument of counsel upon said motion, and being fully advised in the premises, finds that the plaintiff is not entitled to equitable relief or any relief by injunction, and that such restraining order should and ought to be dissolved and set aside. It is, therefore, by the court ordered that the restraining order heretofore granted herein as before set forth be, and a temporary injunction is, refused, the same is hereby dissolved, set aside and held for naught, to which order and ruling of the court in dissolving, setting aside and holding for naught said restraining order, and refusing said temporary injunction, plaintiff at the time duly excepted and excepts.” ■. ,
It is not clear whether this proceeding involved the sufficiency of the pleading merely, or also included the denial of a temporary injunction for want of a satisfactory showing of facts therefor. In view of the record, however, we conclude that both these questions were* considered. ,
Under the liberal rules followed in such cases thé petition, as against a general demurrer, was probably sufficient. There are some conclusions of fact contained in its allegations which are, perhaps, sufficiently broad, when considered in connection with the inference which may be drawn therefrom, to constitute a cause of action. (Long v. Thompson, 73 Kan. 76, 84 Pac. 552; Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; The State v. Addison, 76 Kan. 699, 92 Pac. 581.) The petition was verified and used as an affidavit in support of its averments as a pleading, and when considered as an affidavit an. entirely different rule applies. (Olmstead v. Koester, Treasurer, 14 Kan. 468.) In the case last cited Mr. Justice Brewer said:
“When a verified petition is used as an affidavit, its. allegations must be construed as those of an affidavit, and must be such'statements of fact as would be proper in the oral testimony of a witness. Allegations which are simply conclusions of law, whether sufficient or not as matter of pleading, are incompetent as testimony.
“A preliminary injunction is not a matter of strict, right; its issue rests with the sound discretion of the judge; and before one is issued there should be such a full showing of all the facts that the judge acts with a thorough understanding of the entire case.” (Syllabus.)
This verified petition was the only evidence presented in support of this application. In view of the weakness of the affidavit as evidence, and the large discretion lodged with the court in such cases, we are unable to say that the court erred in refusing to allow the temporary injunction.
The judgment of the district court is therefore affirmed. | [
-112,
-12,
-76,
93,
10,
-95,
50,
32,
81,
-77,
101,
83,
109,
-40,
-127,
127,
94,
41,
53,
121,
-31,
-73,
15,
9,
-46,
-45,
81,
-35,
-73,
-49,
-28,
-28,
72,
48,
10,
-43,
70,
64,
-59,
-100,
-50,
0,
-119,
-28,
-48,
-118,
-80,
107,
86,
71,
85,
-83,
-13,
43,
60,
-61,
-87,
44,
-37,
69,
-47,
-8,
-101,
87,
109,
6,
-79,
4,
24,
-89,
-56,
46,
-104,
57,
32,
-24,
83,
-74,
-122,
116,
7,
-39,
40,
114,
99,
3,
1,
-17,
-20,
-72,
15,
53,
-99,
38,
-108,
8,
107,
13,
-74,
-103,
116,
22,
-121,
126,
-1,
4,
31,
124,
10,
-114,
-44,
-109,
15,
126,
-98,
1,
-17,
-89,
32,
113,
-49,
-16,
94,
83,
56,
27,
-49,
-67
]
|
The opinion of the court was delivered by
Johnston, C. J.:
In an action brought by the Farmers and Merchants State Bank of Leonardville, Kansas, to recover on a promissory note executed by Otto Kurth and ten others, the bank in its petition set out the following copy of the instrument:
“$600. Riley, Kan., December 15, 1904.
“Jan. 1, 1906, after date, for value received, we jointly and severally promise to pay Robert Burgess and Thos. Lukyn, or bearer, six hundred dollars at the-, with interest at six per cent, per annum, interest payable annually, negotiable and payable without defalcation or discount.
Otto Kurth, Gustav Kurth,
Bernhard Pollman, Richard Meyer,
H. F. Fosha, T. E. Pierce,
P. A. Johnson, Henry Stonge,
William Keith, M. Swart.”
Edward Kieninger,
The note was indorsed on the back as follows:
“By cash T. E. Pierce, $5, five dollars.
By cash Hy. Stonge, $5, five dollars.
By cash M. Swart, $5, five dollars.
By cash Wm. Keith, $10, ten dollars.
Without recourse.
Robt. Burgess & Lukyn.
" Robert Burgess & Thos. Lukyn.!’
The defendants’ answer was, first, a general denial; second, an averment that before the note was executed and delivered the payees caused to be indorsed on the back of the note the following indorsements:
“By cash T. E. Pierce, $50.
“ “ Henry Stonge, $50.
“ “ M. Swart, $50.
“ “ Wm. Keith, $100.”
They also alleged that since the execution and delivery of the note the indorsements were so altered as to make it appear that Pierce, Stonge and Swart were each credited with only $5 and Keith with only $10/ and that these alterations were made without the knowledge or consent of the makers. The third defense was a denial of the execution of the note as set forth by the bank; and, fourth, a defense relating to the insurance of the horse for the price of which the note was given. There was a verification of so much of the answer as denied the execution of the note, but no specific denial of the indorsements on the back of the note.
At the opening of the trial it was admitted that each of the defendants signed the note in suit; and after proof had been offered by the. bank tending to show that it" purchased the note before maturity and without notice of any defenses, and that the note then bore the indorsements that are on it at present, the bank rested its case. The defendants then proposed to show that the indorsements had been altered, and that at the time Pierce, Stonge and Swart signed the note there were indorsements written on it crediting each of them with the payment of $50 and that when Keith signed it he was credited with the payment of $100. This testimony was refused,, the court ruling that the verification of the count denying the execution of the note was not a verified denial of the allegation of the execution' of the indorsements on the back of the note. The defendants then asked leave to amend their answer by verifying the count relating to the alteration of the indorsements, but the court held that it was not warranted in allowing the amendment, because of the lateness of the application and for the reason that the amendment would introduce a new defense. Exceptions to these rulings were taken and error is predicated on them.
Were the allegations as to the execution of the indorsements put in issue by the verified denial of the execution of the-note or did the indorsements stand admitted as pleaded ? It is alleged that the indorsements of credits on the back of the note were written there •contemporaneously with the signing of the note, by the persons to whom credits were given. Indorsements placed upon a note at the time of execution and before delivery which limit the obligation and qualify its operation become a substantial part of the instrument itself. The note did not rise to the rank of an obligation until it was delivered, and the makers are only bound by such conditions and obligations of the note as were written on it at the time of delivery. They had signed the note, it is true, but if the note executed was materially altered after execution it cannot be said to be the note which was executed. If the memoranda entered on the back of the note before delivery fixed the amount of the obligation which the makers were to pay, and the memoranda were altered so as to increase the obligation, it was no more the note of the makers than if the consideration named on the face of the instrument had been fraudulently changed and increased. The alleged indorsements reduced the amount named on the face of the note from $600 to $350, and these indorsements of credit qualified the instrument as effectively as if the consideration named on the face of the note had been changed. The alterations, therefore, affected the integrity of the note, and a verified denial of the execution of the instrument put its genuineness in issue and authorized the makers to show that the note which they signed was not the one in suit. The indorsement of a payment on the back of a note has been held to be a material alteration thereof, and of the effect of an indorsement made prior to a delivery it has been said:
“Generally speaking, every indorsement or memorandum attached to a writing, with the knowledge of the parties, at the time of its execution, is as much a part of such writing as .if it had been contained in the body of the instrument. Hence where a note has a memorandum or contract of this kind, which qualifies its terms, written upon or attached to it, the obliteration or severance of such memorandum or contract is a material alteration of the note.” (2 A. & E. Encycl. of L. 228.)
The force’ of words and memoranda on commercial paper is not to be determined by the part of the instrument upon which they may chance to be written. Daniel in his work on Negotiable Instruments says:
“It seems that the purport of the instrument is not only to be collected from ‘the four corners/ but from ‘the eight comers/ a memorandum on the back, affecting its operation, -being regarded the same as if written on its face.” (1 Dan. Neg.-Inst., 5th ed., § 151.)
The code provision affecting the question is that “in all actions, allegations of the execution of written instruments and indorsements thereon . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” (Civ. Code, § 108; Gen. Stat: 1901, § 4542.) The fact that the code mentions written instruments and the indorsements thereon separately, and the further fact that the memoranda in question were in form indorsements, is not controlling. Even if the entries on the note might have been treated as indorsements under the code provision, still, if in fact they are a part of the instrument itself, a denial of the execution of the instrument puts every part of the instrument, including the indorsements, in issue. If the memoranda on the back of the note were made when the note was made, and if they.limited its consideration and affected its operation and were intended as a part of the contract, they must be regarded as a substantive part of the note, and hence the testimony offered for the purpose of proving the alteration of these indorsements should have been received.
This is the conclusion of the court, but the writer is of the opinion that a specific denial of the indorsements was necessary to put their execution in issue. The ordinary meaning of the term “indorsement” is something written on the back of an instrument, like a deed or note. In one sense everything written on an instrument is a part of the instrument, and in one way or another every indorsement on a note affects the instrument, but that fact does not determine that an entry of credit on the back of a note is not a code indorsement. The code, aiming , at certainty, provides that the execution of indorsements, as well as the instruments upon which they are written, shall be taken as true unless denied under oath. In the view of the writer the entries of credits on the back of the note were indorsements within the meaning of the code. The note is complete in form without any indorsement, and since no date is attached to the indorsements it may be presumed that they were made after the delivery of the note. These indorsements were ordinary entries of credit, were no part of the body of the note, and were simply receipts for so much money. They are no more a part of the instrument than if the payee had signed separate receipts in favor of each of the four makers entitled to credit and had attached them to the note, and if that had been done it would hardly be contended that a denial of the execution of the note would put the execution of the receipts in issue.
The court, however, in view of the averment that the indorsements were made contemporaneously with the execution of the note and before its delivery, deems them to be a part of the note, and therefore concludes that the denial of the execution of the note put the indorsements in issue.
The judgment of the district court is therefore reversed and the cause remanded for a new trial.
Busch, Mason, Porter, Smith, Graves, Benson, JJ., concurring.
Johnston, C. J., dissenting. | [
-14,
100,
-16,
125,
-54,
96,
42,
-102,
81,
-95,
-74,
115,
-23,
-46,
21,
105,
-25,
61,
-48,
96,
-26,
-77,
54,
-34,
-62,
-13,
-23,
-35,
-79,
93,
-20,
-41,
76,
48,
-118,
21,
-26,
-62,
1,
-44,
-50,
9,
41,
68,
-35,
72,
48,
47,
22,
74,
113,
-1,
-13,
50,
21,
86,
109,
44,
-21,
45,
-64,
-79,
-70,
-123,
125,
22,
16,
18,
-104,
7,
-38,
46,
-104,
49,
-117,
-24,
118,
-90,
-122,
-12,
111,
25,
5,
-10,
98,
48,
-11,
-49,
124,
-100,
46,
-34,
-115,
-89,
-110,
88,
35,
37,
-98,
-99,
-106,
85,
7,
116,
-1,
21,
29,
104,
7,
-37,
-42,
-125,
63,
118,
-100,
11,
-33,
-95,
32,
113,
-121,
0,
93,
87,
122,
-101,
-114,
-79
]
|
The opinion of the court was delivered by
Benson, J.:
A former judgment in this action was reversed. (Betterment Co. v. Reeves, 73 Kan. 107, 84 Pac. 560.) Upon a new trial the plaintiff, John W. Reeves, again recovered, and this proceeding is brought by the company to review the proceedings upon the second trial.
The facts are fully stated in the former opinion. The negligence charged is, in brief, the failure of the company, engaged in furnishing gas, to place a regulator on its lateral line leading from its high-pressure main to the meter in. the factory where the plaintiff was working, thereby causing an explosion and resulting in personal injuries to the plaintiff.
Various errors are assigned. The first error complained of is the refusal of the court to allow a motion for further security for costs. 'This motion was first presented when the case was called for trial. There was no error in this ruling. The court in its discretion might well refuse to entertain such a motion at that time. Besides, the judgment being against the moving party, he is not prejudicially affected by such ruling. (Wilcox v. Byington, 36 Kan. 212, 12 Pac. 826.)
At the same time the defendant asked leave to amend its answer, but the nature of the proposed amendment was not shown nor any reason given why an earlier ap.plication had not been made. In these circumstances it does not appear that the refusal of the court to permit such amendment was erroneous. Such applications are made to the discretion of the court, and the reasons upon which they are asked ought to be frankly stated and the reasonable necessity thereof shown. To secure a reversal upon that ground it must affirmatively appear that the amendments refused were material and proper to be made. (Byington v. Comm’rs of Saline Co., 37 Kan. 654, 16 Pac. 105.)
The next complaint, and the one principally relied upon, is directed against the rulings of the court upon the evidence offered by the plaintiff. These objections to testimony may be resolved into two groups, or classes: First, to the testimony offered to show that plaintiff was a strong, able-bodied man, capable of doing regular manual labor, before the injury, and that he was infirm and his ability thus to labor was impaired after the injury; and, second, to the evidence of exclamations or utterances of pain given by the plaintiff at various times after the alleged injury.
The evidence tended to show that the plaintiff was thrown several feet by the explosion of the meter, and suffered an injury to his head and ear, affecting his general health, causing pain, and impairing his physical powers; and it was claimed that such injuries were permanent in their effects. To substantiate this claim his physical condition before the injury was shown by those who had the opportunity to know, as was the fact that he worked in toilsome occupations. His appearance before and after the injuries, as to health and strength, was also testified to. All this was objected to, but the evidence was properly received. Corporal appearances and conduct, as indicating health or the lack of it, are relevant, and such ordinary indications may be testified to by any competent person who was in a situation to know. The looks, appearance and conduct of a person, his ability to labor before and after an alleged injury, are ordinarily competent in determining the effect and extent of the hurt. (Wig. Ev. §§ 190, 223, 225, 568.) In many cases a witness, although not an expert, may be permitted to state the result of his observation, notwithstanding it involves in a sense his opinion or judgment, as to the apparent health of a person or other characteristic manifest to the apprehension of a common observer. (Robinson v. Exempt Fire Co., 103 Cal. 1, 36 Pac. 955, 24 L. R. A. 715, 42 Am. St. Rep. 93.) One who is in a situation to know may'testify to the fact whether another is competent to perform manual labor before and after an injury. (Lawson v. Conaway, 37 W. Va. 159, 16 S. E. 564, 18 L. R. A. 627, 38 Am. St. Rep. 17.) In Chicago City Ry. Co. v. Van Vleck, 143 Ill. 480, 32 N. E. 262, an action to recover for personal injuries suffered in a collision, the court said:
“It was one of the contentions of appellant at the trial that the permanent injuries for which appellee sought to recover damages in this suit were not occasioned by the collision under investigation, but were caused by being dragged while holding fast to the handrail of a street-car in 1877, ten years prior to the collision of August 2, 1887. In that connection many of the relatives, neighbors and acquaintances of appellee testified in regard to her . state of health, hearing, eyesight, ability to work and walk, and use her arms and legs naturally and without trouble, during the intervening ten years. Appellant objected to all testimony of this kind, and now insists that said witnesses were incompetent to testify in regard to such matters because they were not experts, physicians and surgeons. We think the objection is without merit, and untenable. We do not see why persons who were familiarly associated with appellee, and came in frequent contact with her, were not capable of knowing whether she was in good or bad health, whether her hearing was good and acute or otherwise, whether her eyesight was defective or not, whether or not she was lame, and whether she had the free and natural use of her hands or not, even though such persons were not scientific experts in matters relating to the human anatomy. In our opinion they were competent to testify to what they knew from their own personal observation.” (Page 485.)
The reasons for the “admission of such evidence are stated in volume .1 of the sixteenth edition of Greenleaf on Evidence, section 4416, and may be thus summarized: Experts may testify either from théir own knowledge of the person or matter, or from facts stated to them; other witnesses who have had the means of observation, and yet cannot adequately state all the data' so as to put the jury completely in the witness’s place, may give the result of their observations in matters of this character.
The defendant complains of the fact that such inquiries were extended over a considerable period of time. But it is claimed here that the disability continued, and the limits of time over which such evidence may range must depend on the circumstances of the case, as to the probability of intervening changes, and must ordinarily be left to the discretion of the trial judge. In this instance it does not appear that such discretion was unwisely exercised.
Numerous objections were made to testimony repeating the utterances and exclamations of the plaintiff indicating pain and suffering. On the former hearing the reversal was based on a ruling allowing a medical witness to give his opinion based partially upon the history of the case and partially upon his examination. Following the rule in A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 468, it was held that such evidence was inadmissible. In the opinion, however, it was said: “A physician may testify to the condition of the patient as he found him, whether suffering from pain, and to utter anees or exclamations of pain.” (73 Kan. 118.) The narrative or history of the case given by the patient and opinions based thereon are excluded, but his exclamations and utterances indicating present pain and suffering, in connection with his appearance and conduct, are properly received. Where exclamations and utterances appear to be the natural and spontaneous expressions of present pain or suffering, they may be testified to by a professional witness or by a layman who heard them and observed the manner and appearance of the person. In such circumstances they are sometimes characterized as verbal acts. They are outward signs of ah inward state, such expressions as usually and naturally accompany the feeling so revealed, and therefore competent for a jury to consider, with all the attendant circumstances. Where the bodily condition of a person is a relevant fact, exclamations of present pain or distress are competent circumstantial evidence of the existence of the particular bodily conditions. (16 Cyc. 1164.) The admissibility of such evidence is. not limited to the time or about the time of the injury. Concerning this it has been held:
“Where, however, it becomes important to illustrate the physical or mental condition of an individual, either at the time an injury is received, or from thence to the time of an inquiry as to its severity, effect and nature, we think expressions or declarations of present existing pain or malady, whether made at the time the injury is received, or subsequent to it, are admissible in evidence. . . . Expressions of present existing pain, and of its locality, are exceptions to the general rule which excludes hearsay evidence. They are admitted upon the ground of necessity, as being the only means of determining whether pain or suffering is endured by another. Whether feigned or not is a question for the jury.
“Such declarations and expressions are competent, regardless of the person to whom they are made. They are especially competent and of more weight when made to a physician for the purpose of receiving treatment, or to a medical expe*. ¡ who makes an examination at the request of the opposite party, or by the direction of a court, for the purpose of basing an opinion upon as to the physical situation of the person whose condition is the subject of inquiry.” (The Cleveland, Columbus, Cincinnati and Indianapolis R. R. Co. v. Newell, 104 Ind. 264, 269, 3 N. E. 836, 54 Am. Rep. 313.)
The rule under consideration was expressed by Mr. Justice Valentine thus:
“That whenever evidence is introduced tending to show a real injury or a real cause of suffering or pain, as in this case, the declarations of the party concerning such suffering or pain while it exists and as simply making known an existing fact should be allowed to go to the jury for what they are worth, and the jury in such a case should be allowed to weigh them and to determine their value.” (A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 782, 14 Pac. 237, 59 Am. Rep. 609.)
In applying this rule everything in the nature of a narrative of past experiences or suffering should be carefully excluded, and the evidence confined strictly to such complaints, expressions and exclamations as furnish evidence of present existing pain or malady. (Insurance Company v. Mosley, 75 U. S. 397, 19 L. Ed. 437; Wig. Ev. § 1718 and note.)
The plaintiff was asked as a witness what effect the injury had on the veins of his leg. This was objected to. If the question was improper, the ruling of the court was certainly correct. The ruling was: “He can describe the condition so far as he knows.” And the answer was a simple description of conditions.
A witness was asked: ’ “Do you know whether or not Mr. Reeves has been ailing, ... or what his general condition of health has been?” This was an unprofessional witness and the objection might properly have been sustained, especially to the last part of the question. On cross-examination the witness testified: “All I knew about his suffering was what he told me.” Thus the jury had, almost immediately after the answer was given, the confession óf the witness as to his only means of knowledge, and could weigh the evidence accordingly. The defendant did not move to strike out the former answer, as it might properly have done after the witness had disclosed his lack of personal knowledge. We do not say that it is necessary to move to strike out improper evidence given after a proper objection has been interposed, but where a witness appears to have sufficient knowledge of a fact inquired about, and is therefore permitted to answer, if it is afterward shown that he did not have such knowledge a motion should be made to strike out the answer, and thus call the attention of the court to the lack of information of the witness.
The superintendent of the gas-plant at Erie, who testified that he was familiar with the use of gas-meters such as that placed in the factory where it was alleged the injury occurred, was allowed to testify that a regulator was necessary upon the connecting line between the main and the meter. This was objected to on the ground that the question called for a conclusion. This was a matter not within the common knowledge of the jury, requiring peculiar knowledge and skill, and the witness appeared to be competent to give an opinion that would be helpful in arriving at the truth. No objection was made to the form of the question, and the opinion of the witness was in harmony with the allegations ,of the answer filed by the defendant, and so was not prejudicial. The answer alleged that “the plaintiff was expressly informed of the danger to persons, and the damage that might be occasioned to property, if the gas should be turned on before placing in such position such regulator.” The issue was not made as to the necessity of the regulator, but upon the warning given against operating without it.
It is not necessary to consider in further detail the numerous objections to evidence. The observations already made, we think, fairly cover all that need be referred to.
Another question is presented. The petition alleged that the defendant was a corporation “duly organized and licensed and is doing business under and by virtue of the laws of the state of Kansas.” The answer contained a general denial, and was verified. On the trial the plaintiff offered in evidence a certificate of the secretary of state that the defendant company, a West Virginia corporation, was authorized to do business in this state. The defendant objected to this, but the court received it in evidence. This ruling, however, was immaterial. The record shows that the court took judicial notice of such incorporation from the fact that upon a motion to set aside the service of summons in the action the defendant had filed an affidavit and a copy of its charter, thus proving that it was duly incorporated. Having thus proved its own corporate existence in such a proceeding in the action, the defendant cannot now properly complain of the insufficiency of the proof of that fact.
The judgment is affirmed. | [
-16,
-24,
-40,
-97,
10,
96,
42,
-38,
85,
-96,
-89,
115,
-19,
-33,
12,
47,
-6,
29,
-11,
123,
86,
-93,
23,
115,
-42,
-45,
-47,
-43,
-78,
111,
-10,
-3,
76,
32,
-54,
-107,
102,
-64,
-43,
84,
-50,
-124,
40,
-28,
-39,
0,
48,
104,
84,
11,
113,
-98,
-13,
42,
25,
-61,
105,
40,
107,
-83,
-45,
49,
-102,
5,
111,
4,
-95,
6,
-100,
-25,
-40,
62,
-100,
17,
1,
-24,
115,
-74,
-122,
-12,
43,
-101,
12,
98,
99,
33,
21,
-49,
-88,
-72,
63,
-113,
-115,
-89,
-48,
24,
-53,
1,
-106,
-67,
115,
38,
7,
126,
-2,
29,
95,
124,
1,
-117,
-76,
-79,
79,
104,
-104,
-125,
-21,
-125,
-108,
113,
-50,
-32,
93,
67,
83,
-101,
-113,
-98
]
|
.The opinion of the court was delivered by
Smith, J.:
It is first contended that, as sections 1302 and 1315 of the General Statutes of 1901 were repealed ,by chapter 152 of the Laws of 1903, no law existed imposing an obligation upon the plaintiffs in error, and no law existed providing any remedy for the enforcement of the obligation, if an obligation existed. Condensing the facts related, it will be observed that Burnham, Hanna, Munger & Co. commenced an action in July, 1894, against one Dixon to recover on an account, and that the Wichita Plumbing and Pump Company interpleaded in the action, having purchased the business and assumed the indebtedness of Dixon, and judgment was rendered against the Wichita Plumbing and Pump Company in October, 1900. In July, 1901, the B. & C. Pump Manufacturing Company having succeeded to all the property and rights of the Wichita Plumbing and Pump Company and having assumed and agreed to pay all its indebtedness, Burn-ham, Hanna, Munger & Co. commenced an action against the B. & C. Pump Manufacturing Company on their judgment, and recovered judgment therein against the last-named company in April, 1904. Prior to the commencement of the action against the B. & C. Pump Manufacturing Company, Charles and William Walterscheid became the owners of all the capital stock of the company, bought all its property and assets, and assumed all its liabilities. The action, however, of Burnham, Hanna, Munger & Co. against the B. & C. Pump Manufacturing Company continued pending until the 4th day of April, 1904, when they recovered judgment and soon thereafter had execution issued thereon, which was returned unsatisfied; and In September, 1904, the defendant in error was appointed receiver of the B. & C. company, and in November, 1904, was ordered to bring this action under section 1302 of the General Statutes of 1901.
The .controversy then depends upon whether the liability of the plaintiffs in error was an obligation imposed by the statute and expiring with' the statute or whether it was founded in contract and was beyond the power of the legislature to affect. The question was answered in Stocker v. Davidson, 74 Kan. 214, 86 Pac. 136, a portion of the syllabus of which reads:
“In this state the statutory liability of a stockholder to pay upon the debts of the corporation an amount in addition to his subscription equal to the par value of his stock becomes an asset of the corporation in the event of its insolvency; the liability is one arising upon contract; the right of action to enforce it is.one arising upon contract.”
The Stocker case proceeds to decide that the liability may be enforced by a trustee in bankruptcy under the bankruptcy act of the United States, and holds that a receiver is not necessary under the laws of the state. It does not, however, hold that a receiver.may not have the same rights as the trustee in bankruptcy, and as each is an arm of the court in collecting and converting the assets of the corporation into funds to pay its indebtedness it seems apparent that a receiver appointed under the laws of the state has the same rights and powers, so. far as is material to this case, as a trustee in bankruptcy. It is said in volume 26 of the American and English Encyclopaedia of Law, at page 746:
“The repeal of a statute has no effect on those rights and interests which have accrued under it, and which are past and closed; nor are any liabilities incurred under the repealed statute affected by the repeal, unless either they are released by the repealing statute, or the repeal includes the remedy of enforcing the liability.”
(See, also, Memphis v. United States, 97 U. S. 293, 24 L. Ed. 920.)
This court said, in Watkins v. Glenn, 55 Kan. 417, 40 Pac. 316:
“Any subsequent law of the state which so affects the remedy as substantially to impair and lessen the value of the contract is forbidden by article 1, section 10, of the constitution of the United States, which ordains that ‘no state shall . . . pass any . . . law impairing the obligation of contracts.’ ” (Syllabus.)
We therefore hold,' following the cases of Stocker v. Davidson and Watkins v. Glenn, supra, that, although the act of 1903 purported to repeal both the obligation and the remedy, that act was not operative as to this case. Not only did the obligation arise out of contract, but the remedy had been invoked under the statute before the repealing act was passed, and without the remedy the contract itself would be so far impaired as to be valueless. Neither the obligation nor the remedy is therefore affected by the repealing statute. A general saving clause, found in section 7342 of the General Statutes of 1901, seems also sufficient to sustain this construction. It reads:
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.”
Another contention of the plaintiffs in error is that this action at the commencement thereof was barred by the three-year statute of limitation. It will be observed that the liability of the Wichita Plumbing and Pump Company to Burnham, Hanna, Munger & Co. rested upon, and could only be ascertained by establishing, the liability of Dixon, and the liability of the B. & C. Pump Manufacturing Company depended upon the liability of the Wichita Plumbing and Pump Company, and the liability of the plaintiffs in error depended upon the liability of the B. & C. Pump Manufacturing Company. And, although it took years to establish these successive liabilities, it is not suggested that the proceedings were not carried on regularly, and only a short time intervened between the taking of the several steps necessary thereto. The judgment against .the Wichita Plumbing and Pump Company was obtained October 23, 1900, and the action against the B. & C. Pump Manufacturing Company was commenced about nine months thereafter and judgment was obtained on the 4th day of April, 1904. This action against the plaintiffs in error was commenced about seven months thereafter. So it seems that the successive steps to establish the liability of the plaintiffs in error were taken without unnecessary delay, it being conceded that the only remedy, if any remedy existed, was under section 1302 of the General Statutes of 1901. (Waller v. Hamer, 65 Kan. 168, 69 Pac. 185; Henley v. Stevenson, 67 Kan. 4, 72 Pac. 518. See, also, Weaver v. Haviland, 142 N. Y. 534, 37 N. E. 641, 40 Am. St. Rep. 631.)
Again, it is urged that the judgment rendered is not supported by facts, is not such a judgment as the law authorizes, and is contrary to law. It is conceded that the action should have been brought jointly against the plaintiffs in error, but it is urged that the judgment should have been rendered against each separately, in proportion to the amount of his stock; in other words, that under his double liability judgment should have been rendered against Charles Walterscheid for $12,600, and against William Walterscheid for $4850, whereas judgment was rendered against them jointly for about $400. There is no suggestion that there were any other creditors of the B. & C. Pump Manufacturing Company, or that it required any more than the amount of the judgment in favor of Burnham, Hanna, Munger & Co. entirely to close up the affairs of the B. & C. company. The plaintiffs in error do not seem to have been prejudiced because a much smaller judgment was rendered against the two jointly than might have been rendered, if the circumstances required it, against each severally.
The plaintiffs in error also complain against including in the judgment the amount of the receiver’s fees. These fees were proper costs of the action and there is no cause of complaint.
Finding no. error in the judgment or proceedings to the prejudice of the plaintiffs in error, the judgment is affirmed. | [
-12,
122,
-8,
-36,
24,
-32,
34,
-102,
89,
-96,
-91,
83,
-55,
-63,
5,
101,
-41,
57,
-15,
74,
-57,
-77,
7,
43,
-42,
19,
-103,
-59,
-79,
77,
-4,
-41,
76,
32,
74,
-35,
-26,
-128,
65,
-36,
-50,
0,
57,
-19,
-3,
0,
52,
107,
52,
73,
49,
-116,
-13,
43,
27,
79,
45,
62,
-21,
-67,
80,
-15,
-102,
-59,
111,
21,
33,
6,
-104,
69,
104,
-98,
-112,
17,
41,
-24,
114,
-90,
-122,
-11,
45,
41,
-88,
98,
98,
1,
17,
-21,
-40,
-104,
46,
-97,
-99,
-90,
-79,
88,
-93,
9,
-66,
-99,
116,
6,
-121,
-2,
-17,
-108,
-101,
60,
3,
-117,
-10,
-79,
-113,
110,
-104,
23,
-17,
-93,
48,
116,
-42,
-74,
93,
71,
122,
27,
-34,
-36
]
|
The opinion of the court was delivered by
Burch, J.:
This is the second appearance of this case here. The general facts are stated in Railway Co. v. Conlon, 62 Kan. 416, 63 Pac. 432. The propositions there considered and decided were the right to a farm crossing by virtue of adverse user and possession and from the necessity of the case. Before the second trial the pleadings were amended and the defendants tendered a single new issue — that the crossing was taken into consideration by the condemnation commission in making the original award of damages for the railroad right of way. At the second trial two questions were submitted to a jury. The court adopted the answers returned and made additional findings, so that the facts found are the following:
“ (1) Ques. About August, 1864, did the Atchison & Pike’s Peak Railroad Company, the grantor under condemnation proceedings of the plaintiff as to its right of way through the northeast quarter of section ten (10), township six (6), of range twenty (20), in Atchison county, Kansas, acquire by condemnation proceedings a right of way through the above-described land, then belonging to one J. W. Baldwin, the grantor of defendants’ ancestors, subject to said Baldwin’s right, and that of his grantees, to forever pass over the track of said railroad company at the point in question, with the assent of the said railway company, and did the commissioners appointed to award damages for the taking of the land comprising said right of way take such fact into consideration in assessing the amount of damages sustained by said Baldwin? Ans. Yes.
“(2) Q. Did said J. W. Baldwin go into possession of said right of way at the point in question under claim of right and ownership thereto and therein, and has he, and have his grantees and successors in interest thereto, openly, continuously, uninterruptedly, peaceably, exclusively and adversely to the claim of said Atchison & Pike’s Peak Railroad Company and its successors, and to all others claiming any right, title or interest therein, held possession of, and used the same, from about August, 1864, to the present time, subject, however, to the paramount rights of the said Atchison & Pike’s Peak Railroad Company, and those of the plaintiff? A. Yes.
“The court adopts the above findings of the jury, and in addition thereto finds as follows:
“ (3) That at the time of the condemnation proceedings of the right of way of the Atchison .& Pike’s Peak Railroad Company (now succeeded by the Central Branch Union Pacific Railroad Company) over the northeast quarter of section number ten (10), township six (6), of range twenty (20), in Atchison county, Kansas, in 1864, and before, one James W. Baldwin was the fee simple owner thereof, and also of the east half of the southeast quarter of section number three- (3), township number six (6), of range number twenty (20), in said county, which two tracts of land lay together, comprising one farm, which farm, including all rights they had to use the private way over and across said right of way of the Atchison & Pike’s Peak Railroad Company, said Baldwin and Melvina, his wife, sold and conveyed by deed of general warranty to- James Conlon, defendants’ ancestor, less twenty-two acres off the east side • of said northeast quarter, and twenty acres off the north end of said east half of the southeast quarter, in 1870, being two hundred (200) acres, more or less. Said deed contained the statement that ‘the right of way has been given to P. P. railroad company heretofore by said Baldwin.’ June 19, 1872, said James Conlon, and Anna, his wife, conveyed by deed of general warranty the same tract of two hundred (200) acres, including their right to cross said right of way at the point in question, to William Bowen, which deed contained the statement that ‘the right of way has been given to P. P. railroad company.’ July 26, 1872, said William Bowen, widower, by a similar conveyance deeded it back to said Anna Conlon, including his right to cross said right of way at the point in question. Since the Con-Ions bought said farm in 1870 it has remained in the-same compact form to the present time, devoted to agricultural purposes and the dairy business.
“(4) That across said farm a public highway, known as the ‘Monrovia road,’ runs, and has run since before 1864, in a westerly direction, and north of the highway about one hundred (100) feet, and nearly parallel thereto, runs the plaintiff’s railroad track, and north of that the Central Branch Union Pacific Railroad track, and still further north the railroad track of the Missouri Pacific Railroad Company; all of said tracks being nearly parallel to each other.
“The dwelling-house, barns and other outbuildings on said farm are located north of all said railroad tracks, and about seven hundred (700) feet north of said public highway. The said public highway divides said farm into two nearly equal parts, about one hundred acres north, and about one hundred acres south, thereof. The private way in question runs near the west line of said farm and nearly due north from the said public highway, which runs through the south half of said farm, to the said dwelling-house and other buildings located on the north half thereof, and crosses all of said railroad tracks.
“(5) That after said condemnation proceedings, in 1864, and after the Atchison & Pike’s Peak Railroad Company had laid its tracks across said farm, there was no way of reaching said public highway or any public highway, or the south half of said farm, with teams, wagons and other vehicles, farm implements, cattle and the like, used in operating said farm, except over and along said private way. Said way was established before 1864, and has remained in the same place ever since, and has been used by said Baldwin' and the said Conlons continuously (and many times a day in operating and carrying .on said farm since the first railroad track was laid across it. ■
“(6) That after the plaintiff fenced its right of way it placed a gate therein upon said private way, with the assent of the defendants, who made use of the gate in place of one some feet south thereof which had formerly been used to control their private way. No cattle, horses or other animals ever came upon the plaintiff’s track by or on account of said gate having been left open and unguarded, and no animals were ever killed or inj ured by reason of having strayed upon the track of plaintiff because said gate had been left open and unguarded when not in use.. Once while defendant was driving his cows from the pasture in the south half of said farm to the barn a number of them were killed by plaintiff’s train at the point in question. But upon the matter being litigated in the courts, it was determined that such killing was the result of plaintiff’s negligence.
“ (7) That the use of said private way at the point in dispute does not necessarily interfere with the efficient operation of plaintiff’s trains over its said railroad.”
Judgment was rendered for the defendants, and the plaintiff prosecutes error.
The plaintiff abstracts the pleadings, the instructions which it asked, the instructions given to the jury, and the findings of fact. The evidence is not abstracted, except as hereafter stated. Error is assigned in that the court refused to set aside the findings of the jury (findings numbered 1 and 2).
In the brief the assertion is made that the facts em braced in finding No. 2 are unsupported by any evidence. In opposition to this claim the defendants present no counter-abstract of evidence. Rule 10a of this court reads, in part, as follows:
“A party need not include in his abstract all the evidence in order to support a claim on his part that it does not show or tend to show a certain fact, but when such a question is presented the adverse party shall print so- much of the evidence as he claims to have that effect.”
The plaintiff has evidently prepared its abstract in strict accordance with this rule. The' jury found the specific fact of adverse user. The court adopted the finding, instead of setting it aside. The plaintiff claims it is unsupported by any evidence. Therefore the defendants should have abstracted such portions of the evidence as they claim support the finding. Having failed to do this, the plaintiff’s claim will be taken as confessed.
The reason for the rule quoted is obvious, and reaches backward to the reason for the statute which authorizes the court to require printed abstracts. (Gen. Stat. 1901, § 5021.) Under the'former practice the seven justices had before them for reference in the decision of causes only the original record and one copy. It was impossible that each justice should give to the record in each case the consideration which it deserved without having the material portions immediately accessible for his personal use. Besides this, hours of time that should have been devoted to the consideration of errors assigned were needlessly consumed in the laborious task of searching the record. Both of these serious impediments to the prompt and efficient decision of causes may be overcome by the preparation of proper abstracts and the printing of copies for all the members of the court.
Some of the general rules for the preparation of abstracts are stated in volume 3 of the Cyclopedia of Law and Procedure, at page 78:
“With regard to the matters properly included in an abstract of record it may be stated, as a general rule, that such abstract should be literally an abstract, or abridgment, of the record, containing only so much thereof as is necessary to a full understanding of the questions presented for review. It should be as brief as possible so long as all material matters are presented, and an abstract which does not comply with this rule to a sufficient extent to obviate the necessity of a resort to the record is insufficient. Whatever' is relied upon as error should be shown, and. an appellant’s abstract will, as against him, be deemed sufficiently full and accurate to present all of the errors on which he relies. The abstract should not, however, contain matters wholly immaterial and unnecessary in aiding the reviewing court to determine the appeal.”
Rule 10a is framed generally in accordance with these principles. Whenever the claim is made, as in this case, that the record contains no evidence showing or tending to show a particular fact, manifestly the theory of an abstract would be broken down if the party making the claim were obliged to print the evidence entire to show that it is well founded. In order that there may be an abstract there must be abridgment, and the court ought not to be compelled to read an unabridged record to ascertain the truth of a negative proposition of this character. The evidence upon which the opposing party relies will be familiar to him, and more than likely may be condensed into a few sentences or paragraphs, or at least into a few pages. It is but a slight burden upon him to print it; the court should have it gathered together and segregated from the rest of the evidence and should be'obliged to read no more.
It will be observed that the portion of the rule quoted speaks of “a certain fact.” Its application is obvious where it is claimed, for example, that evidence of a demand or of a notice is wanting. If, however, the general claim be made that a verdict or decision is unsupported by the evidence, and a consideration of the evidence is necessary to determine the question, the evidence must be abstracted by the party making the claim. For example, an appellant in a criminal case cannot throw upon the state the burden of abstracting the evidence by asserting there is no evidence tending to prove guilt. If a defendant against whom a judgment has been rendered in a personal-injury case should say there is no evidence to show negligence on his part he should abstract those portions of the evidence directed to that point. If he should say there is no evidence to show that he had any knowledge of the defect in the place'or the appliance causing the injury he may stand upon the assertion, and the adverse party should abstract such portions of the evidence as he contends show knowledge. If in consequence of a demurrer to the evidence or a motion for a peremptory instruction it be necessary to consider the evidence generally in order to determine its legal sufficiency, the party asserting its insufficiency must abstract it. But if the claimed defect lie in the failure to prove some certain fact essential to recovery the application of the rule made in the present controversy will govern.
In respect to the -first finding of fact the plaintiff does not say in set phrase that it is unsupported by the evidence, but goes a step further, states that the evidence given upon the disputed matter embraced in the finding is contrary to the finding, and gives a recital of the evidence upon the point.
The rule contemplates that the abstract shall be complete in itself. All portions of the record which require consideration as bearing upon the errors assigned should appear in the abstract; and in preparing the abstract the court prefers that the chronological order of the events in the case should be followed. If counsel deem it advisable for the purpose of strengthening or elucidating the argument in the brief to quote from the abstract there can be no objection, but portions of the matter which should appear in the abstract should not be reserved for the brief merely to avoid duplication. Since the adoption of the new rule many attorneys have conceived that it may be complied with in spirit by printing somewhere in the brief or in the abstract the essentials of the record. The court has been disposed to be lenient in' the matter while those members of the bar who are without previous experience in the preparation'of abstracts are familiarizing themselves with the practice. Following the suggestions here made a due observance of the proper form will be expected.
The claim that-a certain fact is not supported by evidence should be plainly made in the appropriate" subdivision of the brief and not casually or incidentally in connection with a running discussion. Neither opposing counsel nor the court should be left in any uncertainty respecting the position taken.
In the present case, although the foregoing suggestions relating to form have not been anticipated, the plaintiff has made its claim entirely clear. The summary of the evidence given was evidently intended to be regarded as a part of the statement of the plaintiff’s contention, and the defendants were fairly challenged to show evidence to support the finding. The defendants merely repeat several times that there is evidence in the record to support the finding. If so they should have exhibited it by a counter-abstract. Under the circumstances the court regards the evidence narrated in the plaintiff’s brief as all there is to sustain finding No. 1, and it is insufficient for that purpose. .
Without reference to any matter connected with the presentation of the present controversy, it may be remarked that it is the purpose of the court to decide causes upon abstracts and not upon records.
The court trusts the bar to aid it in the correct determination of causes presented for decision. This aid will not be supplied if the preparation of abstracts and 'counter-abstracts degenerates into a contest over how much can be suppressed or concealed. The rule opens no new field where sharp practice may be indulged. It should be the aim of every attorney for a plaintiff in error to make his abstract complete and correct as an abstract. If the question relate to the qualification of a juror or the competency of a witness a single answer or a few answers may apparently show disqualification or incompetency, when other answers clearly show the contrary. The cross-examination of a witness may modify statements in the direct examination. Evidence may qualify other evidence, and innumerable instances might be cited in which opportunity is afforded to' make a prima facie • showing in the original abstract which would mislead the court if not corrected by a counter-abstract. The attention of the court is distracted, its grasp of the question under consideration is weakened and its labor is greatly increased by the constant turning from abstract to counter-abstract. It is not fair to opposing counsel to oblige them to piece out the abstract; and if opposing counsel should neglect to prepare a sufficient counter-abstract, and the court should be overreached and led to a wrong decision because of an abstract fair in form but false in fact, the case might call for discipline. The language of the rule is plain and positive:
“The plaintiff in error or appellant shall prepare a printed abstract of the record, which shall reproduce such portions thereof as it is necessary to read in order to arrive at a full understanding of the questions presented for review.” (Rule 10a.)
Abstracts should be entitled in the cause, and should show, after the title, on whose behalf they are made. The introductory and connecting statements common to cases-made may be employed. Abstracts and counter-abstracts should conclude with the following statement: “The foregoing is a trite and correct abstract of the record in the above-entitled cause.” This statement should be signed individually by the attorneys preparing the abstract. Firm names are not permissible. (Rule 8.)
Whát has been said respecting the completeness of abstracts does not imply any modification of those parts of the rule respecting abridgment, condensation and the elimination of everything except matters of substance. Only that which is material should appear, and prolixity may render an abstract vulnerable to a motion to strike from the files. The lawyer who has not overcome the habit, once quite prevalent, of inserting in the case-made the precipe for summons and bond for costs, when the only question to be considered was whether special findings were conflicting, should carefully study the rule' before attempting to prepare an abstract. Frequently consultation between the attorneys for the respective parties may be possible and may result in producing the luminous but compendious brevity which should characterize an abstract. The court would be glad if the counter-abstract might soon disappear from its files.
Recurring to the case under consideration, the law announced in the former opinion precludes the right to a crossing from the necessity of the defendants’ situation disclosed by the findings of fact.
If upon another trial it should appear that the defendants have a right to a' crossing it does not follow that they have the unrestricted right to leave the crossing gates open. It is their duty to keep the gates closed when not in actual use. (Adams v. A. T. & S. F. Rld. Co., 46 Kan. 161, 26 Pac. 439.) For the protection of life and property which would otherwise be endangered the court should provide for the enforcement of this duty.
The judgment of the district court is reversed and the cause is remanded for a new trial. | [
-15,
106,
-75,
15,
-56,
104,
40,
-104,
105,
-77,
-90,
83,
-115,
-56,
1,
57,
-18,
31,
81,
43,
100,
-9,
87,
-29,
-46,
-13,
51,
-59,
53,
88,
102,
86,
77,
96,
11,
85,
-28,
-64,
77,
28,
-82,
-84,
-120,
-24,
-39,
-8,
60,
123,
84,
79,
81,
-117,
-13,
40,
28,
-29,
73,
46,
-21,
45,
81,
120,
-70,
71,
63,
2,
33,
36,
-100,
7,
-64,
63,
-104,
53,
25,
-56,
115,
-92,
-106,
-44,
9,
-103,
76,
-90,
103,
33,
21,
-17,
42,
-104,
46,
-35,
-117,
-25,
-88,
24,
-61,
37,
-97,
-99,
85,
6,
-121,
122,
-28,
5,
17,
124,
1,
-117,
-74,
-80,
71,
126,
-110,
7,
-37,
-127,
17,
112,
-52,
98,
93,
71,
56,
-101,
-113,
-68
]
|
Per Curiam:
This action was commenced by the plaintiffs in error in the district court of Neosho county on January 1, 1906, to recover damages and other relief on account of the fraudulent procurement of a conveyance of certain real estate. A general demurrer to the petition was sustained March 9, 1906, and a judgment in favor of the defendants in error was entered thereon. On April 26, 1906, George S. Wilson, one of the successful defendants in that action, who was in possession of the real estate in question and claimed to be the owner thereof, commenced a suit in the same court to quiet his title to the land. The plaintiffs in error were made parties defendant, and they filed an answer and cross-petition therein, which contained the same averments that were set out in their petition filed January 1, 1906, as before stated. On August 2, 1906, a reply to this answer and cross-petition was filed, which set up the judgment in the former case as a bar, alleging that it had not been reversed, vacated or modified, but had become final. On October 22, 1906, the petition in error in this case was filed to obtain a reversal of that judgment. On December 12, 1906, the suit to quiet title was tried in the district court, and the plaintiff therein, George S. Wilson, recovered a decree against the plaintiffs in error, which has become final, no proceedings having been taken to have the same reversed.
Upon these facts the'defendants in error have filed a motion in this case asking for a dismissal thereof. It is urged by them that all questions involved were finally decided in the suit to quiet title, and that nothing remains to be determined. More than a year having passed since the judgment was rendered, no proceedings in error can be had in the future.
This court has frequently held that it cannot consider and decide questions when it appears that any judgment it might render would be unavailing. (Ziegler v. Hyle, 45 Kan. 226, 25 Pac. 568; Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62; Parsons v. Tetirick, 63 Kan. 879, 64 Pac. 1028; Knight,v. Hirbour, 64 Kan. 563, 67 Pac. 1104; Crouse v. Nixon, 65 Kan. 843, 70 Pac. 885; Waters v. Garvin, 67 Kan. 855, 73 Pac. 902; Stibbens v. Telegraph Co., 69 Kan. 845, 76 Pac. 1130.) In the last-named case it was said:
“The duty of the court is to determine real controversies and to give judgments that are effective. It is not warranted in considering and deciding hypothetic questions or abstract propositions, or in laying down rules of law which cannot affect the matter in controversy between the parties.” (Page 845.)
In this case all the questions presented have been finally determined’ by a court of competent jurisdiction. The judgment is binding and conclusive upon all the parties interested. No decision of this court can affect any of these rights; it would, therefore, be useless to determine or consider the questions presented.
The plaintiffs in error insist that the petition in error was filed in this court before the final determination of the suit to quiet title, and, as the question of who should pay the costs which have accrued has not been disposd of, this court should determine the case on its merits for the purpose of ascertaining how the costs should be taxed. The case of Gross v. Shaffer, 29 Kan. 442, is cited in support of this contention. That case, however, is not different in principle from those above cited. A part of the original controversy remained undisposed of, which is shown by the fact that the case was reversed and remanded for a new trial. What is said in the opinion concerning costs, therefore, cannot be regarded as the sole reason for retaining the case for decision. If, in this case, it should be determined that the district court erred, there would be nothing relating to the controversy involved in the action for which a new trial could be awarded, nor could this court order a change or modification of the judgment in any respect which would affect the merits of the controversy. In this respect it differs materially from the case cited.
The subject-matter of the litigation here "is ended. There- is nothing concerning it left for determination.
The motion to dismiss is allowed. | [
-80,
100,
-12,
14,
-50,
-32,
40,
-114,
67,
-79,
-73,
83,
-19,
-38,
28,
61,
-30,
45,
113,
121,
71,
-74,
23,
-93,
82,
-109,
-45,
-43,
-67,
-51,
-12,
-124,
76,
48,
-54,
21,
66,
-128,
-123,
92,
-114,
4,
8,
68,
-39,
72,
52,
107,
82,
79,
49,
47,
-13,
43,
25,
67,
105,
40,
-49,
-87,
-15,
-8,
-97,
-123,
127,
6,
-95,
53,
-120,
-125,
72,
-102,
-112,
53,
11,
-24,
115,
-74,
-121,
117,
107,
-103,
41,
102,
98,
33,
109,
-17,
-16,
-104,
14,
-4,
13,
39,
-78,
72,
67,
33,
-66,
-99,
117,
16,
38,
-4,
-32,
-123,
25,
-24,
11,
-49,
-44,
-109,
-81,
58,
-120,
19,
-1,
-125,
48,
112,
-59,
-28,
94,
71,
113,
-101,
-114,
-16
]
|
The opinion of the court was delivered by
Porter, J.:
F. H. Holt brought an action in replevin to ^recover ten hogs, valued at $150, and eleven calves, valued at $55. His right to the possession of the property rests upon a chattel mortgage given by Louis H. Wiggin, dated April 5, 1904. Defendant F. P. Dickson claims the property by virtue of an attachment levied thereon by the sheriff of Shawnee county subsequent to the date of plaintiff’s mortgage.
The controversy is over the increase of the stock described in the mortgage. The mortgage includes seven brood-sows, nine cows and. heifers, and all the increase thereof. The defendants claim that plaintiff allowed the calves and pigs in controversy to remain in the possession of the mortgagor after the expiration of the natural weaning period and after they had ceased to follow their mothers, and that for this reason, as against an attaching creditor, the increase was no longer subject to the mortgage lien.
The jury found for defendants, and found the value of the property to be $180. In answer to special questions they found that the note secured by the mortgage was. due and unpaid; that the property in controversy was the increase of the stock mentioned in the mortgage; that the ten hogs were not littered at the time the mortgage was given, and were twenty months old when the action was begun; that the calves were born in the spring of 1905, and were from eight to eleven months old when the action was commenced. There was also a finding that the property in controversy was in the possession of the mortgagor at the time of the attachment, and that plaintiff had never taken possession of the same under his mortgage. Another finding was that all of the increase had passed the nurture period and were separated from their mothers. The plaintiff filed a motion for judgment on the special findings notwithstanding the general verdict. This was denied, arid judgment was rendered in favor of the defendants, which the plaintiff seeks by this proceeding to reverse.
The principal question "involved is whether the increase is subject to the lien of the mortgage notwithstanding the fact that the nurture period had passed and the animals had ceased to follow their mothers and were separated therefrom. In Corbin v. Kincaid, 33 Kan. 649, 7 Pac. 145, it was held that a mortgage on domestic animals which in terms covers the increase is valid as to the increase. The question of the duration of the mortgage lien was not involved. A chattel mortgage given upon a crop- after the seed sown has sprouted covers the grain, because the latter is an accession to what was already in' existence when the mortgage was given, and, by analogy to this doctrine, the increase of domestic animals conceived but unborn at the time the mortgage is given may be included therein. This rule is. recognized in volume 6 of the Cyclopedia of Law and Procedure, at page 1049, with the modification that “as against a purchaser without actual or constructive knowledge of the mortgage the lien does not continue after a suitable period of nurture has elapsed.” (To the same effect is Jones, Chat. Mort., 4th ed., § 149.) The authorities cited in support of the foregoing texts, so far as we have examined them, are cases in which the increase was not mentioned in the mortgage. The aúthorities quite generally sanction the rule that a mortgage on domestic animals covers the increase even though it is silent with reference thereto; and there may be reasonable grounds for holding .that where the mortgage is silent with reference to increase, and is given during the period of gestation, the lien should cover the increase only during the nurture period, but it is not necessary to decide that in this case. Some of the cases which restrict the lien to the nurture'period are: Forman, &c. v. Proctor, c&., 48 Ky. 124; Thorpe Bros. & Co. v. Cowles, 55 Iowa, 408, 7 N. W. 677; Kellogg v. Lovely, 46 Mich. 131, 8 N. W. 699, 41 Am. Rep. 151; Winter v. Landphere, 42 Iowa, 471; Darling v. Wilson, 60 N. H. 59, 49 Am. Rep. 305; Rogers & Dewey v. Highland et al., 69 Iowa, 504, 29 N. W. 429, 58 Am. Rep. 230; Rogers v. Gage, 59 Mo. App. 107. In Darling v. Wilson, supra the court said:
“There being nothing in the mortgage showing an intention to create a lien' upon the increase of stock mortgaged, the lien existing only as an incident to the mortgage would, as between the parties, continue so long only as is necessary for the suitable nurture of the increase. This view is supported upon sound principles.” (Page 60.)
In Funk v. Paul, 64 Wis. 35, 24 N. W. 419, 54 Am. Rep. 576, the view taken in Darling v. Wilson was criticized, and the court used this language:
■ “There would seem to be no valid reason for terminating the lien, as against the mortgagor, merely because the period of ‘suitable nurture’ had passed. Such nurture did not give the lien, and its termination could not take it away as against the mortgagor.” (Page 41.)
The increase was not mentioned in the mortgage, and the court, while holding the mortgage a valid lien thereon as between the parties, declared that it would not be valid as against bona fide purchasers without notice.
In the present case the mortgage in terms describes the increase, and, in our opinion, must be held a valid lien upon such increase as had an actual or potential existence when the mortgage was executed, and binding not only as to the parties themselves but as to third parties. There appears to be no reason why the lien should be restricted to the period • during which the young are following their mothers. The mortgage itself, by the mention of the increase, gives to subsequent purchasers and creditors sufficient notice to place them upon inquiry as to what animals the increase consists of. Cases of hardship frequently arise where live stock covered by a chattel mortgage have altered their appearance by growth, or have been removed to another county, and all' the notice which a bona fide purchaser may have that a mortgage is in existence affecting them is constructive notice.
The plaintiff argues that the mortgage, being good as between the parties, is valid as against an attaching creditor, for the reason, as he contends, that an attaching creditor is not an innocent purchaser and takes no better title than the attachment debtor had' at the time of the levy. The contention is opposed to the prior decisions of this court. For instance, a chattel mortgage unrecorded is good between the parties-. but absolutely void as against an attaching creditor of the mortgagor, where at the time of the” levy the mortgagee is not in the actual possession of the property. (Implement Co. v. Parlin & Orendorff Co., 51 Kan. 566, 38 Pac. 363, and cases cited.) The language of our statute is, in substance, that an unrecorded chattel mortgage, not accompanied by immediate delivery and followed by actual and continued change of possession, will be absolutely void as against the creditors of' the mortgagor and as against subsequent purchasers and mortgagees in good faith.
There is another principle of law which is not argued in the briefs which in our opinion has a vital bearing upon this case. The common-law doctrine that a chattel mortgage can only operate on property having an actual and potential existence at the time the mortgage is executed has often been recognized in previous decisions as the law in this state. Unless the property can be said to be in existence there is nothing for the mortgage to operate upon, and it is void. (Long v. Hines, 40 Kan. 216 and 220, 16 Pac. 339, 10 Am. St. Rep. 189 and 192, 19 Pac. 796.) So far as third persons are concerned, it can never be treated as a chattel mortgage. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612; Townsend v. Allen, 62 Kan. 311, 62 Pac. 1008, 52 L. R. A. 323, 84 Am. St. Rep. 388; Bank v. McIntosh, 72 Kan. 603, 84 Pac. 535.) Between the parties the mortgage may be valid, and if after the property comes into existence the mortgagee take possession he may hold it against the mortgagor or against third persons, as a pledge for the security of his debt. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612.)
The application of this rule to the case at bar demonstrates that, as to the calves which from the findings of the jury it appears could not have been in actual or potential existence at the time the mortgage was executed, the judgment is erroneous. The finding is that the calves were from eight to eleven months old at the time the action was’commenced — December 30, 1905. The oldest calves must have been dropped about the first of February, 1905. The date of the mortgage is April 5, 1904. The period of gestation in cows is about nine and one-half months. This leaves a margin of about ten days, which, it is true, is slight, but the burden rested upon the mortgagee to establish the fact that the increase was in actual or potential existence when the mortgage was executed. (Thorpe Bros. & Co. v. Cowles, 55 Iowa, 408, 7 N. W. 677.) The hogs were found to be twenty months old December 30, 1905. They were conceived, therefore, about December 30, 1903, several months prior to the date of the .mortgage, and being in potential existence, like a crop •of grain the seed of which has sprouted, were properly the subject of a mortgage lien.
The jury found the aggregate value of the hogs and •calves to be $180. The value of the calves apart from that of the hogs was not found, nor does the aggregate value of both as found by the jury correspond with the values alleged in the pleadings and affidavit. The judgment is therefore reversed and the cause remanded,, in^ order that the aggregate value of each may be ascertained, and the plaintiff will then be entitled to recover the value of the hogs and the defendant Dickinson the value of the calves. | [
113,
110,
-75,
47,
74,
96,
42,
-101,
67,
-95,
-74,
83,
77,
-45,
5,
97,
-58,
109,
65,
104,
-57,
-73,
119,
72,
-46,
-13,
-111,
-51,
-71,
77,
-91,
87,
77,
48,
66,
-35,
-30,
-94,
-63,
92,
-118,
-115,
25,
-19,
-35,
-64,
56,
111,
20,
74,
49,
-99,
-13,
42,
61,
-57,
41,
44,
123,
45,
-48,
-15,
-86,
-57,
79,
22,
-78,
102,
-100,
69,
74,
46,
-112,
113,
9,
-8,
115,
-76,
-122,
84,
13,
-119,
12,
102,
102,
19,
61,
-49,
124,
8,
110,
-33,
-115,
-90,
-112,
88,
3,
2,
-66,
-99,
118,
80,
7,
-2,
-25,
29,
-99,
108,
4,
-113,
-108,
-77,
15,
44,
-104,
11,
-13,
-89,
49,
113,
-115,
-30,
93,
71,
90,
-101,
-114,
-4
]
|
The opinion of the court was delivered by
Burch, J.:
E. 0. Faulkner brings this original proceeding in, mandamus to compel the Bank of Topeka to transfer to him on its books certain shares of its capital stock. The bank refuses to make the transfer because it claims a lien on the stock. The stock was owned formerly by C. J. Devlin, to whom was issued a certificate therefor in the following form:
“No. 449.' Shares $100 each. No. Shares 25. This is to certify that Chas. J. Devlin is entitled to twenty-five (25) shares of $100 each in the capital stock of the Bank of Topeka, Kansas, transferable at the bank only by himself or his attorney on the surrender of this certificate.
In witness whereof the seal of said bank is .hereunto affixed at Topeka this May 4, 1899.
J. R. Mulvane, President.
[seal.] J. W. Thurston, Cashier.”
Devlin assigned and delivered the’ certificate to the plaintiff as collateral security. Afterward Devlin became indebted to the bank in an amount equal to or greater than the present value of the stock. After this indebtedness had matured, and while it remained unpaid, the plaintiff demanded a transfer of the stock, which demand was refused for the reason stated.
The claim of the defendant is based upon the provisions of section 52 of chapter 47, Laws of 1897 (Gen. Stat. 1901, § 458), which reads as follows:
“The shares of stock of an incorporated bank shall be deemed personal property, and shall be transferred on the books of the bank in such manner as the bylaws thereof may direct; but no transfer of stock shall be valid against a bank so long as the registered holder thereof shall be liable as principal debtor, surety or otherwise to the bank for any debt which shall be due and unpaid, nor in such case shall any dividend, interest or profit be paid on such stock so long as such liabilities continue, but all such dividends, interests or profit shall be retained by the bank and applied to the discharge of such liabilities; and no stock shall be transferred on the books of any bank without the consent of the board of directors, where the registered holder thereof is in debt.to the bank for any matured and unpaid obligation; and no transfer of stock shall be made when the bank is in a failing condition, or when its capital is impaired. All transfers of stock shall be certified to the bank commissioner immediately.”
The decision of the controversy depends upon the interpretation to be given to this statute. In brief the claim of the plaintiff is that the statute does not apply to this transaction; that he became an innocent pledgee of the stock and vested with the legal and equitable title to it when Devlin was not indebted to the bank; that he then had a right to the transfer of the stock on the bank’s books; that the maturity and non-payment of subsequent loans made by the bank to Devlin could not affect this right; that Devlin ceased to be a “registered holder” when he pledged the stock to the plaintiff ; and that an enforcement of the lien would virtu ally accomplish a loan by the bank on the security of the stock, which is contrary to law.
A bank must at all times have a register of its stockholders. It must know who is entitled to vote its stock, who is entitled to receive dividends, who may be called upon for assessments, and, generally, who should bear the burdens and receive the benefits of stock ownership. Besides this, persons dealing with a bank have a direct interest in its personnel, and recurring events illustrate the fact that the state as a conservator of the public welfare has a legitimate concern in the matter. Therefore the law provides that when a bank is organized the president or cashier shall transmit to the bank commissioner of the state a verified statement showing the names and residences of its stockholders and the amount subscribed and paid in by each one. (Laws 1897, ch. 47, § 5; Gen. Stat. 1901, § 411.) After a bank has been organized and has been authorized to do business the same certainty and publicity are required. (Laws 1897, ch. 47, § 47; Gen. Stat. 1901, § 453.) True, shares of stock are personal property, and as such are transferable; but upon a change of ownership the transfer must be- made on the books of the bank, and must be certified immediately to the bank commissioner. The provision of section 52, quoted above, is that shares of stock “shall be transferred on the books of the bank.” Under the well-known canons of construction this means that nothing short of a transfer on the books of the bank will be sufficient. The only kind of transfer which can avail,, to affect the rights of the bank, its creditors and the-public, is a transfer on the books of the bank. None-other need be recognized.
From the provisions for a double record of the-ownership and transfer of stock, one in the bank and one in the office of the bank commissioner, it is plain who is indicated by the words “registered holder.” He-is the person shown by the books of the bank to be the-holder of stock. It is also plain that there must in all cases be a registered holder for every share of bank stock, and if a registered holder dispose of his stock he will continue to be the registered holder until the transfer is made on the books of the bank. An assignee of a registered holder who has not caused the transfer to be made on the books of the bank may be entitled to the rights of a registered holder as against his assignor, but the bank itself and creditors of the bank, ignorant of the assignment, may rely upon the record.
• On account of the relations of a bank to the business world, and the peculiar economic functions which it performs, it becomes necessary under certain circumstances to subordinate the rights of a stockholder to others which are paramount. Therefore the law provides that the double liability of the stockholder cannot be shifted by a transfer made when the bank is in a failing condition or when its capital is impaired. The funds which a bank loans are always largely the funds of depositors, and to protect them and other creditors a stockholder who is indebted to the bank upon a matured obligation is permitted to receive no interest, dividend or profit on his stock while default in payment continues, but all the earnings of his stock must be applied to the discharge of his liability to the bank; and to prevent an impairment of the bank’s assets, and to indemnify those most entitled to security against a depletion of its resources, it is further provided that no transfer of stock' shall be valid against the bank so long as the registered holder remains liable to it upon any matured and unpaid claim, and no transfer of stock shall be made upon the books of the bank without the consent of the board of directors when the registered holder is related to it as a debtor in default.
The foregoing analysis of the law and statement of some, and only some, of the obvious reasons upon which it is founded disclose that it is clearly applicable to the facts of the present controversy. Devlin was the registered holder of the shares when the certificate was presented for transfer. It is merely paltering with terms to say otherwise. The bank knew nothing of the plaintiff or his rights until that time. When the certificate was presented for a transfer of the shares on the books the registered holder was indebted to the bank upon matured and unpaid obligations. At that time the transfer to the plaintiff was invalid as against the bank, and it would have been a violation of the law to have made a transfer on the books without the consent of the board of directors. When the plaintiff became possessed of the stock he did not take the steps necessary to complete his title. The title he acquired was good only against Devlin. It was not the full legal title. It was subject to the springing into existence of a lien against it in favor of the bank consequent upon the conduct of the registered holder. To prevent a lien in favor of the bank from accruing the plaiiitiff should have made himself the registered holder. He was not innocent in the matter. He was charged with knowledge of the law, and the very terms of his certificate apprised him of the conditions upon which alone he could become a transferee as against the bank. Having negligently waited until circumstances had arisen under which the bank became entitled to statutory privileges granted for reasons of public policy, he must abide the consequences.
The argument that recognition of the bank’s lien contravenes the provisions of the statute forbidding loans by a bank on the security of its own stock has been met in the case of Battey v. Bank, 62 Kan. 384, 63 Pac. 437, the syllabus of which reads:
“While the officers of a state bank are prohibited from making loans or discounts to a stockholder on the security of stock in the bank, and while the bank cannot thereafter become the purchaser or holder of' loans on such stock, unless it shall become necessary to prevent loss on a debt previously contracted in good faith, yet, if a stockholder has become liable to the bank as principal, surety, or otherwise, on debts not incurred on such security, it will be entitled to a lien on his stock for such debts as are due and unpaid, and while such liability continues.”
Allowing for differences in statutes and states of fact the foregoing views are supported by the reasoning of the following, among other, decided cases: The Union Bank v. Laird, 15 U. S. *390, 4 L. Ed. 269; Reese & Fisher v. The Bank of Commerce, 14 Md. 271, 74 Am. Dec. 536; Brent v. The Bank of Washington, 35 U. S. 596, 9 L. Ed. 547; National Bank v. Watsontown, 105 U. S. 217, 221, 26 L. Ed. 1039; Michigan. Trust Co. v. State Bank, 111 Mich. 306, 69 N. W. 645; Citizens Bank v. Kalamazoo Co. Bank, 111 Mich. 313, 69 N. W. 663; Oakland Co. Savings Bank v. State Bank, 113 Mich. 284, 71 N. W. 453, 67 Am. St. Rep. 463; Peoples Bank v. Exchange Bank, 116 Ga. 820, 43 S. E. 269, 94 Am. St. Rep. 144; Hammond v. Hastings, 134 U. S. 401, 10 Sup. Ct. 727, 33 L. Ed. 960; Curtice v. Crawford County Bank, 110 Fed. 830.
Upon the face of the proceeding this appears to be a friendly suit (in perfectly good faith, however,) to obtain an interpretation of the statute in question. The defendant does not make the point that mandamus is not the proper remedy. Since in any event the writ must be denied the question may be left open.
The peremptory writ is denied. | [
118,
110,
-16,
92,
26,
96,
42,
-102,
97,
-96,
37,
115,
-55,
72,
5,
105,
-9,
13,
-15,
99,
-10,
-77,
7,
-55,
-46,
-77,
-47,
-51,
-79,
90,
-28,
-41,
77,
48,
-118,
-43,
-26,
-64,
-63,
28,
-50,
9,
40,
64,
-35,
8,
48,
59,
114,
75,
17,
-116,
-13,
32,
91,
-54,
73,
45,
-5,
-72,
81,
-72,
-117,
-123,
127,
18,
19,
0,
-104,
5,
-48,
46,
-104,
49,
9,
-24,
114,
-90,
6,
-44,
41,
-119,
9,
102,
99,
3,
53,
-17,
-68,
-88,
46,
-41,
-115,
-122,
-110,
88,
-127,
40,
-74,
-99,
-18,
16,
7,
-10,
-22,
20,
28,
108,
13,
-97,
-106,
-77,
15,
127,
-102,
23,
-37,
-93,
-80,
113,
-50,
-80,
93,
71,
122,
19,
-98,
-43
]
|
The opinion of the court was delivered by
Graves, J.:
Mary E. Robison, in an action commenced in the district court of Morris county, recovered a judgment against the city of White City for damages sustained on account of a defective sidewalk in such city. The jury in the case returned special findings of fact with the general verdict. The court, upon these findings of fact, set aside the verdict and entered judgment for costs in favor of the city. This action of the district court is assigned as error. The findings read:
“(1) Ques. Did the defendant exercise ordinary care to maintain said sidewalk in a reasonably safe condition, at the time and place in question, for ordinary and usual travel? Ans. No.
“(2) Q. At "the time and place in question was said sidewalk in a reasonably safe condition for ordinary and usual travel? A. No.
“(3) Q. If you should find that the sidewalk, at the time and place in question, was in a dangerous condition, state whether the defendant had either actual or constructive notice of any such condition. A. Not according to the evidence.
“ (4) Q. How many feet west of the Walnut street sidewalk was it where plaintiff claims to have received her injuries? A. About five feet.
“(5) Q. If plaintiff received any injury at the time and place she alleges, was such injury caused by the negligence of the defendant, or was it the result of an accident, without negligence upon the part of any one ? A. Yes, by defendant’s negligence.
“(6) Q- When the sidewalk in question was constructed, was it constructed with reasonably good and sufficient material and workmanship? A. Supposed to be.
“ (7) Q. If you find that said sidewalk was properly constructed, state whether or not the same was thereafter maintained in a reasonably safe condition for ordinary use and travel. A. Eyidence at that time showed it out of repair.
“(8) Q. Did the mayor or any of the officers have any notice that there was a loose board, if there was one, at the particular place and time where plaintiff alleges she stumbled? A. No evidence. '
“(9) Q. If you should answer the above question in the affirmative, then state what officer or officers had such notice and how or by whom they received the same. A. No evidence.
“(10) Q. If you should find that the sidewalk at the time and place in question was dangerously defective, state whether or not plaintiff had knowledge of its condition when she went upon it. A. Yes, she knew of its condition.
“(11) Q. If you should find that the sidewalk was dangerously defective at the time and place in question, state how long it had been in that condition. A. One to five weeks.”
Instructions were given by the court that should be considered in construing the findings of fact. They read: .
“You are. instructed that it is not necessary that the defendant city should have had actual notice of the unsafe and dangerous condition of the sidewalk (if you find that the sidewalk was unsafe) ; if you find that such condition of said sidewalk existed a sufficient length of time before the injury to have enabled the defendant city or its officers and agents, by the exercise of ordinary care and diligence, to have known of the existénce thereof, and remedied the same, then the law implies a notice to the defendant city of the existence of the condition.”
“If the city authorities, knowing that a sidewalk or crossing is defective or unsafe, or, after having had sufficient time in the exercise of reasonable diligence and ordinary care to discover and repair any defect in .the sidewalk, suffer it to remain in an unsafe condition, and if any person, while lawfully and in the exercise of ordinary care and prudence, passing over such sidewalk or crossing in such unsafe condition becomes injured by reason of such defect in the crossing, the city becomes liable in damages to the party injured.”
The special findings of fact, when interpreted, show that the sidewalk was defective, and had been so from one to five weeks before the injury. None of the officers of the city had any notice of such defect. Finding, No. 3 shows that the officers had neither actual nor constructive notice of the defect. If these findings be taken as they read, then the action of the court was proper.
We are asked to assume that the jury, notwithstanding the instructions of the court, did not distinguish between actual and constructive notice. We do not think such an assumption justifiable, in view of all that was stated in the court’s charge to the jury concerning the duty and liability of the city where a defect had existed long enough to give reasonable opportunity for discovery and to make repair. It is 'true the court did not use the words “constructive notice,” but the statement that the “law implies notice,” as used, amounts to the same thing.
We see no reason for not accepting the special findings for what they say, and therefore the judgment of the district court is affirmed. <> | [
-16,
120,
-44,
-116,
26,
96,
50,
-40,
81,
-127,
-11,
123,
-83,
-125,
28,
33,
63,
125,
-44,
43,
-63,
-93,
71,
-117,
-74,
-13,
-5,
85,
19,
124,
116,
124,
76,
48,
-54,
-107,
70,
75,
-41,
94,
-114,
-105,
8,
-52,
-47,
66,
36,
59,
34,
15,
117,
-99,
-29,
46,
24,
-61,
-23,
40,
75,
41,
83,
-79,
-116,
-107,
127,
6,
-77,
36,
-98,
-125,
-34,
24,
-112,
48,
0,
-24,
35,
-74,
-58,
84,
101,
-103,
-115,
98,
98,
33,
13,
111,
-8,
-99,
14,
126,
-83,
-89,
-101,
57,
73,
37,
-105,
-99,
125,
82,
102,
-24,
-2,
68,
89,
108,
11,
-118,
-48,
-79,
-49,
-80,
-110,
-47,
-49,
-125,
18,
113,
-116,
-22,
94,
-96,
18,
27,
-98,
-108
]
|
The opinion of the court was delivered by
Mason, J.:
In 1881 the owner of a tract of land conveyed to H. L. Simmons a life-estate therein, with the remainder in fee to the children of such life-tenant. On December 10, 1886, Simmons executed a quitclaim deed for the property to W. H. Layne, who on the same day gave him back a bond for a deed agreeing to re-convey upon the payment of $603.25. Layne at once took possession, which he and his grantees have held ever since. The land was sold for the taxes of 1884 to a stranger, who paid the taxes of 1885. Layne bought the tax-sale certificate after he had taken possession, and later paid the taxes of 1886 and 1887 and had them indorsed thereon. He received a tax deed upon this certificate in 1889. His title subsequently passed by mesne conveyances to John Wiswell. In 1906 H. L. Simmons died, and his children thereupon brought ejectment against Wiswell. The plaintiffs rested upon a showing of the facts above recited, which were agreed to. The defendant introduced oral evidence intended to show that the quitclaim deed from Simmons to Layne was executed as security for the payment of a debt, and therefore, with the bond for a deed, in effect constituted a mortgage. The court made no specific finding upon this issue, but rendered judgment for the plaintiffs, from which the defendant prosecutes error.
If the transaction between Simmons and Layne is regarded as a conveyance, the assignment of the tax-sale certificate to the latter operated merely as a redemption from the tax lien. For the owner of a life-estate is disqualified to take a tax title to the prejudice of the remainder-man, even although the taxes upon which it is based accrued before he acquired any interest in the land, at least in any case where they became due after the creation of the life-estate which he later obtained. This was expressly decided in Lohmuller v. Mosher, 74 Kan. 751, 87 Pac. 1140. There land was conveyed to Elizabeth Yambert for her life. She suffered the taxes to become delinquent, and one Durland obtained two tax deeds in consequence of such default. Later Elizabeth Yambert deeded to Laura E. Lohmuller, to whom Durland afterward quitclaimed. .The court said: “After Laura E. Lohmuller had purchased the life-estate in the land her acquisition of the Durland tax titles merely redeemed the land from taxes.” (Page 755.) The conclusion there announced was a necessary result of the application to the facts of that case of the general rule that a life-tenant cannot acquire an outstanding title or encumbrance for his sole benefit as against the remainder-man. (16 Cyc. 617, notes 23, 33.) This rule was applied to tax titles in Phelan and others v. Boylan and others, 25 Wis. 679, and in Defreese v. Lake, 109 Mich. 415, 67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584. (See, also, Crawford v. Meis, 123 Iowa, 610, 99 N. W. 186, 66 L. R. A. 154, 101 Am. St. Rep. 337.) In the Wisconsin case cited it was said:
“The complaint alleges, as matter of law, that it was the duty of the defendant to have redeemed the land by payment of the taxes. This may or may not have been so. If the tenant had chosen to let the land go for the taxes, so that valid title and possession would have been acquired by a stranger, thus forfeiting his life-estate as well as the inheritance, it is possible that the heirs would have had no ground of complaint or cause of action against him. The taxes having accrued before the life-estate arose or tenancy existed, it may be that the tenant was not chargeable, at all events, with the duty of paying them. But be this as it may, there exist other grounds here for holding that he shall take no advantage as against the reversioners of the title he has acquired. The taxes here were a charge upon the land, a lien, in fact, upon the life-estate of the tenant as well as the fee of the reversioners; and where that is the case a purchase by the tenant, or title acquired by him in pursuance of such charge, enures to the benefit of the reversioner as well as himself. The established doctrine is that a tenant for life in possession, in the purchase of an encumbrance upon the estate, is regarded as having made the purchase for the joint benefit of himself and the remainder-man or reversioner, and cannot hold it for his own exclusive benefit.” (Page 681.)
The effect of the decision in the Michigan case cited was thus stated in the sixth head-note prepared by the editors of the Lawyers’ Reports, Annotated:
“A devisee of a life-estate in remainder cannot cut off the remainders limited upon his life-estate by purchasing the property at tax sales caused by default of the first taker.” (32 L. R.'A. 744.)
It would be difficult to say that the quitclaim deed and bond to reconvey, considered alone, should be interpreted as a mortgage. That they bore the same date would doubtless justify regarding them as forming parts of the same transaction. But the prevailing rule seems to be that where the papers show upon their face a purchase and agreement for a resale there is no presumption that a mortgage was intended. It is so stated in volume 27 of the Cyclopedia of Law and Procedure, at page 970. Of the cases there cited the one in which the point is most fully discussed is Gassert v. Bogk, 7 Mont. 585, 19 Pac. 281, 1 L. R. A. 240. The decisions are there reviewed and the conclusion is reached that while the authorities are in conflict the majority support the text statement. In the opinion it was said:
“It will appear [by cases] hereinafter cited that the courts of last resort in Texas and Michigan, Illinois, Wisconsin, Indiana and Tennessee have held that a deed with a .contemporaneous contract to reconvey are not per se mortgages. '
“The third class of cases is that in which the courts hold that a deed with contract to reconvey are per se mortgages. This class includes the cases from Ver mont, Maine, Massachusetts, and Pennsylvania.” (Page 597.)
In this classification Michigan seems to be placed in the wrong category, for in Jeffery v. Hursh, 58 Mich. 246, 25 N. W. 176, 27 N. W. 7, it was said:
“It is now settled, as well as any principle of law can be, that an absolute deed, with a bond or separate defeasance or agreement executed at the same time to reconvey the estate upon payment of a certain sum of money, constitute a mortgage, if the instruments are of the same date, or are executed and delivered at the same time, and as one transaction; and when this is the case it is a conclusion of law that they constitute a legal mortgage.” (Page 257.)
The Montana case was affirmed by the United States supreme court. (Bogk v. Gassert, 149 U. S. 17, 13 Sup. Ct. 738, 37 L. Ed. 631. See, also, 1 Jones, Mort., 6th ed., § 247a.) In Pope v. Nichols, 61 Kan. 230, 59 Pac. 257, the inquiry being whether the contemporaneous execution by a grantee of a bond to reconvey gave notice to a third person that the transaction was intended as security for a debt, various grounds were suggested upon which such an inference might be drawn. In the present case the bond recited an agreement to. reconvey upon the payment of a note for $603.25 to one T. P. La Rue, but did not clearly show by whom such payment was to be made. It therefore failed to' disclose affirmatively the existence of a debt owing by Simmons. This omission, however, was supplied by the evidence. The defendant testified that the quitclaim deed was given as security for the payment of a note to La Rue, which he signed as surety for Simmons. In that case the transaction was in effect a mortgage, notwithstanding Layne went into immediate possession of the premises (Clark v. Landon, 90 Mich. 83, 51 N. W. 357) and had refused to áccept a mortgage, giving as a reason that he did not wish to be at the expense of a foreclosure in the event of a default. An instrument 'which is in form a deed is in effect a mortgage if it is intended as security for a debt which the grantor remains under an obligation to pay. The existence and continuance of a debt is the final test. (Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 585, and cases cited.) The fact that one or both of the parties may have had a wholly mistaken idea as to their respective rights under it cannot change its essential character.
Conceding the transaction between Simmons and Layne to have beén a mortgage, was Layne thereby disqualified to acquire a tax title against the remainder-men — the children of Simmons? This court is committed to the doctrine that the mere relation of mortgagee does not prevent the acquisition of a valid tax deed (McLaughlin v. Acom, 58 Kan. 514, 50 Pac. 441), although the rule is otherwise in many jurisdictions, perhaps in the greater number. (See 27 A. & E. Encycl. of L. 957, and dissenting opinion in Jones v. Black, 18 Okla. 344, 347, 88 Pac. 1052, 90 Pac. 422.) But the court has been careful to leave the question open with respect to a mortgagee who has possession of the property involved. Whether a mortgagee may ever assert a title under .a deed based upon taxes that accrued while he was enjoying the rents and profits, it is clear that Layne as the mortgagee of a life-interest in the occupancy of the property owed a duty to the remainder-men to pay at least the current taxes out of its income. In' this respect he stood upon no higher ground than the owner of the life-estate, out of whose, title his own interest had been carved. His rights-, with regard to taxes that had accrued or tax sales that had been made before he obtained possession need not now be determined. True, his tax deed was based upon a certificate that had been issued before he acquired any interest in the land, but after he had entered into possession, instead of paying the subsequently accruing taxes as one under an obligation to do so, he caused, them to be indorsed upon the certificate as an incre ment to the lien evidenced thereby. Therefore the consideration for the tax deed which he received was made up in part of taxes which accrued while he was in' possession and which he owed a duty to the remainder-men to pay. In such a situation the deed cannot be upheld against them as a conveyance of title in virtue of its being founded in part upon earlier taxes. For the purpose of determining his capacity to acquire a tax title the consideration cannot be apportioned— it must be treated as an entirety.- And a part of it being composed of taxes which he was bound .to pay, the transaction must be regarded as a redemption.
The defendant invokes the protection of the general statute of limitation and also of that relating to actions against claimants under tax deeds. The plaintiffs’ right of possession did not accrue until the death of their father terminated the life-estate. The general statute did not run against them while the defendant rightfully occupied the property, because while that situation existed no right to sue in ejectment could accrue to them. And even if in the absence of a special statute a remainder-man may ever bring an action against the life-tenant to settle the title and protect his interest, he cannot do so until his rights have been questioned or denied. Ordinarily one who takes a deed purporting to vest complete ownership in him may be deemed thereby to assert an absolute title, but here the recording of the tax deed by Layne did not convert his possession into an adverse holding against the children of Simmons, because he was disqualified to acquire a title by that means. This follows from what has been decided heretofore with regard to the statute of limitation enacted for the protection of claimants under tax sales.. Section 7680 of the General Statutes of 1901 provides that a proceeding for the recovery of lands sold for taxes must be brought within five years, and section 7682 that the recording of a tax deed shall be. deemed such an assertion of title as to enable the owner to maintain ejectment, but in the third paragraph of the syllabus in Woodman v. Davis, 32 Kan. 344, 4 Pac. 262, it was said of these sections:
“Where the objection to a tax deed goes, not to the proceedings, but to the power of the party to take the title, and such party is not in a position to take anything, neither the limitation in section 141 nor section 143 of chapter 107, Compiled Laws of 1879, has any application.”
The judgment is affirmed. | [
-10,
110,
-108,
61,
-104,
96,
42,
-71,
88,
-95,
37,
123,
73,
-46,
17,
105,
-15,
45,
113,
104,
-26,
-73,
23,
-77,
-46,
-13,
-47,
-52,
-75,
93,
-12,
-58,
76,
33,
-118,
21,
-26,
-54,
-59,
80,
14,
4,
10,
75,
-37,
64,
52,
111,
18,
11,
113,
-54,
-13,
43,
29,
-61,
41,
42,
-53,
-79,
-112,
-72,
-69,
-121,
95,
23,
17,
7,
-72,
-63,
104,
-120,
-104,
81,
-128,
-24,
55,
-90,
-42,
118,
29,
-119,
9,
102,
103,
48,
21,
-17,
-32,
-104,
46,
-105,
-99,
-89,
-110,
88,
-110,
104,
-66,
-99,
125,
70,
7,
116,
-18,
-124,
93,
108,
13,
-81,
-42,
-111,
-115,
120,
-124,
3,
-33,
7,
34,
112,
-50,
98,
92,
99,
112,
-101,
-113,
-2
]
|
The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Blue Rapids City Township to recover $229.60, with interest thereon, from the Electric Plaster Company, upon a contract between the township and the plaster company as well as two other companies not impleaded in this case. The contract recited in substance that these companies owned property on the Blue river, as well as certain proportions of the water-power provided by the river; that the flood of 1903 changed the channel of the river so as to render the water-power of the companies valueless, and also cut across an important highway which formed the approach to the Blue river bridge and which was absolutely essential to the convenience and welfare of the people of the township. It was further recited that as the township intended to call an election to vote $15,000 in bonds, at a rate of interest not exceeding five per cent., for the purpose of rebuilding the highway, and that as the highway would probably close the new channel and turn the course of the river into the old channel, and thus restore the water-power owned by the companies, it was stipulated that if the contemplated bond proposition should carry, and the bonds were issued and the highway rebuilt so as to restore the water-power, the companies, including the Electric Plaster Company, would pay the interest on the $15,000 of bonds for a period of ten years, each company paying its proportion based on the amount of power which it owned. There was a further stipulation that the interest when due should become a lien on the property of each company, and that if default were made in the payment of the interest the township might enforce the lien in the manner provided by law. The bonds were voted and issued, and the highway rebuilt in such a way, it is said, as to restore the water-power, but the Electric Plaster Company, when called upon to pay its share of the interest on the bonds, refused payment. The township brought this action, alleging the contract, the voting and issuance of the bonds in accordance with the contract, the expenditure of the $15,000 realized by the bonds in. rebuilding the highway, and that it was done in such a way as to turn the water back into its old channel and over the mill-dam, thus restoring the water-power and making the mill plant of defendant company usable and valuable, and that ever since the defendant has accepted, enjoyed and retained the benefits so obtained under the contract, but was attempting to repudiate the obligations of the contract.
The defendant answered that the contract was contrary to public policy, was without mutuality, and was therefore void. Another defense was that defendant was coerced into the execution of the contract by the refusal of the township to call an election for the voting of the bonds unless it would enter into the contract, thus putting the defendant in bad repute with the citizens of the township and its patrons in case of a refusal. It was further alleged that misrepresentations were made by the township as to the amount of money on hand which would be used to restore the highway, and it was also alleged that the township had failed to complete the highway or to restore the water-power as the contract provided.
After a number of rulings made in settling the pleadings the case was tried before a jury, and the principal question submitted to the jury was whether the crib-dam and the highway had been constructed by the township so as to turn the water back into the old channel and substantially restore the water-power as the contract required. There was a general verdict in favor of the township, and a number of rulings made on the pleadings and during the progress of the trial are assigned as error.
Upon a ruling as to the sufficiency of the petition the defendant company raises the question of the .validity of the contract. It is insisted that it was contrary to public policy for the township to contract with private parties providing that they should -.share in the expense of a public improvement, especially when the funds" of the township to carry out its part of the agreement were to be largely obtained by the voting of bonds. It is said that the agreement operated as a bribe and as an inducement for the electors to vote in favor of the bonds. It does not appear that the agreement in question formed any part of the proposition submitted to the electors of the township. By voting and issuing the bonds the township was made liable for the interest, as well as the principal, and the agreement of the companies only extended to* the repayment to the township,of the interest which it was bound to pay. There is nothing to show that the agreement was in any way an issue in that election. However, the bond election is not now in contest, and the result of it is not open to inquiry here. Besides, the agreement is not in its nature and effect inimical to the public welfare. No good reason has been advanced why the township and the defendant might not- cooperate in making the improvement. It subserved the interest of the township in restoring an important highway, alleged to be absolutely essential to the public convenience and welfare, and it also subserved the interest of the defendant and other owners of waterpower as an embankment which formed the highway and turned the water into the old channel and over the dam, thus restoring. the water-power. Each was a legitimate purpose, and neither is contrary to statute or in conflict with good morals. The defendant had a special and peculiar interest in the improvement, which formed a consideration for the contract and a justification for a division of the expense of the improvement. Contracts between municipal authorities and private parties which subordinate the public welfare to individual gain or which are against the public good are open to attack, but where they involve nothing inconsistent with good morals and sound policy no reason is seen why they may not be made.
It is not uncommon for individuals peculiarly benefited to unite with municipalities in making highways, digging drains, building bridges, and providing sites for schoolhouses and other public buildings. In the recent case of Cloud County v. Mitchell County, 75 Kan. 750, 90 Pac. 286, involving the maintenance of a bridge, it developed that the bridge had been constructed in part by contributions from private parties, but the validity of the arrangement was not questioned. In McClure v. Gulf Railroad Co., 9 Kan. 373, it was held that it was no offense against morals or public policy fqr citizens to enter into a contract with a railroad company to convey real estate to the company on the condition that it would build a railroad and locate a depot at a certain place. (See, also, Northern Kan. Town Co. v. Oswald, 18 Kan. 336.) On the other hand it has been determined that an agreement with a railroad company that it would not build .or maintain a depot within three miles of a certain point, regardless of public interest and eonvénience, tended to disable the company from the performance of its duty and was contrary to public policy. (St. Jos. & D. C. Rld. Co. v. Ryan, 11 Kan. 602, 15 Am. Rep. 357.) The same view was taken of a contract which restricted the location of a post-office to one place for individual benefit and personal gain. (Woodman v. Innes, 47 Kan. 26, 27 Pac. 125, 27 Am. St. Rep. 274.) We have an instance in this state where a town company donated a court-house and the block of ground on which it stood to a county upon the condition that the county-seat should be located there. (Yoxall v. Comm’rs of Osborne Co., 20 Kan. 581.) The legislature established the state normal school at Emporia, but imposed the condition that a site of twenty acres adjacent to Emporia should be donated and secured to the state. (Laws 1863, ch. 57.) In The State v. Elting, 29 Kan. 397, where the validity óf an election was involved, it was decided that the donation of property to a county by certain citizens of a town in case of the location of a county-seat at that town was not, of itself, improper or illegal.- In disposing of the case it was said:
“As it is no offense against morals or public policy for the citizens of a place to offer material inducements for the location of a railroad, neither is it for them to offer inducements for the location of a county-seat. The history of every state is full of instances in which the location of' a county-seat, a capital, or a public institution, has been sécured by the offer of material inducements, and no case have we been able to find in which such location has thereby been declared void. In the contest over our own state capital it is a well-known fact that the city of Topeka offered to donate the present state-house grounds if the capital were located here.” (Page 403.)
In Connecticut it was ruled that an agreement by owners of property fronting on a proposed street to indemnify the city for assuming the burdens of a new street was not contrary to public policy. (Townsend v. Hoyle, 20 Conn. 1.) In Stilson v. The Board of Commissioners of Lawrence County, 52 Ind. 213, it was determined that a promise of money upon the condition that the commissioners would bring the court-house back to the public square, from which it had been removed, was not antagonistic to public policy. Certain owners of property abutting on a street entered into a contract with a city, which was about to pave the street, providing that if the city would not disturb a row of trees in the middle of the street and would put curbstones around them for their protection they would pay the cost of the curbing, and it was held that the contract was legal and binding. (Springfield v. Harris, 107 Mass. 532.) In Dishon v. Smith, County Judge, 10 Iowa, 212, citizens of a town contesting for a county-seat offered to pay $500 toward the building of a bridge across a river, and also to contribúte certain real estate to the county, if the county-seat should be located at their town by a vote of the electors of the county, and it was held that it did not invalidate -the election. Judge Dillon, in discussing the question of public policy, after saying that any agreement to pay a corporation or its agents a premium for doing their duty or a contract which restrains or controls the judgment of public officers is invalid, remarked-:
“But a promise by individuals to pay a portion of the expenses of public improvements does not necessarily fall within this principle, and such a promise is not void as being against public policy; and if the promisors have a peculiar and local interest in the improvement, their promise is not void for want of consideration, and may be enforced against them.” (1 Dillon, Mun. Corp., 4th ed., § 458.)
(See, also, note to State of New Jersey v. Mayor of Orange, 54 N. J. Law, 111, in 14 L. R. A. 62.)
Besides a claim of a lack of power in the township to make the contract there is an additional contention that the promises between the parties lacked mutuality —that the township could not have been compelled to perform its obligation, and that, as it was not bound, neither was bound. As we have seen, the contract is not in violation of express statute, good morals or public policy. If it were assumed that there was a lack of power in the township officers or that specific performance of the promise made by the township could not be required, these could not now be regarded as material objections. The township has elected to perform its promise. The defendant has received and is enjoying the benefits of performance by the township and should not now be permitted to repudiate its obligation. As to the lack of mutuality, performance by the township has eliminated that question, and it is now too late for the defendant to rid itself of liability on the ground that performance of the promise could not have been compelled. (Brown v. City of Atchison, 39 Kan. 37, 17 Pac. 465, 7 Am. St. Rep. 515; Town Co. v. Morris, 43 Kan. 282, 23 Pac. 569; City of Ellsworth v. Rossiter, 46 Kan. 237, 26 Pac. 674; Comm’rs of Hamilton Co. v. Webb, 47 Kan. 104, 27 Pac. 825; Water-Supply Co. v. Root, 56 Kan. 187, 42 Pac. 715; Railroad Co. v. Johnson, 58 Kan. 175, 48 Pac. 847; Coal Co. v. Sugar Loaf Township, 64 Kan. 163, 67 Pac. 630; Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123.)
The court rightly sustained the demurrer to the count of the answer attempting to plead duress. The averments therein — that the township officers declared they would not call an election to vote bonds to be used in building the highway until the defendant and its coobligors would agree to assume a share of the burden, and that for defendant to have refused to sign the contract would have put it in an unenviable light and in bad repute with its patrons — do not amount to a charge of duress. The officers of the township could not arbitrarily decline the performance of official duty, and if it was, their duty to call an election to vote bonds they could have been compelled to make the call. Good reasons may have existed for the position taken by the township officers, and it was not duress to threaten to do that which they had a right to do. Duress is a condition of the mind produced by wrongful conduct, and it does not appear from the allegations that the failure to call a bond election until the parties to be benefited by the bond election had agreed to share in the expense of making the improvement was a wrong against the defendant. Besides, it is difficult to think that the refusal of the township officers to make the call for an election could have prostrated the defendant’s officers with fear and deprived them of the exercise of willpower. There was no misrepresentation of the defendant, no threat made against it or its business; there was nothing but a refusal to call a bond election to provide the means to make an improvement especially beneficial to the defendant until it was willing to share in the expense of it. The influence which circuitously reached the defendant through its patrons may have been a sort of duress of public opinion, but whether it was actuated by fear of the public opinion- or by a sense of duty the influence cannot be regarded as legal duress.
There were some objections to the testimony of witnesses as to the formation of the river banks and the character of the soil, wherein they gave their opinions of the stability of the ground, its liability to wash away, and also as to the .performance of the work done. Much of the testimony to which there was objection was a relation of facts within the observation of the witnesses, and the opinions which they expressed were mainly of things which could not well be reproduced or made palpable to the jury, and as to these things opinions may be received. (Telephone Co. v. Vandevort, 67 Kan. 269.) The witnesses lived in the vicinity and were familiar with the soil and the effect of floods upon it. Some of the questions might well have been submitted to witnesses with scientific skill, but it cannot be said that the defendant suffered any prejudice by reason of the testimony admitted or that its admission furnishes a ground for setting aside the verdict.
The remaining question — -whether there has been a substantial performance of the contract by the building of the highway, which incidentally effected a reasonably permanent restoration of the water-power of the defendant — is one of fact, which the jury have determined. The general finding, based as it is upon what appears to be sufficient evidence, is conclusive on this review.
In none of the rulings complained of do we find any prejudicial error, and hence the judgment of the district court is affirmed. | [
-14,
110,
-72,
-20,
-38,
66,
58,
-101,
81,
-79,
-75,
-45,
-85,
-46,
20,
105,
-25,
-3,
-16,
104,
114,
-77,
59,
107,
-44,
-45,
-29,
-51,
-79,
76,
-12,
-43,
76,
48,
10,
-99,
-26,
66,
-35,
92,
-50,
-123,
44,
-63,
-35,
80,
52,
91,
112,
75,
117,
-98,
-13,
44,
20,
-62,
-83,
56,
121,
-83,
81,
-80,
-84,
-105,
109,
20,
-111,
70,
-104,
-127,
-8,
46,
-104,
49,
-100,
-20,
119,
-90,
-122,
-12,
37,
-103,
8,
98,
98,
64,
-75,
-49,
-4,
-40,
4,
-38,
-115,
-90,
22,
25,
-125,
104,
-74,
-97,
124,
86,
-121,
126,
-17,
-123,
91,
44,
7,
-117,
-10,
-29,
-49,
124,
25,
1,
-49,
41,
50,
100,
-60,
112,
76,
71,
59,
27,
-97,
-7
]
|
The opinion of the court was delivered by
Johnston, C. J.:
In this case G. F. Chaves, for himself and others similarly situated, questions the validity of the annexation of territory to the city of Atchison. The question, arises on a ruling sustaining a demurrer to his amended petition, in which it was alleged that in 1860 the land was platted and annexed to the city as “Spring Garden addition” but subsequently the addition was vacated and restored to the condition of unplatted land. Later several attempts were made again to bring the land within the city, which the courts held to be ineffectual. Still later, and on August 18, 1905, the mayor and council of the city passed an ordinance in due form which treated the tract as platted territory and purported to annex it to the city. The ordinance was approved and published. Since that time the officers of the city have assumed that the tract is within the corporate limits, and claim the right to exercise authority and control by. establishing lights, opening and working streets and alleys, building walks, assessing real and personal property, and exercising the same dominion and control over the land which they might if it were legally brought within the limits of the city. Chaves owns and resides upon the tract of land so annexed, and he asks that the city and its officers be enjoined from imposing city taxes on persons and property upon the land in question, and from improving or controlling the streets, walks or highways of the addition, and from exercising authority and control as if it were a part of the city.
The theory of the court in sustaining the demurrer to the petition is said to have been that the corporate organization of the city, including the extension of its limits, could not be questioned in a collateral proceeding, nor at the suit of private parties. Specific legislative authority has been given for extending the corporate boundaries of cities of the first class so as to include adjoining territory and make it a part of the city. (Laws 1903, ch. 122, § 9.) In this act, the validity of which is not challenged, provision is made for annexing three classes of lands: First, land adjoining or touching the city limits which has been subdivided into blocks or lots; second, any unplatted land lying within or mainly within the city; third, a tract of platted or unplatted land, not exceeding twenty acres in area, having a boundary-line two-thirds of which lies upon or touches the boundary-line of the city. It thus appears that there is statutory authority for adding territory to the city. It is empowered to take in either platted or unplatted land, in large or small tracts — lands which lie wholly or mainly within the city limits, and lands which lie upon or touch its boundaries. It is alleged, it is true, that the tract was not legally annexed, but there is undoubted jurisdiction in the mayor and council to make a legal annexation by the passage of an ordinance. An ordinance has been passed in fair form pur porting to enlarge the boundaries of the city and making the addition in question a part of the city, and since that time the city has been exercising municipal authority over the addition and the people residing there.
The validity of the corporate existence of the city, as originally organized or as reorganized by the extension of its boundaries, cannot be questioned by private parties. It has been held that the extension of corporate limits to include new territory, under statutory authority, is, in effect, a reorganization of the city; that the act of annexation involves the corporate integrity of the city and is not open to collateral attack, and that •its validity cannot be questioned by any party other than the state any more than can the validity of the original organization of the city. {Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 471.) In that case the question presented here was examined with great care, the prior decisions of our own and other courts were cited and considered, and what was there said must be regarded as decisive of the case at bar. In the still later case of Railway Co. v. Lyon County, 72 Kan. 16, 82 Pac. 519, 84 Pac. 1031, the same principle was affirmed and applied. We are therefore not warranted in considering whether the steps taken to bring the tract of land into the city were legal or not. The objections which the plaintiff makes can only be considered in a direct proceeding prosecuted at the instance of the state by the attorney-general or county attorney.
The judgment is affirmed. | [
-16,
110,
-16,
47,
26,
68,
24,
-71,
105,
-80,
-11,
95,
-19,
-40,
12,
113,
-54,
61,
80,
107,
-25,
-77,
71,
98,
-110,
-13,
-17,
-35,
113,
92,
-10,
86,
78,
100,
-54,
-107,
70,
70,
11,
-36,
-114,
-95,
-87,
72,
-39,
96,
52,
115,
32,
78,
113,
15,
-13,
40,
25,
-29,
-20,
44,
-37,
44,
-107,
-8,
-68,
-124,
125,
30,
1,
100,
-100,
-125,
-56,
-82,
-112,
113,
-112,
-120,
115,
-90,
-106,
118,
79,
-101,
-116,
98,
98,
1,
105,
-17,
-72,
-103,
15,
-6,
-121,
-90,
-122,
25,
-22,
96,
-106,
-101,
116,
70,
7,
114,
-26,
5,
31,
108,
-115,
-82,
-108,
-79,
-57,
112,
-102,
65,
-61,
-89,
-79,
96,
-56,
-26,
124,
-13,
26,
-101,
-97,
-40
]
|
Per Curiam:
This is an action by John W. Davies against John Murray and Hoyt & Secrest, a real-estate firm composed of J. C. Hoyt and Frank Secrest, to recover the value of cattle alleged to have been obtained by defendants from Davies in Atchison county by fraudulent representations. The cattle, of the value of $4500, were turned over to defendants as the first payment on two sections of land in- Butler county which Hoyt contracted to sell to Davies. There was to be a -second payment, on or before the March following, of $5430, and the balance, $5430, was to be paid within three years.
The petition -alleged, and there was testimony sufficient to show, that defendants represented to Davies that Hoyt was the owner of the land which he contracted to sell, and also of a great many other tracts of land in Butler county, and that he was financially interested in all the banks of El Dorado and was fully responsible for the performance of his contract. After the contract had been made, but before all the cattle were taken away, Davies was led to question the security he had for the performance of the contract, and went with defendants to the office of an attorney, who advised Davies that he had no more than the personal responsibility and honor of the defendants as to Hoyt’s ability to carry out the contract. The defendants then agreed to furnish the attorney abstracts and make such provisions as would satisfy the attorney as to the ownership of the land and the protection of Davies. Some days afterward they returned to Davies’s home and stated that they had furnished the required documents •and satisfied the requirements of the attorney, and upon these statements they obtained the delivery of the cattle. The statement that they had satisfied the attorney was untrue. The representations that Hoyt was the owner of the land which he undertook to sell were false. There was no truth in the representation that he owned other lands in that county, nor in the representation that he was financially interested in all of the banks of El Dorado. There was considerable correspondence •and negotiation between the parties regarding the furnishing of abstracts and the closing up of the transaction. Quite a number of persons owned the land in question, some of whom were non-residents. The title to some of it was in the state and held only under a school-land certificate. Part of it was held under a tax title. Some was encumbered by mortgages, and part held under a long-time lease. Although defendants made some efforts to acquire the land, or the right to sell it, they never at any time were in a position to transfer a clear title to Davies. However, the action was not for specific performance, but the question was whether the cattle were obtained from Davies by fraudulent representations upon which he relied, and this was abundantly shown.
Having been induced to part with his property through the fraud of the defendants, he was entitled to rescind and recover the. value of the cattle so fraudu-. lently obtained. But it is said that the right to rescind was waived by the conduct of Davies in continuing to negotiate and to demand the closing up of the transaction after learning that the representations were false. Davies had suspicions, and learned that some of the facts had not been correctly represented by defendants, but, although he did try to obtain abstracts and pushed the inquiry as to whether Hoyt had the right to convey, it does not appear that he acquired full knowledge as to the ownership of the land or as to the financial respon sibility of Hoyt until he repudiated the contract. ' There can be no ratification without knowledge, and parties cannot be relieved'from the consequence of false representations, made with the intent to deceive and upon which the other party relied, by the mere showing that such other party had an opportunity to learn the truth. Nothing in the efforts of Davies to close up the transaction, nor in the proposition to adjust the matter, operated as a ratification of the fraudulent contract. There was no such delay or misleading conduct as will bar him from recovering the value of the property fraudulently taken from him.
There is nothing substantial in the objections to the findings or the instruction which was criticized. The judgment is affirmed. | [
112,
108,
57,
61,
-98,
96,
56,
-102,
75,
-21,
-9,
83,
-19,
-118,
0,
53,
-30,
45,
-43,
120,
-26,
-78,
83,
-93,
18,
-13,
-111,
-35,
-80,
77,
-90,
-43,
77,
48,
-62,
29,
6,
-30,
-57,
92,
14,
1,
11,
-32,
-39,
16,
52,
-7,
20,
75,
49,
14,
-1,
42,
61,
67,
73,
46,
107,
-69,
-48,
-16,
-69,
5,
127,
7,
0,
100,
-112,
87,
-56,
122,
-112,
50,
24,
-87,
115,
-74,
-58,
116,
45,
-119,
40,
38,
102,
32,
-4,
-113,
96,
-84,
15,
-1,
-119,
7,
-62,
72,
51,
35,
-98,
-99,
90,
-48,
6,
-8,
-12,
13,
25,
44,
23,
-49,
-44,
-125,
15,
-68,
-116,
11,
-13,
7,
48,
112,
-51,
-94,
93,
71,
56,
-101,
14,
-9
]
|
The opinion of the court was delivered by
Porter, J.:
By an act of the legislature (Laws 1905, ch. 491) the governor was authorized to employ such competent accountants as he might deem necessary for the purpose of causing a full investigation to-be made of the various state departments. The act appropriated funds to pay for the services of such accountants. In pursuance of the act the governor employed plaintiff to investigate the treasury department.
This is an original proceeding in mandamus to compel the state treasurer to countersign and register a warrant for the sum of $2237.75, a balance due plaintiff for services rendered in the examination of tfie state treasury. The warrant was issued by the auditor, upon a voucher duly approved and certified by the' governor,, in accordance with the provisions of the act.
"The return to the alternative writ sets up as a defense: First, that plaintiff is a corporation created by the laws of another state for a purpose for which corporations are not permitted to be organized by the laws of this state, and, therefore, cannot maintain the action ; second, that it is a foreign corporation which has never applied for or received permission to engage in business within the state under the provisions of the Bush law, and for that reason- cannot maintain the action! o
There is an agreed statement of facts, from which it. appears that plaintiff is a corporation organized and created under the laws of the state of New York, and authorized to do, as a corporation, all of the acts which it is alleged in the alternative writ were done by it. It: is also agreed that plaintiff never has had an office or place of business in the state of Kansas. The Honorable Edward W. Hoch, as governor of the state, on May 15, 1905, employed plaintiff by letter, addressed to it at its office in the city and state of New York, to make investigations under the act of 1905, in pursuance of which employment, under instructions from the governor, plaintiff sent its accountants to the office of the treasurer of the state, and they there took from the books and records information and data necessary for the making of a report, and afterward, at its office in New York, from the information and data so taken, plaintiff prepared its report and delivered the same to' the governor.
Our statute defining the purposes for which corporations may be created has no reference to foreign corporations. Other states and other governments may authorize corporations to exist for any lawful purpose which the lawmaking power of such states or governments may deem proper. And if the nature of the business which a foreign corporation is authorized by its charter to transact is not repugnant to our laws or contrary to our public policy its business may be transacted in this state. This proposition is universally recognized as true. (Land Grant Railway v. Com’rs of Coffey County, 6 Kan. 245, 254; A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596; Kansas City Bridge & Iron Co. v. Comm’rs of Wyandotte Co., 35 Kan. 557, 560, 11 Pac. 360.)
It is contended, however, that the act itself necessarily contemplates that the accountant must be a person. The contention is based upon the provision of the statute that in case the reports of the accountant shall show an offense against the state by any .officer, assistant or clerk the accountant, if so requested, either by the governor or attorney-general, shall make an affidavit or complaint against the guilty person charging him with such offense, and the governor is authorized to employ competent attorneys to assist in the prosecution of such person or persons. It is seriously argued that inasmuch as plaintiff is a corporation it would be impossible for it to comply with this provision of the act, because it is said that a corporation cannot make an affidavit. But it is apparent that the purpose of the foregoing provision of the act would be subserved equally as well if a complaint should be sworn to by some person in the employ of the corporation making the examination as if it were made by the individual who was called the accountant. It would hardly be claimed, for instance, that a valid warrant could not be issued upon a complaint sworn to by one in the employ of the corporation. Nor would the fact furnish ground for a motion to quash an indictment or information based upon such a complaint; The purpose of this provision is to facilitate the prosecution of any state officer or employee of a department who may be shown by the report of the accountant to be guilty of any offense against the state, and it is impossible to conceive of any way in which this purpose could be defeated by the fact that the complaint under such circumstances is sworn to by an officer or employee of the corporation acting as accountant. If the objection is not frivolous it has at least no substantial merit.
After all, the main question is whether the state in the exercise of its sovereign powers finds its hands tied by the provisions of the Bush act which require a corporation to comply with that act before engaging in business in the state. The mere statement of the propor sition shows that there can be but one answer, though there are several reasons for the answer. In the first place, plaintiff was not transacting business in the state as contemplated by the provisions of the Bush law. In the second place, the Bush law was not enacted to prevent the state'itself from contracting with a foreign corporation for any purpose for which the state may make a contract, nor for the purpose of preventing a foreign corporation from dealing with, or transacting business with, the state. The legislature determined that the accounts of state officer's and departments should be examined for the welfare of the state itself, and that it should be done through the action of the governor. In causing this to be done, and in doing it, the state exercised a sovereign power.
The precise question was before the court and decided adversely to the contention of the defendant in The State v. Book Co., 69 Kan. 1, 76 Pac. 411, 1 L. R. A., n. s., 167. That was a case brought in the name of the state for the cancelation of certain contracts entered into between the book company and the state text-book commission, by which the book company agreed to supply the schools of the state with certain text-books, and gave bond for the performance of the obligation. The action was based upon the failure of the book company to comply with the law known as the Bush law before entering into the contracts. The question, therefore, was whether the contracts entered into were subject to cancelation because they were made before the book company had been admitted to do business within the state. The following language from the opinion of Mr. Justice Burch in that case applies with full force to the question involved here:
“The Bush law has no application to the facts of this controversy. In order better to discharge the exalted duty enjoined upon it by section 2 of article 6 of the constitution, the legislature undertook to secure uniformity of text-books in the common schools. In doing so it exercised a sovereign power. The matter of procuring a corporation to supply needed books is purely a state affair; no private right attaches to it. Nor is the act one of ordinary trade or commerce, in which the state may devest itself of the attributes of sovereignty and conduct itself as an individual may do. The most distinctively sovereign prerogatives of the legislature, under the constitution, are enlisted and concerned. Unable to attend to certain details of the work proposed, a .special agent was created, and clothed with such authority as seemed necessary to accomplish the legislative design. The state text-book commission is a public agency created to aid in the assertion of a public right and the execution of a public power in the interest of the public welfare.” (Page 22.)
We are satisfied with the interpretation of "the law as announced in that case and deem it useless to attempt to add further reasons or cite additional authorities. The peremptory writ is allowed. | [
-80,
110,
-40,
-68,
10,
96,
42,
-102,
105,
-31,
-92,
115,
-23,
74,
20,
121,
-29,
45,
80,
90,
-25,
-77,
71,
107,
-42,
-13,
-7,
-35,
-13,
77,
-20,
-42,
76,
48,
74,
-107,
38,
-62,
67,
-4,
-114,
0,
8,
-64,
-7,
-64,
48,
73,
50,
11,
113,
76,
-13,
42,
26,
-58,
-23,
44,
106,
-83,
-47,
-79,
-85,
-107,
125,
23,
49,
39,
28,
7,
-56,
46,
-104,
16,
-127,
-24,
122,
-74,
70,
-10,
47,
-23,
41,
98,
98,
7,
-107,
-27,
-66,
-116,
46,
-37,
-115,
-89,
-109,
88,
-29,
109,
-106,
-99,
117,
18,
-125,
-2,
-2,
21,
-101,
108,
13,
-113,
-58,
-109,
15,
103,
28,
19,
-17,
-95,
16,
96,
-58,
112,
93,
71,
58,
27,
-114,
-48
]
|
The opinion of the court was delivered by
Johnston, C. J.:
The principal complaint of the insurance company is that the trial court in its charge to the jury in effect excluded material issues,- and withdrew from the jury defenses which were .vital and upon which there was strong supporting evidence. One of these was that the injury sustained by plaintiff about three months before the policy was issued contributed to,.if it did not cause, the blindness of'one or both of his eyes. Another was the defense that the policy was void by reason of breaches of the warranties in the application.
Whether the blindness was solely or only partly the result of an injury sustained before the contract of insurance was made was a very important consideration in the case. The policy upon which the action was brought insured plaintiff against the “effects of bodily injuries sustained during the term of this policy and caused solely by external, violent and accidental means,” and provided that indemnity in the sum of $2000 should be paid in case “the irrecoverable loss of the sight of both eyes” should “result from such injuries within ninety days, independently of all other causes,” and further that “if the irrecoverable loss of the sight of one eye shall so result within ninety days the company will pay one-eighth of the principal sum of the policy.” In the policy was the additional provision that the insurance did not cover “anything of which the sole or contributory or secondary cause is, or which occurs while affected by or under the influence of, bodily infirmity.”
That the right eye of Despain was injured on October 9, 1904, is conceded, and that he went to the hospital, where he remained and received medical treatment of the injured eye for about a month, is not denied. The severity and effect of the wound then received is in dispute. The physician who examined the eye when plaintiff came to the hospital stated that he found a bruise on the nose near the corner of the right eye; that there was a rupture of the eyeball about half an inch long, through which some of the humors or contents of the eye were escaping; that the crystalline lens of the eye had been dislodged and was found in the conjunctival sac that surrounds the eye; and that considerable blood was also found within the eye. The dislodged lens was removed and thrown away, and treatment, intended to facilitate the healing of the wound, was administered. The hospital physicians advised plaintiff that as the «right eye would be of no further use it should be removed, and that its retention-would produce sympathetic epithelioma. One of the doctors testified that sympathetic 'inflammation ordinarily sets in from six to twelve weeks after the injury, and effects the destruction of the other eye within three to six months. The earliest appearance of that affection ever known to any of the witnesses was three weeks after the injury. The doctor who examined plaintiff’s eyes after the injury of January 1, 1905, said that injury was trivial in comparison with the former one, and that it could not have been the cause of the loss of the sight of the left eye, but that this loss must have been the result of the October injury. There was other medical testimony of the same character, and some of it was that the January injury might have accelerated the sympathetic affection of the left eye but that it could not have been the sole cause of the blindness of that eye. Despain, on the other hand, claimed and testified that the October injury to the right eye was slight — that the wound to the right eye in fact healed, and that- the eye was restored to its normal condition by the middle of November, more than a month before the insurance policy was issued.
In this state of the evidence it became very material for the jury to determine whether the October injury contributed to the loss of sight of either or both of the plaintiff’s eyes. That hurt was not within the life of the policy, and unless his blindness was the result of an injury sustained solely by external, violent and accidental means within the life of the policy, and independently of all other causes, he was not entitled to indemnity. If the injury of October was the secondary or contributing cause of the blindness, no recovery could be had under the policy. Now, the second and third instructions effectually eliminated any possible contributory effect of the injury inflicted before the policy was issued. In the second instruction the jury were told that the total destruction of the sight of the right eye before the issuance of the policy and the loss of the sight of the left eye by reason of that injury would bar a recovery, but the court stopped short of saying that if this injury contributed to the loss of sight no recovery could be had. In the third instruction the jury were in effect advised that if the injury of October was not of sufficient force and severity to destroy the sight of the right eye it-would not weigh in the consideration of the case. By these instructions nothing short of the total destruction of .sight by the prior injury was available as a defense. But for these restrictions who can say that the jury might not have inferred that the October injury,- although it did not absolutely destroy the vision of the right eye, did severely wound it, and that the second injury only accelerated the effect of the first and in a degree contributed to the final loss of sight? 'Who can say that the sympathetic inflammation which caused the loss of the left eye was not wholly, or even partly, due to the first injury? The wound was serious, and according to the testimony of defendant thé doctors told the plaintiff that the loss of vision of the left eye would necessarily follow from sympathetic affection if the right eye was not removed. He did not permit its removal, and the pain and symptoms of sympathetic inflammation began to be manifest about the length of time after the October injury that the doctors said it usually appeared.
There was expert testimony that the last injury could not have been the cause of the blindn'ess of the left eye, and the insurance company might have argued to the jury that there-was not sufficient time for the inflammation resulting from the January injury to have been transmitted along the optic nerve to the left eye; and who can say that the jury might not, if opportunity had been given, have found that one injury caused the loss qf sight óf one eye while the other injury occasioned the loss of sight of the remaining eye? If the October injury contributed to the loss of sight of the right eye, but the loss of the left eye was wholly the result of the January injury, the plaintiff could only recover for the loss of one eye. The insurance company would only be liable for $250 if only one eye was lost as the result of the January injury, but if that injury caused the loss of both eyes it would be liable for the full amount of $2000. At any rate the contributory effect of the first injury was of vital importance to the' case, and should have been submitted to the jury.
Plaintiff concedes that if there was testimony from which the inference might have be'en drawn that the October injury was a contributing cause of his blindness there would be ground for complaining of the instruction. He insists, however, that all of his evidence was to the effect that the blindness was wholly due to the January injury, and that all of the defendant’s testimony tended to show that it resulted entirely from the October injury, and that therefore there was no necessity for submitting the question to the jury, or at least no prejudice from the failure to instruct upon the question. Who can say, however, that the jury might not have believed the plaintiff’s evidence as to certain features and circumstances and disbelieved it as to others ? And why might not the jury have given credit to 'some of the defendant’s testimony as to the severity and effect of one injury or deemed the testimony of the plaintiff as to the extent of the other more worthy of belief? Since the jury are at liberty to accept so much of the testimony of a witness as they deem credible and reject the remainder,1 and since they-may, upon the whole testimony,‘draw their own inferences as to degree and extent, the plaintiff’s claim that there was no occasion to submit the contributory effect of the first injury cannot be upheld. The same omissions and defects are manifest in other instructions.
No feature of the representations in the warranties written in the application, which are confessedly false, were submitted to the jury. It was contended that the representations of the insured and his answers to the questions were correctly given by him but incorrectly written in the contract by the agents of the defendant, and, believing that they had written the answers correctly, he did not read them. On this proposition the testimony is in dispute. It was further claimed by the plaintiff that the policy was issued after the agents were correctly informed as to all the facts, including the former injury, the hospital treatment, the payment of $85 to plaintiff by the railway company because of that injury, and that the insurance company therefore waived the conditions which, upon the face of the contract, appeared to have been violated. There is a sharp conflict in the evidence as to the representations made by plaintiff, and also as to the negotiations between him and the agents at the time the contract was made; and the evidence'is also in conflict as to the extent of the agents’ authority. These questions of fact, dependent as they were in a degree upon conflicting testimony, should have been submitted to the jury. As we have seen, they were not mentioned in the instructions, but were definitely eliminated from the case by the statement in the. opening part of the charge to the jury, wherein the court said:
“Most of the questions arising from the evidence are questions of law, which have been settled by the court, . . . and so that you will not be confused by these legal questions you will confine your delibex-ationsl to determinixxg the questions of fact presented to you in the following instructions.”
These distinct defenses, being in issue and supported by proof, could not be ignored, and the instructions of the court that a verdict might be returned against defendant if another issue was decided in plaintiff’s favor was error. It is not necessary for a court to instruct the jury on an issue made by the pleadings if it is xxpt supported by evidence, but, as was said in Honick v. Railway Co., 66 Kan. 124, 71 Pac. 265, “we think the court should not, in giving instructions, restrict or ignore the issues formed by the pleadings and supported in the evidence. The claim of the parties as made by the pleading, if supported by evidence, should be fairly and fully stated to the jury by proper instruction.” (Page 126.)
There is. complaint of .other rulings made in the course of the trial, but as the questions will not necessarily arise on the new trial it is unnecessary to discuss or decide them. The judgment of the court of common pleas is reversed and the cause remanded for a new trial. | [
-80,
126,
-44,
-113,
26,
96,
104,
90,
95,
-95,
-75,
83,
-3,
-46,
12,
109,
-20,
109,
-47,
98,
126,
-29,
22,
34,
-46,
-101,
107,
-59,
-79,
72,
-12,
-4,
4,
40,
10,
-107,
-26,
75,
-63,
22,
-54,
-100,
-87,
-19,
-39,
50,
56,
58,
80,
71,
17,
-97,
-29,
42,
29,
-34,
45,
40,
-6,
-91,
-47,
-16,
-117,
13,
109,
21,
17,
6,
-98,
-93,
-38,
12,
-112,
49,
-128,
-20,
114,
-90,
-58,
-76,
101,
-103,
64,
98,
99,
32,
53,
-19,
120,
-104,
47,
86,
-113,
-91,
-106,
80,
-119,
6,
-66,
-99,
118,
20,
-121,
76,
-3,
88,
21,
36,
3,
-101,
-106,
-79,
-49,
116,
24,
102,
-9,
-101,
-76,
113,
-50,
-96,
92,
85,
123,
-101,
31,
-102
]
|
The opinion of the court was delivered, by
Smith, J.:
The defendant moves to dismiss the case here on the ground that there is not one hundred dollars in value involved. To establish this claim he computes the interest on each note from the date of the same to the 13th day of February, 1906, being the day the demurrer was sustained, then adds these amounts together and deducts therefrom the sum of all the partial payments with interest on each payment from the date it was made to February 13, 1906. By this method he finds a balance due on February 13, 1906, of $84.90. This method of computing interest is known as the mercantile method. The plaintiff, however, computes interest and applies partial payments according to the method known as the United States rule; that is to say, a partial payment being made and exceeding the amount of interest due on the note, he appliés the,payment first to the discharge of the interest due and the remainder to reduce the principal. If the payment be less than the interest due, the payment is applied to the interest, but the balance of interest is not applied to increase the principal. By this method of computation there appears to have been in issue on February 13, 1906, the sum of $101.46. The latter is the almost universal method of computing interest and applying payments in this state, as well as in the great majority of states. (22 Cyc. 1564, and authorities there cited.) The motion to dismiss is denied.
The bill of particulars of the plaintiff, upon which the case was presented in the district court, embraced three causes of action, one upon each note. Separate demurrers, upon the same grounds, were filed to each cause of action, the first ground being that sufficient facts were not stated to constitute a cause of action; the second, that the cause of action showed upon its face that it was barred by the statute of limitations. The court sustained each of the demurrers on both grounds.
It is contended on the part of defendant, as it appeared in each cause of action from the contract attached to the promissory note that the plaintiff reserved the title and right of possession of the property sold, the price of which constituted the only consideration for the note, and thereafter took possession of the property and sold it, that this constituted a revocation of the contract of sale and no consideration remained for the note; in other words, that the transaction constituted a conditional sale, and upon the defendant’s breaking the condition of payment the plaintiff elected to avoid the sale, or should be conclusively presumed to have elected to avoid the sale, by the taking of the property, and that the plaintiff could not thereafter recover on the note.
Authorities are cited from several states which hold that, where the contract attached to a note shows the seller retained the title and right of possession of the property until payment was made, and took possession of the property under the contract, the consideration for the note thereby failed and he cannot recover upon the note. The contract in this case, however, goes further and provides that the seller may take possession of the property, remove and sell the same, and apply the proceeds toward the payment of the note, less the expense of such removal and sale. This is a plain recognition of the obligation to pay the note after the taking, of the property. At least since the enactment of section 4257 of the General Statutes of 1901, providing for the recording of such notes and contracts as chattel mortgages, these contracts should be regarded as on the same basis as chattel mortgages. Indeed the transaction, reserving the title and right of possession and right to retake the property, is intended and operates simply as a security for the debt. The transaction does not essentially differ from one in which the seller, at the time of making a sale, takes a promissory note for the purchase-price and at the same time, and before he has really transferred the property sold, takes a mortgage thereon to secure the payment of the note — the purchase-price. Under the law of this state such a mortgage conveys the title and right of possession to the mortgagee. In the one case the purchaser agrees unconditionally to pay a certain stated sum as the purchase-price, and agrees that the seller shall hold the title to the property and right of possession until the debt is paid, and, if it be not paid, that the seller may take the property and sell it and apply the proceeds of the sale toward the payment of the note, implying that the proceeds may be less than the amount of the note. In the other case the purchaser executes a promissory note and unconditionally promises thereby to pay the purchase-price, and, before he has actually received the property purchased, conveys the title and right of possession thereof to the seller, and further agrees that the seller may take possession of the property and sell it and apply the proceeds, less the expenses, toward the payment of the note. There is a theoretical distinction between the two transactions, but no practical difference.
It has never been held in this state, where a mortgagee, under such circumstances, took the mortgaged property and sold it in good faith at a less price than the amount of the note given for the purchase thereof, that the consideration had failed for the balance remaining on the note. On the other hand, the opposite of this proposition was decided by this court nearly twenty-five years ago, in Mfg. Co. v. Lewis, 30 Kan. 541, 1 Pac. 812, and the law on that subject has since been so generally regarded as settled by that decision that the court has never heretofore had occasion to cite the case. In the case at bar the purchaser may have had full consideration in the use of the articles purchased for the balance remaining unpaid on his notes. Under the contract attached to these notes, we hold that the plaintiff was authorized to take the property and sell it and apply the proceeds toward the payment of the notes, and that by so doing the law does not imply a revocation of the contract of sale, nor does the law imply that there remains no consideration for the payment of the balance due on the notes.
As to the second ground of demurrer, the bill of particulars in each cause of action alleged the absence of the defendant from the state of Kansas a sufficient length of time after the maturity of the notes and before the action was commenced to remove the bar of the statute of limitations, or rather to suspend' the running of the statute of limitations for such a length of time that the bar had not fallen at the time of the commencement of the action. (Gen. Stat. 1901, § 4449.-) And these allegations, as well as the allegations of payment, for the purposes of the demurrer, are admitted to be true. (Pears v. Wilson, 23 Kan. 343.)
The order sustaining the demurrer to each of the three causes of action is reversed, and the case is remanded for further proceedings in accordance with the views herein expressed. | [
-14,
124,
-112,
-18,
26,
96,
42,
-102,
65,
-32,
-73,
83,
105,
67,
20,
45,
-10,
41,
81,
104,
-58,
-77,
7,
67,
-14,
-77,
-39,
-35,
-75,
-51,
-20,
-42,
76,
48,
-62,
-107,
102,
-62,
-63,
16,
78,
36,
41,
77,
-7,
64,
48,
59,
0,
73,
49,
-49,
-13,
46,
28,
75,
105,
43,
123,
-71,
-64,
-7,
-117,
-123,
95,
20,
49,
117,
-100,
70,
-56,
14,
-112,
57,
65,
-24,
114,
-74,
-58,
84,
101,
-71,
8,
98,
98,
2,
101,
-19,
-40,
-104,
46,
-9,
-99,
-90,
18,
88,
11,
105,
-66,
-99,
124,
16,
-89,
86,
-14,
29,
25,
108,
23,
-97,
-42,
-125,
-113,
126,
-102,
11,
-2,
-109,
16,
96,
-50,
-94,
92,
117,
123,
-101,
-49,
-35
]
|
The opinion of the court was delivered by
Johnston, C. J.:
In a suit by E. A. Enright to quiet his title to a fractional lot in Kansas City, as against Conrad Liebheit and Louise Liebheit, he claimed title tb the lot because of adverse possession by himself and predecessors for the statutory period and also under a tax deed recently acquired from another. The court found generally in favor of Enright, and the Liebheits complain of a ruling refusing to require Enright to elect upon which title he would rely.
Enright could not be put to an election, as the two' titles, or rights, under which he claimed were not antagonistic. Proof of one did not necessarily disprove or destroy the other. • There was no reason why the plaintiff, holding under adverse possession, should not fortify and protect his possession and title thereunder by procuring an. outstanding tax title from another party, nor any reason why he might not set up both as against the defendants. (Douglas v. Muse [Kan. 1900, not reported,], 61 Pac. 413; Omaha & Florence L. & T. Co. v. Hansen, 32 Neb. 449, 49 N. W. 456.)
To establish adverse-possession Enright introduced testimony tending to show that R. E. Bullett, under whom he held, had been in possession of the lot, claiming title and exercising acts of ownership over it, from the summer of 1889 continuously until he sold it to C. W. Brewer, in 1902, who in turn conveyed it to En-right, and that together they had had uninterrupted possession for the statutory period. To reinforce this testimony and give color to the occupancy of Bullett his declarations importing a claim of title in himself were admitted in evidence over the objections of the defendants. The declarations were made while he was in possession. They serve to give the possession an adverse color, to show the character of the right he was asserting, and are admissible as verbal parts of his act of occupation. (Rand v. Huff [Kan. 1898, not reported,], 53 Pac. 483; 3 Wig. Ev. § 1778.)
The character of the possession is attacked by the Leibheits, who insist that the evidence is insufficient to show that Bullett’s occupancy was such as to give title by adverse possession. The lot adjoined one upon which Bullett built his house, and both lots were graded at the same time and at considerable expense. The fractional lot was thereafter used in connection with the other as his home. Part of it was used as an entrance to his barn and as a barn-yard. Sheds were built and vehicles and implements were placed on the lot, and lumber and other articles were stored there. He fenced it with wire and used it as a pasture, truck garden and playground. His occupation was open and notorious; it was exclusive and continuous, and appears to have been of such a character as to give notice to all that he. was asserting a right to the land in himself.
It is said, however, that he went into possession of the lot without any color of title, but this did not prevent him from taking hostile possession and acquiring title by adverse possession. In Anderson v. Burnham,, 52 Kan. 454, 34 Pac. 1056, it was said that “possession of land by an adverse occupant for more than fifteen years, which is actual, notorious, continuous, and exclusive, will give title thereto, although such possession is entirely destitute of color of title.” (Syllabus. See, also, Pratt v. Ard, 63 Kan. 182, 65 Pac. 255; Bird v. Whetstone, 71 Kan. 430, 80 Pac. 942.)
There being proof of adverse possession sufficient to give title and to sustain the finding and judgment of the court, it is unnecessary to consider the claim of right under the tax title.
The judgment of the district court is affirmed. | [
-15,
110,
-39,
63,
42,
96,
40,
-40,
97,
-96,
36,
83,
107,
-38,
29,
61,
-13,
61,
-15,
104,
68,
-73,
7,
-93,
-44,
19,
-37,
-59,
-72,
92,
-9,
-59,
76,
32,
-62,
-43,
102,
-62,
77,
92,
-114,
-115,
-85,
68,
-37,
96,
60,
58,
112,
75,
17,
-69,
-13,
62,
25,
-45,
73,
46,
75,
-75,
112,
-72,
-97,
-59,
109,
22,
19,
22,
-72,
-63,
104,
12,
-112,
24,
5,
-24,
51,
-90,
22,
-11,
5,
9,
8,
102,
99,
18,
109,
-17,
-28,
-104,
46,
123,
15,
-90,
-110,
88,
3,
105,
-66,
-103,
117,
2,
7,
118,
-26,
21,
28,
124,
15,
-117,
-42,
-77,
15,
120,
-127,
67,
-33,
-93,
-91,
113,
-52,
36,
92,
83,
94,
-77,
-113,
-48
]
|
The opinion of the court was delivered by
Graves, J.:
The principal part of the argument presented in this case is confined to a discussion concerning the jurisdiction of the circuit court in South Dakota, where the plaintiff obtained a divorce from her husband. This subject is fully discussed and many authorities are cited by each party. In the view we-have taken, however, this question is not controlling.
The complaint made by the plaintiff is that the district court erroneously entered judgment in favor of' the defendant upon the pleadings. This question must be determined from the facts alleged. The averments of these pleadings show in substance that A. Scott Bledsoe commenced an action in the state of South Dakota to obtain a divorce from his then wife, the plaintiff in this action. In that action she appeared and filed an answer and cross-petition, in which she asked for a divorce, for the custody of their infant child, and for alimony. The prayer of the cross-petition was granted, and she obtained the decree requested. This decree was entered in 1898, more than seven years before she commenced this action in Shawnee county. She has retained the exclusive possession and control of the child during that time. The judgment for alimony still stands in her favor. A party cannot invoke the jurisdiction and power of a court for the purpose of securing-important rights from his adversary through its judgment and, after having obtained the relief desired, re pudiate the action of the court on the ground that it was without jurisdiction. The question whether the court had jurisdiction, either of the subject-matter of the action or of the parties, is not important in such cases. Parties are barred from such conduct, not because the judgment obtained is conclusive as an adjudication, but for the reason that such a practice cannot be tolerated. People who invoke the action of a court, and, through negligence or falsehood, mislead the court as to the existence of the facts upon Which its jurisdiction depends, and obtain a judgment for relief, will not afterward be heard to deny the validity of such judgment. (16 Cyc. 795-800; Ogden v. Stokes, 25 Kan. 517.)
This rule has been frequently applied to actions for divorce where the decree was obtained in one state and afterward attacked in another. In the case of In re Ellis’ Estate, 55 Minn. 401, 56 N. W. 1056, 23 L. R. A. 287, 43 Am. St. Rep. 514, it was held that “where, in an action in the court of another state for divorce, both parties voluntarily appear, and submit to the jurisdiction, they are bound by the judgment, and cannot avoid it in a collateral proceeding in this state by proof that when the action was brought and judgment rendered neither of them was a resident in that state, and that both were residents in this státe.” (Syllabus.) The facts of that case show that Matthew Ellis died intestate. Eight years before that his wife, at his request, obtained a divorce from him in the state of Wisconsin, and he subsequently married and left as his widow Flora Ellis.- The two women contested for his estate, each claiming to be his lawful widow. The first wife contended that the Wisconsin divorce obtained by her was void, for the reason that she was not a resident of that state at that time and therefore the 'court did not have jurisdiction. This contention was 'denied: In the opinion the court said:
“It may seem anomalous that a judgment of divorce can be so far effectual between the parties as to extinguish all rights of property dependent on the mar riage relation without being effectual to protect them from acpountability to the state for their subsequent acts. One reason why they ought not to be'permitted, by going into another state and procuring a divorce, to escape accountability to the laws of their state, is that their act is a fraud upon the state, and an attempt to evade, its laws, to which it in no wise consents, and it may therefore complain. But the parties do consent, and why should they be heard to complain of the consequences to them of what they have done? Why should they be permitted to escape those consequences by saying: Tt is true that by false oath made by one of us, and- connived at by the other, we committed a fraud in the Wisconsin court, and induced it to take cognizance of the case; but now we ask to avoid its judgment by proof of our fraud and perjury or subornation of perjury.’ Because we do not think it can be done the parties must, so far as their individual interests are concerned, abide by the judgment they procured that court to render.” (Page 413.)
This case resembles the one just quoted from quite closely. Bledsoe left Kansas and went to South Dakota to obtain a divorce. His wife followed. In his petition he pleaded residence as required by the law of that state. The wife filed a cross-petition in which she alleged “that for more than three months before the commencement of this action the plaintiff has been and now is a resident of the state of South Dakota.” Apparently the only reason for this allegation was a desire to leave the question of jurisdiction unchallenged. As an affirmative allegation of residence it was perhaps insufficient, but it might be construed as an admission of the plaintiff’s averment of that fact.
In the case of Starbuck v. Starbuck, 173 N. Y. 503, 66 N. E. 195, 93 Am. St. Rep. 631, it was held that “a party cannot ... be heard to impeach a decree or judgment which he himself has procured to be entered in his own favor.” (Page 508.) In that action there was a controversy between two women, both claiming to' be the widow of the deceased, and, therefore, entitled to a part of his estate. One of them left the de ceased, who resided in the state of New York, and went to Massachusetts, where she obtained a divorce from her husband, who did not appear in the action. After the decree she remained in the state of Massachusetts. Her divorced husband subsequently married again. It was claimed that the Massachusetts divorce was void for the reason that the court did not have jurisdiction. The objection was overruled and the decree sustained. In the case of Waldo v. Waldo, 52 Mich. 94, 17 N. W. 710, it was held that “an Indiana divorce cannot be impeached in a purely collateral civil action in Michigan by seeking to show that the residence of the complainant in the divorce suit was not such as to give the Indiana court jurisdiction.” (Syllabus. See, also, Matter of Morrisson, 59 N. Y. Supr. Ct. 102, 5 N. Y. Supp. 90; Matter of Swales, 60 N. Y. Supr. Ct., App. Div., 599, 172 N. Y. 651, 65 N. E. 1122.) The following cases, while not directly in point, are of the same general effect: Richardson’s Estate, 132 Pa. St. 292, 19 Atl. 82; Kinnier v. Kinnier, 45 N. Y. 535, 6 Am. Rep. 132; Kirrigan v. Kirrigan, 15 N. J. Eq. 146; Ellis v. White et al., 61 Iowa, 644, 17 N. W. 28.
While the rule applied in this case does not rest upon the doctrine of estoppel, as that term is ordinarily understood, yet there are some facts present which indicate that an ordinary estoppel might be applied. The plaintiff complains of the defendant for having alienated the affections of her husband. Her right to recover for the acts complained of, which occurred before the divorce was granted, has been long since barred by the statute of limitations. When the plaintiff procured the divorce the defendant, having knowledge thereof, had a right to assume that the plaintiff no longer had or claimed any rights to the affections or society of her former husband, A. Scott Bledsoe, and that any relations which she might assume with him thereafter would not in any way infringe upon the rights of the plaintiff. The conduct of the plaintiff in this respect is almost tantamount to an express withdrawal of-ob jection to the illicit relations existing between the defendant and the plaintiff’s husband at the time of the divorce. But for the decree these relations might have ceased; by it they were probably encouraged.
We conclude that the plaintiff should not be permitted to impeach the South Dakota decree. This conclusion disposes of all the other questions in the case and they need not be considered. The judgment of the district court is affirmed. | [
-16,
-20,
-11,
61,
-117,
-32,
42,
-64,
64,
-109,
101,
-13,
105,
-21,
16,
123,
114,
43,
113,
99,
87,
-73,
22,
67,
118,
-77,
-15,
-35,
-77,
-19,
-4,
-34,
76,
32,
34,
-43,
70,
42,
-123,
26,
-50,
38,
-120,
108,
-24,
2,
48,
113,
82,
75,
117,
-17,
-13,
42,
91,
-61,
40,
44,
91,
-68,
-64,
-112,
-114,
5,
125,
2,
-109,
37,
-108,
-90,
72,
42,
-128,
57,
3,
-24,
115,
-74,
-105,
117,
105,
-71,
9,
118,
98,
3,
68,
-17,
-8,
-104,
47,
63,
-99,
-90,
-108,
80,
-53,
13,
-74,
-99,
117,
20,
-125,
-10,
-19,
15,
26,
-12,
11,
-54,
-106,
-71,
-113,
48,
-79,
67,
-29,
-128,
52,
117,
-51,
-30,
93,
82,
81,
-101,
-113,
-108
]
|
The opinion of the. court was-delivered by
Mason, J.:
Ida M. Bruce recovered a judgment in a replevin' action against C. N. Norton for the return of two horses and for damages for their detention, and the defendant prosecutes error. The plaintiff had executed a bill of sale to the defendant which; if valid, was fatal to her recovery, but which she claimed had been fraudulently obtained. On review it is maintained that there was no evidence whatever of any fraud having been practiced upon her. On the stand-she gave this account of the transaction, which was practically all the evidence bearing upon the question of fraud: Her husband was in jail, charged with having stolen a horse which he had sold to Norton; the bill of sale purported to indemnify Norton against loss in that connection; Norton told her that there were other persons getting out papers to sell her out — take everything she had — and that he was her friend and would hold the horses for her for a few days and then return them to her; under these circumstances she signed the bill of sale and turned over the horses to Norton, who kept them for his own benefit.
The defendant contends that the representations which the plaintiff says were made to her were not of such a character as to vitiate the bill of sale if they were false, and that there was no evidence that they were not true. The contention is unsound. If the plaintiff told the truth she was misled as to the purpose and effect of the instrument she was asked to sign — the transaction was wholly different from what she was led to believe. While there was no direct evidence that other persons were not in fact preparing to proceed against her, the jury were warranted in inferring from the subsequent conduct of Norton that the story to that effect was an invention.-
The evidence showed that one of the horses had been returned to the plaintiff before the trial. Notwithstanding this the judgment, doubtless through inadvertence, was rendered for the return of both or for their value, which was fixed at $125, the amount not being apportioned between the two animals. It is not clear that any prejudice could result to the defendant from a formal order for the return of the horse which he had already delivered, but the value of the one he retained should have been separately fixed, as a measure of the plaintiff’s recovery in case no return of it could be had. This defect, however, can be remedied by a modification of the judgment upon the present record. The values-of the horses were fixed in the replevin affidavit at $75 and $50 respectively. The only evidence on the subject of value corresponded with these figures. Manifestly, therefore, the jury in fixing the aggregate value at $125 adopted these estimates and in effect found that the animal still in the possession of the defendant was worth $75. The case is therefore remanded, with directions that the judgment be corrected so as to provide for the return of this animal or for the recovery of $75 if a return cannot be had. | [
-78,
126,
-8,
-83,
106,
-32,
32,
-102,
67,
-127,
35,
83,
-119,
67,
20,
75,
97,
-19,
84,
105,
-42,
-77,
23,
-90,
-46,
-45,
-37,
-99,
-79,
77,
-9,
87,
77,
48,
-54,
93,
102,
-54,
65,
84,
-50,
5,
11,
-51,
89,
120,
52,
43,
4,
74,
113,
-113,
-29,
46,
21,
87,
105,
40,
107,
57,
-16,
-31,
-69,
-115,
-17,
22,
19,
36,
-66,
1,
-38,
46,
-112,
49,
1,
-24,
114,
-76,
-122,
84,
45,
-71,
8,
98,
34,
33,
77,
-21,
50,
-120,
39,
122,
-113,
-89,
-78,
72,
3,
97,
-105,
-99,
57,
80,
7,
-12,
-14,
-35,
-100,
108,
21,
-101,
-110,
-125,
-81,
126,
-104,
7,
-57,
-75,
18,
81,
-51,
104,
93,
48,
116,
-101,
-114,
-65
]
|
The opinion of the court was delivered by
Benson, J.:
There was no error in refusing to direct a verdict for the defendant. The plaintiff having shown the derailment of the train in which he was riding as a passenger, and injuries resulting to himself therefrom, made a prima facie case, and the burden was thrown upon the defendant to show that the injuries did not result from a want of care on its part. (S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45; A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 46 Pac. 310; Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439.) Whether this prima facie case was overcome by the evidence was a question for the jury and not for the court. (Railway Co. v. Geiser, 68 Kan. 281, 75 Pac. 68.)
It is argued that the jury did not find the negligence as alleged in the petition, and that .in the absence of such finding the judgment should have been for the defendant. It was alleged, in substance, that the company allowed the spikes to become loose in the ties and for that reason the rails were not held firmly in place, and failed to employ the best known methods of keeping its track in safe condition, thus causing the train to leave the track. The jury found that the company was negligent in not using the proper material for ties, that the spikes were loose, and that by using soft-wood ties, not sufficient to hold the spikes, it failed to use the best methods of keeping its track and road-bed in a safe and proper condition. The findings sustained the allega tions of negligence charged in the petition. It is argued that, as there was no averment of negligence in using soft-wood ties, the finding in- reference thereto was not within the issue. It was not the use of soft-wood ties that the jury found to be unsafe, but the use of softwood ties “which were not sufficient to hold the spikes,” and it was found that the spikes so driven into ties not sufficient to hold them were loose.
It is also urged that these findings are not sustained by the evidence. Something caused the displacement of the rail. The track was straight, the train was. moving at an ordinary rate of speed, and the wheels were shown to be in good condition. Only six days before the track had spread at the same place. The displaced rails had been restored to their proper position, and spiked down again upon the same ties. After this derailment the rails were found again forced out, and the spikes bent or forced down into the wood, thus permitting the rail to be pushed out and the track to spread. The jury found, in effect, that the rails were displaced because the spikes were loose, and that they were loose because the ties were insufficient to hold them. The fact that the same thing occurred shortly before at the same place was a circumstance to be considered jvith the other facts proved (3 Thomp. Com. Law of Neg. § 2814) ; the deductions and inferences therefrom were for the jury. Their findings are not shown to be unreasonable or inconsistent.
The defendant presented two questions which the court refused to submit to the jury. One was: “State in what particular the spikes were loose.” That the spikes were loose is itself a particular, i. e., an item or detail of the condition of the track. Not only was this defect stated, but also its cause. What more minute detail was desired was not suggested in the question. The other question asked the jury to state the condition of the track when the track-walker passed over it shortly before the derailment occurred. While the con dition of the track forty minutes before the occurrence complained of was some evidence tending 'to show its condition at that time, the material fact was its condition at the time of the derailment. The court did not err in rejecting these questions. (Foster v. Turner, 31 Kan. 58, 1 Pac. 145; Mo. Pac. Rly. Co. v. Reynolds, 31 Kan. 132, 1 Pac. 150; Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83; City of Weir v. Herbert, 6 Kan. App. 596, 51 Pac. 582.)
The defendant complains that too great a burden was imposed upon it by that clause of the instructions requiring the company to show that the accident could not have been prevented by the exercise of the utmost human sagacity and foresight. The degree of care required of carriers of passengers with respect to cars and equipment applies to the road-bed and tracks (3Thomp. Com. Law of Neg. §§ 2796, 2797; 4 Ell. Railroads, § 1586), and the rule so stated in the instructions was declared to be the established law of this state in Union Pacific R. Co. v. Hand, 7 Kan. 380, and has since been affirmed in Topeka City Rly. Co. v. Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. Rep. 754, Mo. Pac. Rly. Co. v. Johnson, 55 Kan. 344, 40 Pac. 641, S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45, A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 46 Pac. 310, and in Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439.
Complaint is also made of the sixth instruction, wherein it was stated to be the duty of the company “to use and employ the latest and best known methods of keeping its track in good condition, including ties of the best quality of material,” and, “if human sagacity would have suggested that by the use of ties of first-class quality such injury could have been avoided,” then the plaintiff might recover, if certain other facts were proved. It is said that the language quoted increased ■the duty of the company in an unwarranted manner; that to use the best quality of material that human sagacity would suggest would require a prohibitive expenditure. But the very fact that any particular ma terial is so difficult to obtain and so expensive as to prohibit its use would also preclude its suggestion to the mind as being, required for such purpose. In Indianapolis, etc. R. R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898, where the instruction held the company to the exercise of “the highest possible degree of care and diligence” (p. 295), it was said by Mr. Justice Swayne that these terms “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.” (Page 296.) The court approved the charge, saying: “The language used cannot mislead. It well expresses the rigorous requirement of the law, and ought not to be departed from.” (Page 297.) The courts have used varying terms in defining the duty of carriers of passengers in this respect, but there is a general consensus of the meaning which may be drawn by the average mind from the expressions used. In other instructions given the court stated that it was the duty of the company “in the construction of its railway and in keeping it in proper condition for the safe transportation of passengers to exercise the highest degree of care and skill practicable under the circumstances, . . . but when such care and skill have been exercised its duty to the public has been sufficiently discharged.”
Again, the court said:
“But if the cause of the accident was one which the highest degree of practicable skill, care and caution consistent with operating the road could not have provided against, then you should find for the defendant.”
This expression, “practicable skill, care and caution,” was repeated in another place in defining the duty of the company. The fifth instruction, which is not copied because of its length, expresses the views of the defendant in this respect, since it follows very closely its request, and clearly indicates that no merely fanciful, unreasonable or impracticable burden was intended to be put upon the company by the language objected to. With out approving all the expressions referred .to, we must hold that they were not misleading, and that when the instructions are properly considered as a whole, as they naturally must have been by the jury, they were not erroneous. (Hays v. Farwell, 53 Kan. 78, 35 Pac. 794; The State v. Atterberry, 59 Kan. 237, 52 Pac. 451.)
It is also urged that the amount of the recovery was excessive, and the district court so considered it, for a remittitur of $200 was required. The court may do this unless it appears that the excessive amount was allowed through passion or prejudice. (U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Haldeman v. Johnson, 8 Kan. App. 473, 54 Pac. 507.)
The jury, in answer to special questions, found the amount of damages for certain particular injuries, but were not asked to specify further, and returned a gross sum. It is claimea- that the items appear in the memorandum that was found indorsed upon the findings, and that this shows the amount of the verdict to be excessive. We are not aware of any rule of practice by which we can treat this unsigned memorandum, not appearing to be in response to any question submitted, as a part of the verdict, in the absence of any action requested or taken thereon in the district court when the findings were returned.
The judgment is affirmed. | [
-80,
126,
-36,
-97,
74,
98,
40,
90,
97,
-43,
-25,
-13,
-19,
-61,
-127,
119,
-10,
63,
-48,
43,
86,
-77,
7,
-21,
-106,
-109,
115,
-60,
-75,
-21,
118,
-36,
77,
32,
-54,
-43,
102,
-56,
-59,
88,
-114,
4,
-87,
-19,
17,
48,
48,
126,
-108,
15,
49,
-102,
-13,
42,
24,
-61,
45,
41,
107,
57,
-64,
-7,
-102,
-121,
79,
20,
-79,
36,
-98,
39,
-40,
37,
-40,
53,
10,
-4,
99,
-76,
-109,
-44,
105,
-55,
73,
-26,
99,
33,
29,
-81,
-84,
-104,
46,
93,
13,
-26,
50,
8,
-23,
15,
-105,
-11,
70,
22,
6,
-18,
-25,
77,
89,
100,
-125,
-117,
-80,
-110,
-99,
52,
22,
33,
-53,
-95,
18,
113,
-52,
-72,
92,
5,
18,
-101,
-97,
-66
]
|
Per Curiam:
The plaintiff below recovered a judgment for personal injuries alleged to have been received through the negligence of defendant’s employees while riding on one of its street-cars. The car on which the defendant was riding at the time of the alleged injuries, while going down grade, got beyond the control of the motor-man and ran off the track into the street, causing the plaintiff to be thrown violently from the rear to the center of the car, inflicting the injuries for which she recovered judgment. The defendant prosecutes error.
The brief of plaintiff in error is devoted almost entirely to a discussion of errors alleged to have been committed by the court, in sustaining objections to the cross-examination of the witnesses of the plaintiff. An examination of the record fails to disclose any prejudicial error in this particular.
It is also contended that there is no evidence in the record tending to show negligence on the part of the defendant’s employees. The jury found specifically that the motorman operating the car on which the plaintiff was riding at the time she received her injuries was incompetent. While the evidence as to his incompetency and his mismanagement of the car was slight, there is the undisputed evidence of one witness that the motor-man on the car at the time of the injury did not properly manage the brakes in order to stop the car. There was also some evidence that this motor-man had been on the car only about two weeks prior to the accident. The sufficiency of the evidence to establish the fact of negligence was a question to be determined by the jury, and they found against the contention of the defendant.
The judgment is affirmed. | [
-14,
108,
-56,
-84,
-118,
96,
58,
10,
101,
-123,
-73,
-77,
-89,
-61,
28,
43,
-10,
-1,
-16,
35,
-35,
-93,
23,
-61,
-10,
-109,
-14,
68,
-75,
75,
-10,
-16,
77,
48,
-54,
-59,
102,
10,
-59,
80,
-114,
-106,
-86,
-24,
25,
48,
96,
58,
-64,
77,
113,
-98,
99,
46,
58,
71,
105,
40,
107,
-79,
-31,
-16,
-59,
-123,
127,
18,
-93,
36,
31,
47,
-40,
8,
-124,
49,
1,
-8,
50,
-74,
-126,
84,
105,
-71,
4,
102,
98,
49,
21,
-27,
-8,
-104,
7,
126,
15,
-91,
50,
32,
-119,
7,
-105,
-67,
93,
18,
6,
-20,
-4,
93,
93,
96,
3,
-49,
-112,
-77,
-17,
100,
62,
-53,
-17,
-93,
20,
113,
-52,
-30,
93,
5,
19,
-101,
-33,
-74
]
|
The opinion of the court was delivered by
Johnston, C. J. :
D. L. Felker caused the arrest of two persons charged with grand larceny in Elk county, and they were subsequently adjudged guilty of petit larceny. For this service Felker presented a claim against the county, based on a wholesale offer of reward made by the board of county commissioners of Elk county over two years before the-arrest was made. The board had undertaken to offer and pledge the county to pay a reward of fifty dollars to any one, other than an officer of Elk county, for the arrest and conviction of any person guilty of a felony. The board declined to allow the claim, and in a proceeding to recover it the district court held that no recovery could be had.
Apart from the obstacle to a recovery, that the persons apprehended for larceny were not convicted of a felony, there is a fundamental objection of a lack of power in the county board to offer and pay rewards for the arrest and conviction of criminals.
Persons competent to contract may ordinarily offer rewards, and when the offer is accepted and performed a liability for payment arises. The board of county commissioners, however, is a statutory organization, which has no power except such as is granted in express terms, or is necessarily implied in, or incident to, the powers expressed. There is no contention that express authority for the offer of rewards by the board exists, but there is a claim that it arises under the provisions giving power to the board to control all county expenditures and to make contracts in relation to the property and concerns of the county. The arrest and conviction of criminals, however, concerns the state rather than the county. The offenses committed were violations of state laws, and the duty of punishing the offenders devolved upon the state instead of the county. The board of county commissioners is only charged with the administration of civil affairs, and the offering of rewards for the detection and conviction of those who offend against the laws of the state is not an ordinary corporate duty, nor is it incident to the administration of county affairs.
The state, of course, might empower or make it the duty of the county board to offer rewards, but as it is a state function, and one outside of the scope of the ordinary duties of a county board, there must be express authority before the board can create a liability against the county by such an offer. No such power has been conferred, and when the legislature had under consideration the matter of rewards for the apprehension and conviction of criminals, the authority to offer and pay rewards was specifically given to the governor, and it was therefore impliedly withheld from every other officer or tribunal. (Gen. Stat. 1901, §§ 5760, 7832.) In the absence of an express provision giving a county or other municipality of the state express authority to offer rewards for the apprehension and conviction of offenders against the criminal laws of the state, the authorities generally hold that no such power exists. (Hanger v. The City of Des Moines, 52 Iowa, 193, 2 N. W. 1105, 35 Am. Rep. 266; Gale v. The Inhabitants of South Berwick, 51 Me. 174; The Board of Commissioners of Grant County v. Bradford, 72 Ind. 455, 37 Am. Rep. 174; Mountain v. Multnomah County, 16 Ore. 279, 18 Pac. 464; Abel v. Pembroke, 61 N. H. 359; Crofut v. Danbury, 65 Conn. 294, 32 Atl. 365; Patton, etc., v. Stephens, etc., 77 Ky. 324; Murphy v. The City of Jacksonville, 18 Fla. 318, 43 Am. Rep. 323; Baker v. City of Washington, 7 D. C. 134; 24 A. & E. Encycl. of L., 2d ed., 944.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
-18,
-69,
-68,
42,
96,
42,
-40,
67,
-77,
-73,
83,
-85,
-22,
5,
115,
-13,
125,
85,
105,
-46,
-10,
87,
97,
-66,
-5,
-39,
-57,
-79,
75,
-26,
-44,
77,
-80,
-54,
117,
102,
106,
-59,
86,
-118,
5,
58,
65,
-23,
74,
52,
9,
54,
10,
113,
-98,
-29,
58,
20,
-29,
41,
45,
91,
57,
-48,
-15,
-69,
-115,
93,
20,
-125,
0,
-104,
7,
-24,
46,
-104,
49,
2,
-8,
-13,
-122,
-122,
-12,
77,
-103,
-51,
102,
98,
5,
29,
-51,
-88,
-23,
14,
-10,
-99,
-90,
-99,
88,
42,
9,
-106,
-99,
-10,
118,
3,
124,
-30,
0,
85,
108,
5,
-113,
-106,
-93,
-50,
124,
6,
114,
-53,
-87,
51,
113,
-60,
-10,
94,
84,
112,
31,
14,
49
]
|
The opinion of the court was delivered by
Mason, J. :
I. A. Allen was arrested upon the complaint of J. N. Harmon upon a charge of burglary. A preliminary examination resulted in his discharge. He thereupon sued the Atchison, Topeka & Santa Fe Railway Company for malicious prosecution, alleging that Harmon had been its agent and had acted in its behalf in the matter. A trial resulted in a judgment for the plaintiff for $5000, from which the defendant prosecutes error.
It is first contended that a demurrer to the evidence should have been sustained upon the ground that it failed to show that Harmon was the agent of the defendant. The answer, however, in effect admitted that he was the company's agent for the purpose of investigating offenses against its property and of taking the necessary steps to have prosecutions begun in proper cases. It therefore appeared that he was an agent acting in the line of his authority, and even although he may have transgressed positive instructions his principal was bound for the consequences of his wrongful acts. (Wheeler & Wilson Mfg Co. v. Boyce, 36 Kan. 350, 13 Pac. 609, 59 Am. Rep. 571.)
The only other assignment of error requiring discussion relates to a feature of the instructions given. Objection is made to its consideration upon the ground that the record fails to show a sufficient exception. The case-made sets out the instructions given by the court, immediately followed by the recital: “To which instructions and each of them both plaintiff and defendant at the time asked and were allowed their exceptions.” It is not stated that no other instructions were given. The defendant in error asserts that the words quoted do not show that defendant excepted to anything ; that, if so, it was to the instructions and not to the giving of the instructions ; that the time of the taking of the exception is uncertain ; and that it is too general to be effective as the basis of challenge to any particular instruction. These objections are hypercritical. A statement that a party asked and was allowed an exception to a ruling must be interpreted as meaning that he excepted to it. To except to an instruction is to except to the giving of it. The words “at the time,” as here used, can in reason be held to refer only to the time of the giving of the instructions. The exception was in terms made applicable not merely to the charge as a whole, but to each instruction. As the error specified relates to the contents of instructions given, and not to an omission or refusal to instruct, it is not essential that there should be an affirmative showing that no other instructions were given.
The contention of plaintiff in error under the assignment referred to is that the trial court in effect left it to the jury to decide what facts would authorize the conclusion that there was or was not probable cause for the arrest of Allen, instead of confining them to a determination of what the facts were under the evidence, and declaring as a matter of law that probable cause was or was not shown, according to what the facts might be found to be. There was testimony that the railway company’s depot had been broken into and a quantity of bottled whisky stolen from it; that on the next morning Allen had a bottle of whisky which from its appearance might have been a part of the stolen property, although by no means fully identified as such ; that Allen had told Harmon that he had obtained the liquor from one Ed. Kinney on the day before the burglary as part payment on an account; that he had told another person that he had obtained it after the burglary; that what seemed to be a part of the stolen goods was afterward found in a livery-stable where Allen kept his horses ; that these matters, and perhaps also the fact that Kinney denied having furnished any liquor to Allen, were communicated to Harmon before he swore to the complaint. There were other items of evidence affecting the question of probable cause, but this statement is sufficiently full for the purposes of the present discussion. The court did not in so many words submit to the jury unreservedly the broad general question whether or not, under all the evidence, probable cause for the prosecution had been established ; but in the enumeration of the questions of fact to be passed upon in arriving at a conclusion in that regard, it included (with others of the same character), first, whether an ordinarily cautious and prudent man, having the information that came to Harmon before he instituted the prosecution against Allen, would have believed that the liquor shown to have been in Allen’s possession on the morning after the larceny was a part of the stolen property ; and second, whether an ordinarily cautious and prudent man, under the circumstances-shown, would have been satisfied from Allen’s statement or explanation that he came by it rightfully. The inquiry presented is whether this constituted an infraction of the rule that in actions for malicious prosecution it is for the” jury to determine only what facts are proved, and for the court to say whether or not they amount to probable cause.
The courts are substantially unanimous in recognizing, theoretically at least, the existence of such a rule. (Railroad Co. v. Smith, 60 Kan. 4, 55 Pac. 272; Drumm v. Cessnum, 58 id. 331, 49 Pac. 78; 19 A. & E. Encycl. of L., 2d ed., 669; 33 Cent. Dig. cc. 2003-2005.) But variations' in its practical application have produced a singular confusion in the authorities. For illustration, in Heyne v. Blair, 62 N. Y. 19, a majority of the judges say that even if there is no dispute in the evidence, if the facts shown are capable of different inferences, the question of the existence of probable cause is for the jury, adding: “Such is the rule in all questions of the like character, and there is no reason why this class of action-should form an exception to the rule.” On the other hand, in Driggs v. Burton, 44 Vt. 124, 146, it was said in a carefully considered and, as we think, a sound opinion :
“What constitutes probable cause in these actions is a question of law for the court. All inferences to be drawn from facts, undisputed or found by the jury to exist, are upon this subject inferences of law and not of fact, and are to be drawn by the court and not by the jury. This rule is peculiar to this class of ac tions, and has been long established, and is well founded upon sound reasons and good authority.”
The defendant in error cites Johnson v. Miller et al., 69 Iowa, 562, 566, 29 N. W. 743, 58 Am. Rep. 231, in which it was said :
“ When the prosecution was commenced, then, the defendants knew (1) that the property had been stolen by some person ; (2) that by the plaintiff’s own •admission he had the stolen property in his possession soon after the larceny; and (3) that he claimed to have acquired the possession of it by purchase from the man Smith.
“That the first two facts, standing alone, would have afforded probable cause for instituting the prosecution, cannot be denied; but it is equally apparent that, if plaintiff’s story in explanation of his possession of the property is true, no ground for the prosecution existed. The question, then, whether there was probable cause depends upon whether the facts and circumstances of the transaction, as they were known and understood by the defendants, would have warranted an ordinary prudent and cautious man in the belief that plaintiff’s story as to how he acquired the possession was false.
“The answer to the question depends, then, upon the conclusion or deduction which should be drawn from the numerous facts and circumstances of the case, and we think it was the province of the jury to draw that conclusion. The court could not say, as a matter of law, that the story was so unreasonable or improbable as to be unworthy of belief. It was properly left to the jury, and we cannot interfere with their finding.”
If this case be accepted as an authority it justifies the instructions given by the trial court; but we do not think it consistent with the rule referred to, which ordinarily is enforced in Iowa as well as elsewhere. (See Erb v. German American Ins. Co., 112 Iowa, 357, 83 N. W. 1053.) As indicated in the quotation given, under the circumstances there present the question whether the person arrested was guilty was narrowed down to the question whether his story as to how he came by the stolen property was false. If the circumstances warranted an ordinarily prudent and cautious person in believing that his story was untrue, then they warranted such a person in believing that he was guilty of the theft, and there was probable cause for his prosecution. (19 A. & E. Encycl. of L., 2d ed., 657, 659.) In allowing the jury to determine whether a man of ordinary prudence and caution would have believed the story told by the person accused, the court permitted them to decide whether probable cause existed for his arrest. There is an intimation in the language quoted that the case is to be distinguished from those in which it is held that the question as to what facts will constitute probable cause is one of law, upon the ground that deductions are required to be made from numerous circum-. stances. This consideration, however, will not serve for that purpose. If the court can declare that certain admitted or proved facts do or do not amount to probable cause only in case they are of such character that reasonable men cannot differ as to the conclusions to be drawn from them, then there is no difference in that regard between this class of cases and any other, for in any litigation where the facts are not disputed and admit of but one inference, nothing remains but for the court to declare their legal effect. But the rule referred to is peculiar to actions for malicious prosecution. It is said to be based upon “considerations of public policy, in view of the importance of not discouraging public prosecutions” (Burton v. St. Paul, Minneapolis & Manitoba Ry. Co., 33 Minn. 189, 192, 22 N. W. 300), although the early English cases, in which it was first declared, seem to assume that a question as to what evidence affords reasonable grounds for a criminal charge is intrinsically one to be decided by a judge rather than by a jury. Its effect is to. reserve to the court the function of determining the probative effect of the matters known to the complaining witness bearing upon the guilt of the person he accuses. Under its operation it is for the jury to say what facts were known to the complaining witness, but not what conclusions a reasonable man would draw from such facts. That is exclusively the province of the court.
These considerations are determinative of the case at bar. Their force is perhaps more obvious here than in the Iowa case commented upon. Allen did not admit that he had possession of a part of the stolen liquor and attempt to explain the fact. He asserted that what liquor he had was obtained before the burglary. If his statement was true the liquor in his possession could not have been a part of the stolen property. If the liquor was a part of the stolen property the statement could not be true. Therefore, if the circumstances known to Harmon were sufficient to satisfy an ordinarily cautious and prudent man that the liquor which Allen had on the morning after the burglary was a part of that taken from the depot, they were sufficient to satisfy such a man that Allen's story as to how he came by it was untrue, and that he was guilty of the offense charged ; or, in other words, they were sufficient to constitute probable cause for his prosecution. Consequently, in submitting to the jury the question whether, under all the evidence, the facts known to Harmon would have satisfied a reasonably prudent man that Allen did have some of the stolen property in his possession, and the question whether such a man would have accepted Allen’s, story as true, the court in effect left it to them to determine whether, under all the evidence as they might-view it, there was probable cause for Allen’s arrest.. This was a violation of the rule stated and requires a. reversal of the judgment.
The judgment is therefore reversed, and a new trial ordered.
All the Justices concurring. | [
-80,
120,
-56,
-65,
-102,
96,
40,
-72,
65,
-119,
-25,
83,
-19,
-41,
4,
59,
-35,
57,
81,
106,
92,
-73,
2,
83,
-14,
-13,
81,
-43,
53,
79,
-10,
-34,
77,
48,
-62,
-43,
102,
74,
-59,
-108,
-114,
-115,
-72,
64,
-71,
40,
48,
121,
52,
79,
113,
-97,
-13,
42,
24,
-53,
41,
44,
-22,
45,
-48,
-80,
-102,
77,
111,
4,
51,
39,
-102,
37,
88,
44,
-128,
17,
1,
-24,
115,
-76,
-58,
-12,
111,
25,
-127,
98,
98,
33,
105,
107,
-100,
-72,
62,
62,
-99,
-90,
16,
8,
41,
77,
-74,
-99,
55,
16,
38,
-2,
-16,
29,
89,
108,
1,
-113,
-108,
-95,
-1,
112,
-70,
-125,
-21,
-107,
16,
112,
-50,
-94,
92,
69,
114,
-101,
-114,
-124
]
|
The opinion of the court was delivered by
Mason, J. :
Edward Gilbert recovered a judgment against the Metropolitan Street-railway Company on account of injuries received by him through coming in contact with the end of a broken telegraph or telephone wire which had fallen to the ground upon a public street and had become charged with electricity by contact with the wire of the railway company. The company brings this proceeding to reverse the judgment. Only one question is presented — whether it was error for the trial court to charge the jury that the defendant was bound to use the highest degree of care to avoid injuries to persons using the streets, and to discover ando remedy the dangerous condition arising from the falling of the foreign wire across its own. Plaintiff in error contends that it should have been held to the exercise of only ordinary diligence.
Although it is everywhere recognized that it is the duty of users of electricity to employ a high degree of diligence to prevent its causing injury to. others, in many cases this principle is treated merely as an application of the general rule, and is expressed by the formula that ordinary care is required, proportioned to the danger to be averted. But the peculiar conditions involved in cases of injuries by electricity have given rise to a special doctrine, somewhat analogous to that requiring operators of railways to use all possible skill and care for the protection of passengers. (Topeka City Rly. Co. v. Higgs, 38 Kan. 375, 16 Pac. 667, 5 Am. St. Rep. 754.) In Thompson on the Law of Electricity it is said :
“It may be doubted whether persons or corporations employing for their own private advantage so dangerous an agency as electricity ought not to be regarded as giMm-insurers, as toward third persons, against any injurious consequences which may flow from it. It may be doubted whether one who collects, or rather creates, so dangerous an agency on his own land, ought not to be held to the obligation of restraining it, that is, of insulating it, at his peril.” (§65.)
The reasoning thus suggested was employed in an English case (National Telephone Company v. Baker, 2 Ch. D. [1893], 186, 201) in support of a ruling that an electric-railway company might be liable for damage caused by an electric current which it had created, irrespective of any question of negligence. No court in this country seéms to have gone so far as this, but the requirement of the use of extraordinary care has been generally approved when it has been the subject of discussion.
In Croswell on the Law Relating to Electricity, the rule derived from the American cases is thus stated:
“If but little danger is incurred, as, for instance, when the wires carry only a harmless electric current, such, for instance, as the telegraph or telephone current, only ordinary care may be required. While if the wires carry a strong and dangerous current of electricity, so that negligence will be likely to result in serious accidents, and perhaps death, or if a harmless wire is in dangerous proximity to a high-tension wire, a very high degree of care, indeed, the highest that human prudence is equal to, is necessary. This is particularly true of electric-light and electric-rail way wires, which carry a high-tension current, often of great danger.” ( § 234.)
A few quotations will serve to illustrate'the extent to which the rule is carried, and the reasoning by which it is supported :
“It is due to the citizen that electric companies that are permitted to use for their own purposes the streets of a city or town shall be required to exercise the utmost degree of care in the construction, inspection and repair of their wires and poles, to the end that travelers along the highway may not be injured by their appliances. The danger is great, and care and watchfulness must be commensurate to it. Passengers on railroad-trains have a right to expect and require the exercise by the carrier of the utmost care, so far as human skill and foresight can go, for the reason that a neglect of duty in such case is likely to result in great bodily harm, and sometimes death, to those who are compelled to use that means of conveyance. ‘As the result of the least negligence may be of so fatal a nature, the duty of vigilance on the part of the carrier requires the exercise of that amount of care and skill in order to prevent accidents.’ (Ray, Neg. Imp. Dut. 53.) All the reasons that support the rigid enforcement of this rigid rule against the carrier of passengers by steam apply with double force to those who are allowed to place above the streets of a city wires charged with a deadly current of electricity or liable to become so charged. The requirement does not carry with it too heavy a burden. Human skill can easily place wires and poles so that they will not break and fall, unless subjected to some strain that could not be anticipated, and it can as readily prevent the possibility under ordinary circumstances of the contact of wires that should not be allowed to touch one another.” (Haynes v. Gas Company, 114 N. C. 203, 211, 19 S. E. 344, 41 Am. St. Rep. 786, 26 L. R. A. 810.)
“Public policy, from sheer necessity, must require of a person or corporation using the current of elec tricity in high tension along highways a very high, if not the highest, degree of care.” (Snyder v. Wheeling Electrical Co., 43 W. Va. 661, 669, 28 S. E. 733, 64 Am. St. Rep. 922, 39 L. R. A. 499.)
“Very great care might be sufficient as to the wires at points remote from public passways, buildings, or places where persons need not go for work or business ; but the rule should be different as to points where people have the right to go for work, business, or pleasure. At the latter points or places the insulation or protection should be made perfect, and the utmost care used to keep it so.” (McLaughlin v. Louisville Electric-light Co., 100 Ky. 173, 193, 37 S. W. 851, 34 L. R. A. 812.)
“The business of supplying electricity to the residents of a city is so fraught with peril to the public that the highest degree of care which skill and foresight can attain, consistent with the practical conduct of the business, under the known methods and present state of its particular art is demanded.” (Denver Electric Co. v. Lawrence, 31 Colo. 301 [4th par. syllabus], 73 Pac. 39.)
“Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. The company, however, which uses such a dangerous agent, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to every one who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.” (Fitzgerald v.Edison Electric Co., 200 Pa. St. 540, 50 Atl. 161, 86 Am. St. Rep. 732.)
“Electric companies, of course, are not bound to have perfect apparatus or perfect construction, but they are required to exercises a degree of care and prudence in the construction and maintenance of their wires commensurate with the danger; and where their wires are designed to carry a strong and powerful current of electricity, so that persons coming in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence to prevent suchinjury.” (Perham v. Portland Electric Co., 33 Ore. 451, 478, 53 Pac. 14, 40 L. R. A. 799, 72 Am. St. Rep. 730.)
See, also, Thomas v. Electrical Co., 54 W. Va. 395, 46 S. E. 217; Daltry v. Electric-light etc. Co. Appellant, 208 Pa. St. 403, 57 Atl. 833; Geismann v. Missouri-Edison Electric Co., 173 Mo. 654, 73 S. W. 654; Harter v. Light and Power Co., 124 Iowa, 500, 100 N. W. 508; 18 Cent. Dig. c. 603; 10 A. & E. Encycl. of L., 2d ed., 887.
In the cases in which it is stated, or assumed, that a liability for damages occasioned by electricity arises only from the failure to exercise ordinary care, no consideration appears to have been given to the distinction noted, based upon its peculiar nature. The distinction is equally well grounded in reason and authority.. The course of the trial court in recognizing it is approved.
The judgment is affirmed.
All the Justices concurring. | [
-110,
120,
-36,
-82,
-54,
96,
58,
-38,
65,
-80,
-89,
115,
-99,
-53,
-99,
39,
-29,
127,
-48,
99,
-12,
-13,
7,
107,
-106,
-45,
19,
-123,
-79,
74,
116,
-49,
77,
40,
-54,
85,
102,
74,
81,
-46,
-50,
13,
42,
-31,
57,
16,
52,
120,
-108,
73,
81,
-102,
-29,
42,
24,
-57,
41,
46,
107,
-92,
-16,
121,
-102,
-57,
127,
22,
34,
38,
-100,
39,
-24,
28,
-104,
17,
8,
-20,
115,
-96,
-125,
-3,
37,
-87,
72,
-30,
98,
32,
1,
111,
-22,
-88,
46,
-50,
-113,
-89,
38,
40,
-117,
11,
-97,
-97,
2,
20,
7,
-2,
-14,
-35,
94,
100,
17,
-125,
-122,
-93,
-17,
-26,
-102,
-109,
-18,
-81,
52,
112,
-52,
-88,
92,
69,
114,
31,
-98,
-66
]
|
The opinion of the court was delivered by
Burch, J. :
The parties to an action in a district court agreed to transfer the cause to a court of common pleas which, in fact, had no legal existence because the law creating it had not been complied with. While the cause was supposedly pending in the common pleas court one of the defendants died. Two months later the plaintiff filed a motion in the district court for a redocketing of the case there. After the expiration of six months from the time it was filed this motion was denied. Sixteen months after the motion to redocket was denied a peremptory writ of mandamus was awarded requiring the district judge to enter the case upon the docket, and to proceed to hear and determine it. When six months more had elapsed a motion was made to revive the action against the heirs and representatives of the deceased defendant. This motion remained pending for two months, when the court denied it. No evidence in opposition to the motion was introduced, and the question now presented is whether, conceding the facts, sufficient cause in law was shown to defeat the motion.
Without a revivor an action abates upon the death of a party, and without a statute there can be no revivor. The statute reads:
“An order to revive an action against the representatives or successor of a defendant shall not be made without the consent of such representatives or successor, unless in one year from the time it could have been first made.” (Gen. Stat. 1901, §4883.)
This language is peremptory. It imposes an absolute prohibition upon the granting of an order after the lapse of a year from the time when it first could have been made. The right, by the terms of its creation, can endure but a year. The time element is an essential constituent of the right. When the year has expired there is no longer any right, and the status of the case is then the same as if there were no revivor statute. Analogies from the statute of limitations are not pertinent. That statute imposes limitations upon remedies; the revivor statute conditions the right. (Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620; Reaves v. Long, 63 id. 700, 66 Pac. 1030.) A party seeking its benefit must bring himself strictly within its terms.
The plaintiff in error insists that until the mandamus. proceeding had terminated there was no time within which an order of revivor could be made, because the case was out of the district court. This argument proceeds upon a false assumption. The case did not leave the district court. The agreement to transfer accomplished nothing, and the supposed removal was nugatory. The material portions of the writ of mandamus affected the conduct of the judge. The docketing of cases is a clerical, and not a judicial, duty. The direction that the action be entered upon the docket was formal only, and had no effect upon the status of the case, which at all times remained pending upon the docket of the district court. There fore, under the statutory permission to proceed at once, the district court could have made an order reviving the action immediately after the defendant’s death.
It is true that some eight months beyond the time when the action could have been revived the judge of the district court declined to acknowledge jurisdiction ; but the plaintiff did nothing within those eight months to protect his right to revive. Had he profitably employed his time, and moved to revive instead of to reinstate, he could have secured himself against an unpropitious disposition of his case. Having failed to improve his opportunities the erroneous decision of the court upon the question of jurisdiction amounted to no more than any other perverse fact working delay. The case was pending in a duly constituted court, whose action was not adversely dominated by any paramount power, and the plaintiff neglected available measures whereby he might have fortified himself against a destruction of his right by lapse of time. All statutes prescribing time limits for the institution or completion of proceedings are necessarily arbitrary, but that relating to revivor is especially unforbearing, and parties must so order their conduct that, notwithstanding disastrous circumstances, and “moving accidents by flood and field,” they may comply with it. Interruptions of the flow of the allotted time cannot be permitted “from reasons based on apparent hardship or inconvenience, but must rest upon some practical impossibility to sue. They are limited in their character, and are to be admitted with great caution, and only in cases of strict necessity.” (19 A. & E. Encycl. of L., 2d ed., 216.)
The judgment is affirmed.
All the Justices concurring. | [
84,
106,
86,
-98,
10,
32,
50,
-74,
64,
-85,
37,
115,
-19,
-126,
16,
63,
-14,
43,
85,
-5,
68,
-77,
23,
33,
115,
-77,
-48,
-41,
-11,
-17,
-10,
-34,
76,
48,
-126,
-43,
102,
-62,
-119,
-42,
6,
-114,
-103,
-20,
-63,
1,
48,
42,
86,
31,
53,
108,
-13,
42,
24,
-57,
73,
56,
91,
61,
-14,
-71,
-113,
-115,
47,
21,
-95,
-123,
-100,
-61,
120,
62,
4,
57,
16,
-24,
113,
-74,
-122,
116,
-53,
-103,
40,
34,
99,
-96,
69,
-19,
-120,
-72,
6,
10,
31,
-122,
-47,
24,
42,
101,
-74,
-101,
125,
52,
-89,
126,
102,
-44,
87,
-84,
10,
-118,
-106,
-77,
-113,
114,
-116,
-61,
-21,
35,
52,
116,
-51,
-32,
92,
99,
25,
-101,
-106,
-100
]
|
The opinion of the court was delivered by
Johnston, O. J. :
D. D. Reynolds, a teamster about sixty years old, had been engaged, prior to April 9, 1902, in hauling dirt with a mule team and lumber-wagon, at Coffey ville. His work required him to pass along Market street and across the track of the Missouri, Kansas & Texas Railway Company, which intersected that street. On each trip he crossed the railroad-track, first with a load and again when he returned with the empty wagon. On the day mentioned, when returning, empty, he undertook to pass over the railroad-crossing while standing upon the loose dump-boards on the bottom of his wagon, and when the front wheel struck the rail he was shaken off the wagon and injured. He brought an action against the railway company, alleging that his injury was the result of its negligence in not providing a suitable and safe crossing over its track ; that the boards at the crossing were worn, rotten, loose,-uneven, and insecure ; that the boards nearest the rails were worn away, and that when the front wheels of his wagon struck the railroad-track, which crossed the street diagonally, the wheel slid along the track, jarring the wagon and causing him to fall. The answer of the railway company was a general denial, together with the charge that the plaintiff was guilty of contributory negligence in standing upon the loose dump-boards on the wagon while passing over the crossing. The jury returned a general verdict in favor of the plaintiff, and also special findings of fact. Upon motion, the trial court gave judgment upon the special findings in favor of the railway company.
It- is manifest that this ruling was made on the theory that the negligence of the plaintiff contributed to his own injury. The jury found that on April 9, 1902, the crossing was in bad condition and had been in that condition for from four to six months before that time. It must be assumed that the company was negligent in not making a better and safer crossing, but the character and condition of the crossing were well known to the plaintiff. He testified that on the day previous to the one on which he was hurt he crossed the track at this point eighteen times, and twice on the day of his injury, and that for three or four years before that time he had crossed there frequently, was perfectly familiar with the crossing, and knew that its condition was bad. The jury found that his fall and injury were caused from the slipping of the wheel on the rail and the sudden rise of the wagon ; that the plaintiff'was familiar with the crossing and its condition at the time of his injury ; that the condition was bad, and such that he had to exercise great care to avoid injury, and that he had been familiar with the bad condition of the crossing for about three weeks before his injury.
The admissions of the plaintiff and the findings of the jury show that the plaintiff failed to exercise ordinary care for his own safety. To stand on the loose, narrow dump-boards of a wagon while driving along an ordinary highway is not free from danger, but to occupy that position when passing over a rough railroad-crossing was obviously unsafe. Manifestly, the sitting posture was the safer one, and this he should have taken. Taking an obviously perilous course one necessarily takes the risk, and must bear the consequences of his want of care. The crossing, as we have seen, had been in the same unsafe condition for months. He was familiar with its condition, and had been for weeks before the injury, and he necessarily knew the danger of crossing in the position which he took. In Artman v. K. C. Rly. Co., 22 Kan. 296, the plaintiff undertook to recover for an injury sustained while passing over an incomplete and dangerous crossing, and the court, in holding that his own negligence barred a recovery, remarked :
“He was familiar with the right of way; the railroad-track, and the dangers of crossing ; he knew that an empty wagon could scarcely be driven over with safety, and yet, with this knowledge, with his eyes •open as to the perils of trying to cross, he attempted to drive over with a hay-frame on his wagon, partially filled with hay and corn, and containing himself, three children, and Mr. Young. Undoubtedly he hoped and expected to cross in safety, but it was a dangerous experiment, and one which was exceedingly unfortunate to him. His misfortunes naturally excite sympathy, but give no legal claim in this kind of action for damages. He was so negligent of his duty to himself, so wanting in care and diligence in his conduct, that the law will not afford him the relief which he seeks.”
So, here, the plaintiff’s want of care contributed so largely to his misfortune and injury that no recovery can be had against the defendant, and therefore the judgment of the district court must be affirmed.
All the Justices concurring. | [
-14,
78,
-100,
-114,
26,
106,
42,
-38,
81,
-111,
37,
83,
-51,
-46,
9,
49,
-25,
61,
-48,
43,
116,
-77,
19,
-30,
-45,
-45,
115,
-49,
-109,
105,
100,
87,
77,
32,
10,
-43,
-26,
64,
-63,
28,
-50,
46,
-88,
-24,
91,
64,
-72,
58,
68,
95,
81,
-98,
-37,
42,
28,
-61,
44,
45,
-18,
33,
-47,
-15,
-78,
-123,
116,
22,
-125,
4,
-98,
7,
-40,
60,
-48,
53,
5,
-84,
115,
-92,
-105,
-12,
97,
-103,
77,
102,
99,
33,
21,
-91,
108,
-120,
46,
-42,
-113,
-89,
26,
25,
11,
7,
-65,
-107,
-62,
22,
6,
126,
-4,
93,
-43,
36,
3,
-117,
-74,
-13,
-17,
48,
-98,
103,
-37,
-83,
50,
113,
-52,
-78,
77,
5,
83,
27,
-97,
-104
]
|
The opinion of the court was delivered by
Cunningham, J. :
The assignment of error in this case is the granting of the motion of defendants below for judgment upon the pleadings, and rendering such judgment for defendants. The petition was one-in statutory form in ejectment, with a second cause-, of action for rents and profits. The answer pleaded, as justification for the defendants’ possession, a. sheriff’s deed, “which deed was duly executed and delivered” to defendants’ grantors, and was based, upon a foreclosure of two mortgages, the steps in which foreclosure action were set out in detail. The-reply specifically admitted the giving of the mortgages, by the plaintiff, the commencement of the foreclosure-action thereon, the due rendition of judgment of foreclosure, but denied the other allegations of the answer. The denial, however, was not verified. By way of avoidance of the validity of the sheriff’s deed, the reply further alleged that the plaintiff, Anderson Gray, was, prior to the rendition of the judgment of' foreclosure, convicted of the crime of murder in the-first degree and sentenced under such conviction, as. provided by statute, to be confined at hard labor in the penitentiary for one year and then to be executed, by hanging, upon the order of the governor issued therefor; that after the rendition of the judgment in-the foreclosure case, but before the issuance of the order-of sale, the sale thereunder, the confirmation thereof, and the execution of the sheriff’s deed under which-the defendants claimed, Gray was taken to the penitentiary and there confined during this time. He was-subsequently pardoned and restored to his civil rights..
The claim, in short, is that, by reason of his sentence and the imprisonment thereunder at the time of' the proceedings subsequent to the rendition of the-judgment in the foreclosure case, such proceedings were void and ineffectual to transfer the title of the-land in controversy from Gray to the purchaser at the sheriff’s sale, there having been no revivor of the-foreclosure action against Gray.
This brings us to the consideration of sections 337 and 338 of the code of criminal procedure (Gen. Stat. 1901, §§ 5775, 5776). Unless by the terms of these sections the judgment in the foreclosure case became dormant, the sale proceedings thereunder and the sheriff’s deed were and are good, and conveyed title. If, however, the judgment became dormant by reason of such sentence and imprisonment, then the sheriff’s sale and deed conveyed no title, no revivpr having been had. The sections referred to read as follow :
“Whenever any person shall be imprisoned under a sentence of imprisonment for life, his estate, property and effects shall be administered and disposed of in all respects as if he were naturally dead.
“Whenever any person shall be imprisoned in the penitentiary for a term less than his natural life, a trustee to take charge of and manage his estate may be appointed by the probate court of the county in which said convict last resided.”
By the terms of the statute (Crim. Code, §§ 258, 259; Gen. Stat. 1901, §§ 5703, 5704) the sentence imposed upon one convicted of murder in the first degree is that he suffer death, the same to be inflicted at a time appointed by the governor, not less than one year from the time of conviction, and until such time the convicted man is to be safely kept by the warden of the penitentiary.
Now, we think this sentence does not fall within the terms of either section 337 or 338. Clearly, the convict was not imprisoned under a sentence for life. His imprisonment might be for life, if his execution were not ordered, but his sentence was not for life. Nor was he imprisoned under a sentence for a term less than his natural life. The sentence was one of death. The detention in the penitentiary was something incidental to the sentence, and pending the carrying out thereof. It will not be contended that, were the sentence of death to be inflicted presently by the sheriff of the county, as provided prior to the enactment of the present law, the provisions of either of these sections would operate. The detention, however, of the condemned man would be no different in quality in the one case than in the other. These sections were the law long before the adoption of the present provision relative to the execution of one condemned to suffer capital punishment, and, of course, were not then applicable. Being in derogation of the natural rights of persons to hold and manage their own property, the sections must be strictly construed and their provisions extended n9 further than the clear import of their terms requires. -In this they are analogous to the case where a spendthrift is deprived by statutory proceedings of his natural right to manage his own property. (Smith v. Spooner, 3 Pick. 229; Jones v. Semple, 91 Ala. 182, 8 South. 557; Strong v. Birchard, 5 Conn. 357; Black, Const. & Interp. Laws, 300; Endl. Interp. Stat. §340; Suth. Stat. Const. §366; 26 A. & E. Encycl. of L., 2d ed., 661.)
We are aware that the case of Ashmore v. McDonnell, a Kansas commissioners’ decision, reported in 16 Pac. 687, not found in the Kansas reports, announces a view contrary to the above. In this case, however, it does not appear that the terms of the two sections quoted were critically considered. They certainly were not commented upon, either in the opinion or in the briefs of the attorneys in the case. It seems to have been assumed by the attorneys for both parties, as well as in the opinion, that the terms of one or the other of these sections applied to the estate of one convicted of murder in the first degree. The judgment of the commissioners in this case was reversed by this court in 39 Kan. 669, 18 Pac. 821, but upon a point which did not involve the consideration of the statute now under view. The court, however, did say, in a very incidental and subordinate manner, without discussion, and apparently without any consideration, that the commissioners’ decision would have been correct were it not for the matters discussed in its opinion.
It is also true that the court, in the cases of Seeley v. Johnson, 61 Kan. 337, 340, 59 Pac. 631, 78 Am. St. Rep. 314, and Manley v. Mayer, 68 Kan. 377, 396, 75 Pac. 550, in referring to the case of Ashmore v. McDonnell, assumed that the sentence there was one for life, and, hence, that the terms of section 337 applied, following in the wake of the assumption in that case, without discussion or thought.
We are convinced that the question now under consideration has never before received consideration by this court.
It may be urged that the need for the appointment of a trustee and the revivor of a judgment is as great where one is confined in the penitentiary pending his execution as though he were sentenced to the term of one or more years as punishment. That may be so, but if the statute, strictly construed, does not so provide, the discussion, so far as we are concerned, must end. The question is one for the legislature, and not the courts.
We hold that the confinement of Gray in the penitentiary under the sentence imposed did not cause the judgment of foreclosure against him to become dormant, nor require the appointment of a trustee, and, hence, that the proceedings under such judgment which ripened into a sheriff’s deed were valid and vested an indefeasible title to the land in the purchaser.
A point is sought to be made arising out of the denial in the reply of one of the deeds in the chain of conveyance from the purchaser at the sheriff’s sale. This claim is without merit, for it is admitted in the reply that Stewart is in possession claiming under the title derived by the sheriff’s deed. Therefore, having found the sheriff’s deed good, defendants are entitled to retain possession ; and, besides, the plaintiff must recover on the strength of his own title. Having been divested of that by the sheriff’s deed he cannot recover, even though the defendants have nothing but possession.
The judgment of the lower court is affirmed.
All the Justices concurring. | [
112,
124,
-39,
-84,
58,
-32,
-86,
-104,
74,
-96,
-74,
83,
105,
-54,
4,
105,
-10,
105,
117,
105,
69,
-78,
7,
-21,
-45,
-13,
-29,
-43,
-77,
-17,
-12,
-106,
12,
32,
-62,
117,
-26,
-128,
-57,
92,
-54,
-89,
-72,
100,
-7,
0,
52,
59,
68,
10,
85,
-113,
-29,
39,
17,
74,
105,
41,
75,
45,
-48,
-71,
-115,
-115,
-53,
3,
-77,
39,
-34,
-29,
-6,
42,
-112,
53,
1,
-8,
115,
-106,
-122,
-76,
73,
26,
44,
102,
98,
0,
77,
-17,
-8,
-104,
14,
126,
-115,
-90,
-111,
88,
8,
36,
-98,
-99,
124,
80,
6,
126,
-17,
-107,
29,
108,
13,
-114,
-42,
-105,
-51,
60,
-102,
-53,
-13,
35,
-80,
113,
-50,
-94,
92,
99,
91,
25,
-114,
-47
]
|
The opinion of the court was delivered by
Johnston, O. J.:
About three o’clock of the afternoon of July 25, 1908, the dead body of James Mc-Anarney was found in a well by his son, George McAnarney. At the conclusion of a coroner’s inquest George was accused of feloniously killing his father with a tin can, and the result of a second trial was his conviction of murder in the second degree. There was no direct testimony connecting the defendant with the death of his father, and it is earnestly contended that the circumstantial evidence produced was not such as to warrant the court in submitting the case to the jury, or in approving the verdict returned.
The deceased was about seventy years of age, had been estranged from his wife, who owned the farm, and was then living at the home of a neighbor. His wife, a very frail woman, and a daughter, Bessie, lived together on the farm, but for a few weeks before the homicide they had been at the home of George, assisting him during the harvest season. The deceased had visited his wife occasionally and importuned her to share her property with him and furnish him support. These were wrangling and unpleasant meetings, which injuriously affected his wife, who was suffering from heart disease. He called at the house the day before the homicide, and on the forenoon of the following day returned. George was in an adjoining field engaged with others in stacking wheat. Shortly before noon a boy, Willie McAnarney, ran out to the field and told George that Bessie had sent for him and to come at once. He did so, and found Mrs. McAnarney in a state of collapse as a result of a controversy with her husband. Just before George reached the house, James McAnarney left it, going toward the public road, and there was no testimony shqwing that he was afterward seen alive by any one. George sent a man to town for a doctor for his mother ; Dillon, a hired man, was sent for a neighbor woman two and one-half miles away, and then George came to the house and assisted in caring for his mother. Subsequently, he ate dinner, did some chores about the house, met and talked with a number of people who called there, and by his testimony undertook to account for himself until about three o’clock, when he went on horseback to the well to oil a windmill, and, upon looking into the well, discovered that his father was lying in the water, face downward. Without further examination he rode to an adjoining field and notified neighbors that his father had drowned himself, and then on about a mile and a half, and notified his brother Ed. of the death of his father. During this time he was crying and exhibiting much grief, which brought out the remark from his brother, “Well, you need not be crying. You are all glad of it, and I am damned glad of it.”
In the meantime his father’s body had been lifted from the well, and the only wound of any consequence was a puncture in the neck, apparently made with a blunt instrument. It was a ragged wound, about two inches wide and three inches long, the tissue being crushed, and the entire trachea destroyed, except the posterior wall. In the well was found part of a bloody handkerchief. When George returned he was told of the wound and condition of the body, and upon the suggestion of Bessie he went to town to send notices of the death to distant relatives, and to obtain stimulants for his mother. At the coroner’s inquest an examination of the conditions about the well was made, and finally one of the party discovered a bloody spot under a hedge about 213 feet from the well. At the same place there were found a small piece of a red handkerchief, which appeared to be a part of the one found in the well, a cane which the deceased had carried, and also an old tin can, split from the top, the cane and the can both being bloody. These were found under a heavy, rank hedge growing on the side of the highway, the overhanging limbs being only about two feet from the roots, and extending out seven or eight feet, the ends touching the ground, and forming a complete canopy over the spot. Between the spot and the well were another hedge, in which there was an opening about eighteen inches wide, interlaced with weeds and twigs, and a wire fence ; the well was within a wire enclosure. At the spot there was a little blood found on the foliage, the weeds were somewhat bent and broken, but there was little, if any, evidence of a struggle under the hedge. Although diligent search was made, no blood was found between the hedge and the well, or about the platform of the well. No indications were found of the dragging of a body under the wire fences, and it did not appear that the clothing worn by George, or that upon his father, had been born.
There is a mystery about the death of McAnarney which is not satisfactorily solved by the evidence in the record. Was it a case of homicide or suicide? The defendant contends that the circumstances developed point most strongly toward self-destruction. Attention is called to his age and homeless condition, his estrangement from his wife and the hostility existing between them, his knowledge that his interview and action had caused her to faint and collapse ; that seeing them hurry messengers for a doctor and to secure the assistance of neighbors it probably occurred to him that she was about to die, and that his misconduct would be the cause of her death. Full of self-reproach, as well as discouragement and despair, lie crept under the heavy hedge, and, having no weapon with him, found the split can, and undertook to end it all by cutting his throat. Failing to sever any of the main arteries or veins, and thinking the process too slow, he made his way to the well and dropped into the water. This is said to be altogether more probable than that George, who had no motive to kill his father, should have taken his life.
The theory of the state is that the deceased’s conduct toward his wife irritated and angered George, and that when he came into the house and learned that his mother had collapsed and was supposed to be dying, and heard that it was the result of something said or done by his father, and being told by his mother that the father should be punished, he undertook to punish him and to carry out a threat said to have been made a year before, that if the father continued to come around he would put him where he would not again bother them; that after his mother had recovered somewhat, and, seeing his father over at the hedge, he went there, crawled under the hedge, attacked and killed him with the tin can that chanced 'to be lying there. Later, he concluded to give the case the appearance of suicide and so returned to the place, thrust his handkerchief into the wound to prevent the dripping of blood, carried or dragged the body through the fences to the well and threw it in. Afterward, he made an excuse of oiling the windmill, that he might discover and announce the so-called suicide of his father. The alleged threats of punishing the father, and the claim that he had a handkerchief like the one found in the well, the demand made at the inquest that he be given a fair show, before á charge had been made against him, some inconsistent and incriminating statements said to have been made by him, and the further claim that some blood had been found on his trousers, are referred to as tending to sustain the theory of the prosecution.
In behalf of the defendant it is said that there was an entire absence of motive to kill his father. There was no property to be inherited, and nothing to be gained by his father’s death. Although there had been a disagreement between them a year or so before, he had since visited his father when sick, and even as late as the Sunday preceding his death, and during all this time their relations were not unfriendly. He accounted for his whereabouts between the time that his father left the house until the body was found in the well, and there were many people about to observe his movements. The public place chosen and the awkward and ineffective weapon, he says, negatives the theory of the state. Inquiry is made, if he was going to kill his father, Why did he select a place on the public road where people were passing and re-passing ? Why did he not use a knife, which he had in his pocket, or some other' weapon than a battered tin can ? Why would the father lie under the hedge while George crawled in to attack him ? And why was there no evidence of a struggle, no blood on the foliage, and none on George's clothing? It is said that, if George had killed his father, and if he had dragged the body from the hedge through or under the fences to the well, there would have been a well-defined track and indubitable proof of it. It is said that it is an impossibility for him to have killed his father with the can and carried the body for more than seventy yards, without distinctly marking himself and the course taken to the well, and quite impossible to have done so without attracting the attention of some of the many persons who were about the premises at the time.
There are circumstances in the case which, to the court, seem quite inconsistent with the guilt of the defendant. It is not easy to discover a motive for the killing, nor to find satisfactory evidence that the defendant was connected with the death of his father. In the evidence, however, may be found some circumstances pointing toward the defendant, and we cannot say that they were insufficient to go to the jury, or that they did not tend to establish some degree of the offense charged. To undertake to weigh them would be an invasion of the province of the jury.
One of the claims of error is that the court declined to instruct the jury upon two degrees of manslaughter, which are included in the offense charged. The law with reference to murder in the first and second degrees, and of manslaughter in the second and third degrees, was given, but the court refused to®advise the jury respecting the first and fourth degrees of manslaughter, and the refusal was based on the reason that the evidence did not warrant such instructions. In this we think there was error. It was a casejwhere it was important to instruct upon every^ degree of homicide for which there was any supportjderivable from the evidence. If it be assumed that there was a homicide, there was no eye-witness of it, and no one-even saw the father and son come together where it-occurred. Whether the defendant met his father-casually or purposely, what was said or done by either before the conflict came on, who was the aggressor in it, whether the defendant went there to reprove or to-kill, and the state of the defendant’s mind at the time,, must all be deduced from circumstantial evidence-alone. In such cases much is left to inference, and-where the circumstances in evidence afford ground for an inference of a lower grade of homicide the-court cannot safely refuse to instruct in such lower degree. So it has been repeatedly held that if there-is slight evidence of a lower degree of an offense, although it may appear to the court to be weak and unsatisfactory, the question should be submitted to the-jury, and a court is only justified in refusing to charge-the jury on the lower degree of homicide when the testimony shows beyond question that the defendant, is guilty of the higher offense. (The State v. Patterson, 52 Kan. 335, 34 Pac. 784; The State v. Kornstett, 62 id. 221, 61 Pac. 805; The State v. Buffington, 66 id. 706, 72 Pac. 213; The State v. Moore, 67 id. 620, 73 Pac. 905; The State v. Clark, 69 id. 576, 77 Pac. 287; The State v. Knoll, 69 id. 767, 77 Pac. 580.)
The statute provides :
“The killing of a human being, without a design to-effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any- crime or misdemeanor, not amounting to a felony, in cases-when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.” (Crimes Act, § 12; Gen. Stat. 1901, § 1997.)
In The State v. Spendlove, 47 Kan. 160, 28 Pac. 994, this section was interpreted, and it was held that the act or offense which the accused commits, or attempts to commit, at the time of an unintentional killing includes assault and battery, and that intentional violence to the person is not excluded. If, therefore, without any design to effect death, George attacked his father, intending only to commit an assault and battery upon him, and in the use of the tin can which he chanced to pick up he unintentionally killed him, it would fall within the section quoted and constitute manslaughter in the first degree. The slight evidence of motive to kill and the character of the weapon used give some support to this theory. Since there was no direct evidence as to the facts attending the killing, the court cannot assume to decide what the facts are. The manner of the killing and the purpose of the defendant at the time are necessarily questions for the jury. Did not the jury have the right to infer that George met his father at the hedge, and, intending only to administer punishment which would prevent future interference with the mother, committed assault and battery upon him without intending to kill him or perpetrate any felony? Is not the case as open to this inference, as that there was premeditation in the killing ? The court rightly instructed as to the elements of murder in the first degree, including premeditation, and he also presented the law of excusable and justifiable homicide. In these matters the court did not assume to decide whether there was evidence of premeditation, malice aforethought, or facts which would justify or excuse the killing, but left them to the jury ; and there was no more reason for the court to decide that no facts existed from which the jury might infer that the offense was manslaughter in the first degree.
The elements of manslaughter in the fourth degree were also present, and the jury should have been instructed with reference to the law of that degree. Counsel for defendant pertinently inquired, Did George and his father meet at the hedge and engage in a quarrel, and did George kill him in the sudden heat of passion? Did they engage in a fist fight, and did George crowd the father over onto the old tin can, and by falling on the tin can receive the wound from which he died? Is it not open to inference that they were engaged in a fight, and that in the course of the struggle the father was thrown or forced upon the jagged' edge of the tin can lying there and involuntarily killed, George having no knowledge of the presence of the can, and no intention to either strike or wound the father with the can? If this were done by him in the heat of passion, and the assault was not justifiable, it would be difficult to say that a conviction of manslaughter in. the fourth degree was without- support. The circumstantial testimony, indefinite and uncertain as it was, required instructions under sections 26 and 27 of the crimes act (Gen. Stat. 1901, §§2011, 2012), giving the jury an opportunity to determine whether or not the defendant was guilty of manslaughter in the fourth degree.
Complaint is made of the admission of testimony of Doctor Stewart, an expert witness. He made an examination of the trousers worn by George McAnarney on the day of his father’s death and stated that he found some corpuscles of blood on them. The result was obtained by cutting portions of the garment upon which there were spots, macerating them, and making a chemical and microscopic examination of the mixture. He found a minute particle of blood, but was unable to say that it was human blood. It was an ex parte examination, and none of the elements in- eluded iu it were preserved. There was no attempt to preserve the blood obtained, nor the solution in which it was found, and even the microscopic slides were destroyed. Under these circumstances there was little opportunity to test the efficiency of the expert or the truth of his report. A more serious objection, however, is that there is no assurance that the trousers were in the same condition when examined as when, last worn by the defendant. They were delivered to the officers and put into a gunny-sack, together with the bloody hat and clothing found on the deceased, and there were also placed with them the bloody tin can and cane found at the place of the supposed homicide. So bundled together, the articles were carried over the country for miles, while the officers were driving about subpoenaing witnesses. After being kept with the bloody clothing for some time, and after the preliminary examination, the trousers were examined for blood corpuscles, and it would have been strange, indeed, not to find some, although they had been entirely free from any blood when placed in the sack. Two things are essential to the admission of such evidence : First, the identity of the thing analyzed or examined with that which is the subject of inquiry; and second, that it has not been tampered or interfered with between the time when its condition became a question and the time of the expert examination. (The State v. Cook, 17 Kan. 392; State v. Garrington, 11 S. Dak. 178, 76 N. W. 326; State of Iowa v. Hossack, 116 Iowa, 194, 29 N. W. 1077; Underh. Crim. Ev. §318; Rog. Exp. Test., 2d ed., § 57; Wharf. Crim. Ev. §423.)
The case of State v. Garrington, supra, is somewhat analogous to this one. Cloth was cut from the pocket of the overalls worn by the deceased at the time he was killed. The pieces were cut from the overalls several weeks after the crime was committed, and an examination made by an expert, who testified that they contained blood-stains, but he was not able to say that the stains were caused by human blood. The purpose of the evidence was to show that the person who did the killing had rifled the deceased’s pockets with bloody hands, and it was held that the time when the pieces were taken from the overalls and the manner in which the articles were handled created so great uncertainty as to what caused the stains as to deprive them of any evidentiary value.
It was highly important that the trousers of defendant should have been carefully kept, and, since blood was the object of the test, that they should have been kept entirely apart from blood or bloody articles. As they were in contact with the bloody articles and shaken together as the officers traveled for hours across the country, the result of the expert’s examination proved nothing as to the condition of the trousers when they were laid off by the defendant. It was the action of the officers of the law, not of the defendant, that rendered the proof valueless. 'There is no claim by any one that the trousers were purposely interfered or tampered with, but the inadvertent or accidental interference with them is just as destructive of the accuracy and fidelity of the expert examination as if it had. been intentional. Truth is the object of rules of evidence, and justice the object of judicial inquiry, but a rule allowing the result of such a test as against one on trial for murder would be more than likely to attain untruth and injustice. The contact and interposition of foreign matter made it impossible for the defendant, by any test or examination, to show the former condition of the trousers with respect to blood. It is unnecessary to determine whether the ex parte examination, the destruction of the solution as well as of the blood found, rendered the evidence incompetent, but because the trousers examined were interfered and tampered with, the reception of the testimony and submission of the same to the jury must be regarded as prejudicial error.
Testimony was received in regard to a shirt found outside and near the defendant’s house on the day after the alleged homicide, and on portions of which there appeared to be a pasty stuff of a reddish cast. Attention was specifically called to this testimony in the charge of the court. The shirt was not the one shown to have been worn by the defendant at the time in question, nor to have belonged to him. It was found after the post mortem examination, and after crowds of people had been about the premises for hours, but where it came from, how it came to be there, and what afterward became of it, do not appear. The shirt worn by the defendant was identified and produced at the trial, but the other one was not kept, nor introduced as evidence. The connection between the shirt and the defendant, or between it and the supposed homicide, was not sufficiently shown to make the testimony respecting it admissible. The pasty stuff which stiffened portions of the shirt was not shown to be blood, nor was there any critical examination made of it. The instruction of the court respecting the shirt gave the testimony sanction and. importance, and it may therefore have had considerable weight in the minds of the jury.
Other questions have been discussed, some of which are unimportant, and others of them may not again arise in the case. For the errors mentioned, the judgment is reversed, and the cause remanded for another trial.
All the Justices concurring. | [
48,
104,
-67,
-115,
42,
96,
106,
-40,
84,
-77,
-80,
-9,
-117,
-53,
13,
97,
58,
127,
-44,
105,
-28,
-73,
23,
96,
-101,
-13,
-31,
-59,
51,
-20,
-18,
127,
77,
32,
10,
93,
-26,
10,
-63,
-41,
-114,
5,
-23,
-13,
90,
16,
52,
123,
86,
15,
5,
-114,
-29,
42,
30,
-2,
41,
44,
75,
47,
80,
96,
43,
-123,
-3,
20,
-111,
-94,
-98,
-95,
-40,
30,
-39,
53,
2,
-8,
50,
-124,
-105,
-11,
15,
-119,
44,
118,
-62,
33,
-51,
-21,
-96,
-7,
47,
-2,
-99,
39,
30,
81,
109,
96,
-105,
-3,
58,
112,
14,
120,
-11,
-35,
92,
100,
64,
-113,
-106,
-95,
73,
56,
-98,
56,
-53,
-89,
34,
113,
-51,
-70,
77,
-60,
120,
-103,
-98,
-112
]
|
The opinion of the court was delivered by
Atkinson, J.:
In the district court of Cowley county John R. Harmon was convicted of keeping a gaming-house, and sentenced to the penitentiary. From the judgment of conviction he appeals to this court. Among other witnesses sworn and examined at the preliminary hearing was one J. R. Lumpkin. Upon the trial of the case in the district court it was shown that Lumpkin was out of the state. It was also shown that no official stenographer had taken his testimony upon the preliminary hearing, and that the state was not in possession of stenographic notes . or a transcript of his testimony. One O. S. Beekman, who represented the state at the preliminary hearing, was called and sworn as a witness on behalf of the state, and, over the objection of appellant, testified to his recollection of the testimony given by the witness Lumpkin. Beekman testified without notes to refresh his recollection. Upon the admission of this testimony error is assigned. The appellant claims that it was a denial to him of his constitutional right to meet the witness face to face at the trial of the case in the district court.
In The State v. Nelson, 68 Kan. 566, 75 Pac. 505, an appeal from a conviction for manslaughter, error was assigned that the prosecution was permitted to introduce in evidence the testimony given by a witness at a former trial of the same case, the witness having left the state and being beyond the process of the court. In the Nelson case, as in the case at bar, it was claimed by appellant that it was a denial of the constitutional right of the accused to meet the witness face to face. It was held that the constitutional provision had been complied with, the accused having already been confronted with the absent witness at a former trial of the case. Many cases were cited in support of the views therein expressed. It was stated that the rule should be the same whether the absent witness be dead or beyond the jurisdiction of the court. It is sought, however, to distinguish the Nelson case from the case at bar in that the testimony of the absent witness in the former case, and in the cases therein cited with approval, was preserved in the official stenographer’s notes, or otherwise, and referred to, or used, while in the case at bar the testimony of the absent witness was offered only through the medium of the recollection of the witness Beekman, whose recollection the appellant claims was faulty.
It appears from the record that the state used the best means at its command to obtain the testimony of the absent witness. The witness Beekman, in the presence of appellant, testified that he remembered the substance of the testimony of the absent witness, and proceeded to state it. He was subjected to a rigid cross-examination by counsel for appellant. The correctness of his recollection might have been disputed. The credibility of the witness Beekman, and the weight to be given his testimony, was a question for the jury. The fact that the testimony of the absent witness was not preserved in writing, but was produced only from the recollection of the witness Beekman, unsupported by notes to refresh his recollection, does not distinguish the case at bar from the Nelson case. It being conceded that the constitutional provision had been complied with when the accused met the witness face to face on the former trial, which is the effect of the Nelson case, the competency of the testimony is then governed by the rules for the admission of evidence in civil cases. The use of stenographic notes is not necessary. It is sufficient if the substance of the testimony of the deceased or absent witness be given by one who heard it. (The State v. Fitzgerald, 63 Iowa, 268, 19 N. W. 202; Summons v. The State, 5 Ohio St. 325; State of Iowa v. Mushrush, 97 Iowa, 444, 66 N. W. 746; State v. O’Brien, 81 Iowa, 88, 46 N. W. 752; Rivereau v. St. Ament, 3 G. Greene, 118; The State v. Able, 65 Mo. 357; State v. Jones, 29 S. C. 201, 7 S. E. 296; State v. Hooker, 17 Vt. 658; Marler v. State, 67 Ala. 55, 42 Am. Rep. 95; Ruch v. Rock Island, 97 U. S. 693, 24 L. Ed. 1101.)
It appears from the record that the appellant was arrested on the same day on which the complaint was made and the warrant issued. The warrant, in addition to commanding the officer to arrest appellant, directed him to seize and keep all gambling devices found. This the officer did. Upon the trial of the case, over the objection of appellant, witnesses were permitted to state and describe what gambling devices were found in appellant's possession, at the time of his arrest, in the place described in the information. The appellant claims that this testimony tended to establish his guilt of an offense occurring after the complaint and warrant had issued, and was not competent evidence to establish the specific offense with which he was charged.
Upon that feature of the case the court instructed the jury, in substance, that this evidence had been admitted only for the purpose of showing that the property in question was in the possession of appellant, and that it should not be considered for any other purpose ; that appellant could not be convicted upon any evidence tending to show that he was the keeper or owner of the place, or that the place described in the information was a gaming-house, after the time of the issuing of the warrant. The giving of this instruction is assigned as error. If it might be said that to admit the testimony complained of was error, clearly it was not prejudicial to the appel lant, when considered and applied by the jury as directed in the instruction. The instruction given cured the error, if any, in the admission of the testimony. The court committed no error in giving the instruction.
The state challenged the sufficiency of the record. The record discloses the fact that the appellant asked, and was given, time to prepare and present a case-made for the supreme court instead of a bill of exceptions. However, a bill of exceptions, and not a case-made, was prepared and presented within the time given. The bill of exceptions presented was by the trial judge allowed and signed as a bill of exceptions within the specified time. The term “case-made,” as used in the first instance, was evidently a clerical error, and should be disregarded, the proceedings on appeal having been regular and upon a proper bill of exceptions.
No error being found in the record, the judgment is affirmed.
All the Justices concurring. | [
48,
-24,
-20,
-97,
42,
96,
34,
-66,
98,
-93,
114,
83,
41,
82,
1,
121,
51,
31,
85,
104,
70,
-73,
23,
105,
-126,
-13,
-55,
-41,
-79,
-53,
-12,
-41,
76,
48,
-54,
-43,
-26,
-56,
-121,
80,
-114,
5,
-87,
-32,
90,
2,
48,
41,
50,
87,
113,
62,
-13,
42,
86,
-57,
-23,
41,
79,
-81,
64,
-80,
-102,
-113,
77,
4,
51,
54,
-102,
5,
120,
60,
-104,
49,
-64,
-4,
115,
54,
-122,
-11,
107,
-103,
40,
110,
99,
49,
-4,
-19,
40,
-125,
47,
55,
-99,
-89,
-110,
72,
43,
13,
-108,
-35,
119,
116,
14,
-20,
-17,
69,
25,
108,
9,
-49,
-74,
-79,
-81,
60,
-126,
123,
-29,
3,
16,
113,
-52,
-14,
85,
102,
121,
-101,
-49,
-68
]
|
Per Curiam:
Under the decision rendered at the present session of the court in the case of The State v. Bowles, ante, p. 821, the indictment in this case was properly signed.
Under the authority of The State v. Crilly, 69 Kan. 802, 77 Pac. 701, the record relating to the presentment of the indictment is sufficient.
The indictment is sufficient in substance, and the judgment of the district court quashing it is reversed, and the cause remanded. | [
-76,
-3,
-11,
-35,
10,
96,
50,
-78,
105,
-79,
103,
115,
47,
-125,
20,
121,
-21,
107,
80,
123,
-59,
-74,
63,
73,
-42,
-77,
-7,
-41,
-73,
-19,
-89,
-2,
76,
-16,
74,
85,
70,
-54,
-127,
28,
-54,
9,
-88,
-12,
104,
-118,
52,
35,
80,
15,
113,
-1,
-29,
58,
22,
67,
-87,
44,
91,
63,
66,
-96,
-116,
5,
127,
6,
-77,
-90,
-108,
-57,
-40,
46,
-100,
49,
1,
120,
122,
-122,
70,
-42,
41,
121,
-128,
98,
98,
51,
-112,
-51,
-84,
-36,
55,
126,
-115,
-89,
-101,
89,
-23,
-87,
-105,
-99,
117,
50,
7,
108,
-19,
-59,
63,
108,
11,
-114,
-92,
-77,
22,
124,
22,
98,
-21,
5,
16,
64,
-59,
-26,
92,
67,
24,
-101,
-114,
-74
]
|
The opinion of the court was delivered by
William R. Smith, J. :
(1) The testimony respecting the consideration for the $2600 mortgage executed by Henry Breitkreutz, sr., to his son satisfies us that the referee was justified in finding it to be fraudulent «,s against the creditors of the mortgagor. While the testimony might have supported a conclusion that part of the consideration passed from the mortgagee to the mortgagor, yet beyond this the showing made by the parties to the instrument was far from satisfactory. If the mortgage was fraudulent in part it was void in toto. (Wallach v. Wylie, as Sheriff, 28 Kan. 138.)
(2) The admission in evidence of the note held by the plaintiff below did not affect the substantial rights of defendants, although it was merged in the judgment. A copy of the note was attached to the petition as an exhibit. Its execution was admitted by the pleadings.
(3) The judgment against Henry Breitkreutz, sr., was properly received. It was a necessary prerequisite to sustaining the action. (Tennent v. Battey, 18 Kan. 324; Harrison v. Shaffer, 60 id. 176, 55 Pac. 881.)
Plaintiffs in error are not in position to avail themselves of the alleged error in admitting in evidence the entire record, including the proceedings in attachment in the case of National Bank of Holton against Henry Breitkreutz, sr. The papers in the case were received by the referee subject to objection. The •question of their competency was expressly reserved for further consideration, but the attention of the referee was not thereafter called to the matter. The practice of receiving evidence conditionally is not uncommon in trials before the court or a referee and, when so admitted, the question of its competency must be raised at some later stage of the case, and passed on, before its reception will be held to be erroneous.
(4) Four of the specifications of error relate either to the admission or rejection of evidence. Reference is made in the brief to pages of the record on which the evidence may be found. This does not comply with, rule 10 of this court, which provides that, "when the error alleged relates to the admission or rejection of' evidence, the brief shall quote the full substance of the evidence admitted or rejected.”
(5) Counsel for plaintiffs in error submitted to the-referee eighteen questions to be answered by him. All but three called for an affirmative or negative response to be answered "yes” or "no.” The interrogatories were in effect a cross-examination of the-referee. Referees are required to state the facts, found and the conclusions of law separately. A trial before a referee is conducted in the same manner as a. trial by the court. (Gen. Stat. 1901, §4740.) In trials by the court conclusions of fact must be stated, in writing separately from conclusions of law, when findings are requested. (Gen. Stat. 1901, §4737.) There was no error committed by the referee in refusing to answer the questions
There was also a request from counsel for plaintiffs-in error for the referee to make twelve conclusions of fact conforming to their views of the facts established by the evidence. In two of these proposed findings-blanks were left to be filled, and several of them were-in contradiction of the facts found by the referee.. When rejected the exception was general to the motion denying the request. Even if some of the findings should have been made, no question was thus-saved for review. The same rule is applicable to a. set of additional findings thereafter requested to be-made by the referee on behalf of the complaining defendants. The exception to their refusal was general. It is sufficient to refer to the language of two or three-of them as follows :
"Henry Breitkreutz testified that he was seventy-three years old, etc. . . . That he owed no debts- of his own only that which he was surety for.” “Herman Breitkreutz testified that all the money turned over to John Q. Myers was used in paying notes upon which his father, Henry Breitkreutz, was surety,” etc.
It is obvious that such findings were properly rejected.
(6) There was no allegation in the petition that defendants Henry Breitkreutz, sr., and Fred Breitkreutz, the judgment debtors, were insolvent at the time the alleged fraudulent mortgage was executed. The charge of insolvency related to the time the petition was filed. Before the suit was begun a general execution was issued on the judgment against the property of the debtor and returned unsatisfied. This fact was alleged in the petition. In jurisdictions where creditors’ suits of this nature may be maintained without the issuance of an execution, it is necessary to allege insolvency. The return of an execution nvlla bona under our practice gives the judgment creditor a standing in the courts to set aside conveyances which tend to defeat the collection of his judgment. (5 Encyc. of Pl. & Pr. 565, 566; Daskam v. Neff and others, 79 Wis. 161, 47 N. W. 1132; Page & Co. v. Peter Grant et al., 9 Ore. 116; 12 Cyc. 24, and cases cited.)
It is objected that plaintiff below had an adequate remedy at law against Rachel N. Breitkreutz, the holder of the legal title, for that the land in controversy might have been sold under a special execution, free from any claim of hers. The case of Taylor v. Lander, 61 Kan. 588, 60 Pac. 320, is relied on. In that case it was sought by a creditor’s suit to set aside a deed executed by the judgment debtor after the land had been attached, the attachment sustained, and judgment rendered. It was held that a creditor’s suit would not lie to set aside a deed to land which the judgment debtor conveyed after the land had been attached ; that there was an adequate remedy by special execution to sell the property standing in the name of the grantee who took title subject to the attachment lien. That case was not complicated by encumbrances on the land prior to the judgment sought to be enforced. Here the right of plaintiff below to maintain the action was not challenged by demurrer or objection to the introduction of evidence. The point now made was not raised until after Rachel N. Breitkreutz had answered, claiming affirmative relief as against plaintiffs, asserting that the land when conveyed was the homestead of her grantor. We are not disposed to extend the doctrine of Taylor v. Lander to cases not clearly within the facts on which the decision was based.
We have given consideration to other errors assigned but find nothing to justify a reversal of the judgment. We think the referee and the court below arrived at a just result.
The judgment is affirmed.
All the Justices concurring. | [
-80,
-20,
-88,
-2,
74,
-32,
40,
-118,
73,
-95,
-93,
114,
109,
-62,
20,
45,
-74,
57,
-48,
106,
70,
-78,
55,
-61,
-46,
-78,
-6,
-43,
-79,
-4,
-12,
29,
76,
40,
-30,
-43,
102,
-120,
-59,
82,
-114,
-123,
56,
-59,
-3,
64,
52,
51,
-106,
77,
5,
-98,
-29,
42,
29,
79,
105,
40,
75,
105,
-16,
-15,
-102,
-115,
79,
5,
-77,
118,
-100,
71,
88,
42,
-104,
49,
1,
-8,
112,
-74,
-110,
116,
107,
43,
8,
110,
98,
32,
93,
79,
-8,
-104,
38,
125,
-99,
-90,
-109,
73,
11,
33,
-74,
-35,
124,
16,
38,
-4,
-17,
29,
25,
108,
3,
-117,
-10,
-77,
-97,
116,
-102,
11,
-14,
-125,
-112,
113,
-51,
-32,
92,
68,
88,
-103,
-98,
-67
]
|
The opinion of the court was delivered by
Cunningham, J.:
The only assignment of error in this case is that the verdict is not sustained by the evidence. The defendant in error insists that we cannot look into this for the reason that the record does not show that all of the evidence is preserved. There is no specific averment to that effect found in the record. Introducing the trial of the question of fact the record contains this: “Thereupon, to maintain the issues on his part, the plaintiff introduces his evidence as follows.” Then follows the testimony given by a named witness, at the close of which the witness was excused. Following immediately in the record is this : “Thereupon (another named witness) is called as a witness on behalf of the plaintiff and . . . testifies as follows.” This formula is used through all of the testimony on behalf of the plaintiff, and at its olose is found this: “Thereupon the plaintiff rests, and to maintain the issues on his part, the defendant introduces his evidence as follows.” The same formula is used in introducing each of defendant’s witnesses, and at the close of all the evidence is found : ^‘Thereupon both plaintiff and defendant rest,” which is followed immediately by this: “Thereupon the court instructs the jury as to the law in this case.”
It appears from all of this that the proceedings were connected and continuous, and it excludes the idea that any evidence was produced not found in the record. We think that where it fairly appears from all of the recitals of the record that all of the evidence is there found an explicit statement to that effect need not be incorporated. It would be, perhaps, the better practice explicitly to state the fact so as to exclude all doubt, but we think under the recitations of this record that the fact is fairly inferable, and the record sufficient to present the point.
The action was one to recover the price of a certain number of hogs belonging to the plaintiff below, which it was claimed the defendant below, plaintiff in error here, had converted to his own use. A sharp conflict in the evidence between the parties is found. The question presented here and below upon the mo tion for a new trial, as shown by the record, and. stated in the brief, is as follows :
“The only contention made by the defendant was-that the evidence did not justify the verdict rendered ; that if the weights and sizes of hogs were as claimed by plaintiff, the verdict should have been for much-more than it was, and if weights and sizes of hogs-were as claimed by the defendant the verdict was for-much more than it should have been ; that the jury had no right to arrive at any weights or sizes intermediate to the claims of the parties; as shown by the-evidence.”
It is now claimed that because the verdict did not-respond to the estimate of either of the witnesses, it is not sustained by any evidence. This is a case not of lack of evidence, but of conflict of testimony. In such a case it is the peculiar province of the jury to arrive at what may seem to tHem, from all of the evidence,, a just verdict, and in so doing they may call upon, their own experience and general knowledge (Missouri River R. R. v. Richards, 8 Kan. 101; Craver v. Hornburg, 26 id. 94), and may well take into consideration the peculiar interest of any witness in the matter concerning which he testifies. The jury may say that this witness, incited thereto by his interest, has made his estimate of value, weight or size too high, or this one too low, and that the more correct estimate lies in a mean between them.
We discover no error in the record, and the judgment is affirmed.
All the Justices concurring. | [
-32,
-4,
-52,
-67,
42,
96,
42,
-56,
65,
-127,
119,
83,
-19,
-61,
20,
115,
-74,
109,
84,
34,
94,
-77,
6,
-61,
-14,
-10,
-14,
-44,
53,
-18,
-18,
92,
12,
48,
-126,
-43,
102,
74,
-57,
82,
-114,
-100,
-72,
-49,
-7,
32,
52,
59,
-10,
79,
113,
-105,
-29,
42,
24,
-57,
105,
41,
107,
57,
64,
-16,
-114,
-115,
77,
0,
-77,
55,
-66,
14,
-40,
46,
16,
49,
1,
-8,
115,
-74,
-126,
-12,
41,
-71,
8,
98,
98,
33,
77,
-17,
56,
-104,
63,
46,
12,
-89,
18,
72,
73,
77,
-74,
-35,
116,
80,
6,
126,
-28,
21,
92,
100,
11,
-113,
-106,
-71,
-53,
124,
-70,
105,
-37,
-95,
16,
112,
-51,
-24,
92,
101,
90,
-111,
-97,
-97
]
|
The opinion of the court was delivered by
Johnston, O. J. :
James Higgins brought this action against the Atchison, Topeka & Santa Fe Railway Company to recover damages alleged to have been sustained through the negligence of the company. At the first trial he secured a verdict of $25,-000, but the court, deeming the award to be excessive, set the verdict aside and granted a new trial. At the second trial, and at the close of the evidence presented on behalf of plaintiff, the court sustained a demurrer to the same, and gave judgment for defendant.
Higgins was employed by the company as a brakeman and had been in its service two months prior to the time he was hurt. On the night of September 18, 1901, a freight-train ran into Florence, manned by a crew composed of an engineer, a fireman, a conductor, a rear brakeman, named Herrod, and Higgins, who was acting as head «brakeman. Several cars were to be picked up there and put into the train. The conductor, having business at the office, turned the switch list over to the rear brakeman, from which he selected the cars to be taken, and with the help of Higgins .he proceeded to make up the train. Two cars were selected, and in order properly to place them in the train it became necessary to put them on different tracks. Herrod cut one car loose and signaled the engineer to kick it in on track No. 2. When the kick was given and Higgins was about to mount the car for the purpose of stopping it at the proper place, Herrod said, “Let her roll,” and in obedience to this direction Higgins did not accompany the car. It was pushed down on track No. 2, but its momentum was not sufficient to carry it far enough to •let the next car pass safely in on track No. 3. Her-rod then cut off the second car, went down and opened the switch for track No. 3, and directed that the car should be kicked in on that track. When the kick was made, he in effect directed Higgins to climb up on the car and “spot it” — that is, to ride it down and set the brake when it reached the proper place on track No. 3. The expression he used was, “There it is; catch it.” Following the direction Higgins started to climb the moving car, but before he reached the top he was struck by the car on track No. 2, knocked down, and the backing engine ran over him, cutting off both of his legs. The car on track No. 2 was not “in the clear” — that is, it was not pushed far enough down to allow the other car with a man climbing up the side thereof to pass safely in on track No. 3. Herrod was at the switch, near the misplaced car; Higgins was about seventy feet away when it stopped, and the same distance away when the other car which he attempted to ride was kicked down — too far to be able to see that the first car was not “in the. clear.” The night was dark and*each of the men carried a lantern.
The negligence relied on for a recovery was the failure of Herrod, who was in charge of the switching operations, to see that the car on track No. 2 was “in the clear” before the other car, which Higgins was directed to climb, was kicked down. No negligence was attributed to the engineer or other employees.
The theory of the plaintiff is that, in the absence of the conductor, Herrod was in charge of the work. He selected the cars to be moved and gave the signals to the engineer. He gave directions to Higgins, who obeyed them, which was his duty. When the car was kicked in on track No. 2, Higgins was told to “let her roll,” which meant that he was not to ride or accompany it to the stopping-place. Herrod not only gave this direction, but he was at the switch, near the place where the car stopped, and where he could and should have seen' that it was not “in the clear,” while Higgins was seventy feet away, where he could not see the danger, and trusted to Herrod to give warning of any dangers that might exist where he stood.
The railway company contends, and the court below held, that Herrod was not the superior of Higgins ; was not vested with such authority and control as to require Higgins to obey orders ; and that any orders given by Herrod did not change their relations, nor excuse Higgins from performing the duties of his position.
Was the court justified in taking the case from the jury? Was there testimony tending to show negligence on the part of Herrod for which the railway company was liable? Of course, if there was testimony fairly tending to show negligence and liability, the case should have been submitted to the jury, but the court is of the opinion that the plaintiff’s own testimony was such as to preclude a recovery. Her-rod did not represent the company in such a way as to make him the superior of Higgins. They were fellow brakemen, and each had his own duties and tasks to perform. While Herrod had the switch list, made selection of cars, gave signals, and to that extent took the lead, there were certain duties required of Higgins which belonged to him exclusively, without regard to any rule of superiority. Herrod’s duty was to cut off cars and adjust switches, while Higgins was the field man, whose duty was to ride the switched cars and set the brakes, or, in the language of the road, “to spot them.” If he had ridden the car which was kicked down on track No. 2, as he should have done, he would have seen that it was not “in the clear,” and have known that the other car which he undertook to ride could not safely pass. In his testimony Higgins stated that he was required to ride all cars that needed riding; that he was to exercise his judgment in determining whether it was necessary to ride a switched car, and that he did not ride the car in question because he thought it unnecessary to do so. There was, in fact, no necessity of setting the brakes to stop the car. It would have rolled no further if he had ridden it. The trouble was that it did not run far enough, and that there was not room enough for a car to pass on the next track. It is true that Herrod told him to “let her roll,” but that did not relieve him from the performance of his own duty, nor was it an assumption of such duty by Herrod. It was no more than an expression of opinion that the car would not roll too far, and it appears from the testimony that it was an opinion which Higgins shared.
A different question would be presented if the car had been kicked too hard and was going too far and injury had resulted from the failure to stop it. In such case it might possibly be said that the order to Herrod to “let her roll” prevented Higgins from stopping it at the right place. It was his duty rather than Herrod’s to see that the cars were stopped at the proper places. It is not shown that Herrod observed that the car was not “in the clear;” but even if he should have seen that it did not reach a safe place, it was no less the duty of Higgins, who was fielding the cars, to observe the location of the car and the peril of passing it. The injury which was suffered, therefore, appears to have been due to his own neglect.
The trial court based its rulings in part on the ground that the negligence of Herrod, if he was negligent, was not the proximate cause of the injury ; that the injury was in fact caused by the coming of the en gine which ran over plaintiff, and that, as this was an independent, intervening agency — not the one charged in the petition, no recovery could be had. The court is unable to approve of this view, but holding that the injury resulted from plaintiff’s own want of care rather than that of the railway company, the ruling must be sustained.
The judgment is affirmed.
William R. Smith, Cunningham, Greene, Burch, Mason, JJ., concurring. | [
-16,
114,
-88,
-17,
10,
-32,
58,
-102,
97,
-111,
-90,
-41,
-83,
-123,
25,
113,
-5,
109,
-44,
35,
-9,
-77,
7,
-78,
-109,
83,
-13,
-49,
-105,
74,
118,
86,
77,
50,
74,
85,
-26,
64,
69,
28,
-50,
52,
-24,
-32,
57,
40,
36,
122,
4,
111,
17,
14,
-45,
106,
24,
-29,
109,
61,
-21,
44,
-64,
113,
-118,
-59,
101,
16,
49,
32,
-97,
-123,
116,
30,
-40,
53,
16,
-8,
115,
-92,
-125,
-12,
97,
-87,
76,
-30,
98,
33,
29,
-113,
60,
-72,
46,
-85,
-115,
-89,
18,
12,
-85,
7,
-73,
-43,
-106,
20,
-106,
126,
-1,
21,
89,
36,
3,
-117,
-76,
-126,
-33,
38,
18,
31,
-21,
-77,
-80,
101,
-50,
-78,
92,
5,
58,
-109,
-97,
-106
]
|
The opinion of the court was delivered by
Johnston, C. J. :
This was a suit by Prudence E. Stillman to enjoin the sale of lands in Morris county under orders of sale based on two judgments rendered by the district court of Miami county in favor of the First National Bank of Paola. The actions were begun by the bank in April, 1896 — one against Samuel E. Stillman, and S. R. Stillman, for $2229.67, and the other against Samuel E. Stillman, Ray Stillman, and S. R. Stillman, for $587.57. Orders of attachment were issued in each case, directed to the sheriff of Morris county, which were received by that officer, and on April 22, 1896, were levied upon the land in question, then owned by S. R. Stillman. On July 16, 1896, judgment was rendered in favor of the bank in the first case for $2229.67, and in it the attachment was confirmed, and it was decreed that the attached lands should be sold and the proceeds applied to the payment of the judgment. Later, a judgment was rendered in the second case, and like orders as to the attached land were made. On July 25, 1896, and after the above-mentioned judgment had been rendered, S. R. Stillman conveyed the attached land to his wife, Prudence E. Stillman, for the specified consideration of $7000, "subject to a mortgage of $4000, and a judgment for $3000.”
Orders of sale were issued on the judgments in August and October, 1896, which were returned unsatisfied by the direction of the judgment creditor. Certified transcripts of the judgments were filed in the district court of Morris county on December 23, 1896, and on April 10, 1901, executions were issued and levied upon the land in question; but a sale under the executions was not made because a suit to enjoin it was begun by the plaintiff, which she dismissed before the application for injunction was finally heard, and the executions were returned unsatisfied. In June, 1902, other orders of sale were issued, which the sheriff was proceeding to execute when the present suit in injunction was begun. It appears that in October, 1896, the Bradford Belting Company obtained a judgment against Stillman, and in May, 1899, an execution was issued and levied on -the land, under which the land was sold to the belting company. The sale was made subject to the redemption law, and before the expiration of the period of redemption the belting company assigned the certificates of purchase to Prudence E. Stillman, the plaintiff herein, and subsequently a sheriff’s deed was issued to her.
She claims that the belting company acquired a paramount lien on the property under its judgment, and that by assignment she has succeeded to the rights of that company. The trial court rightly rejected her claim. The judgment of the belting company against S. R. Stillman did not operate as a lien upon the land in question, for the reason that the title had entirely passed from him months before the judgment was rendered. The judgment against him was no more than a general lien from the first day of the term at which it was rendered, on the real estate then owned by him. The judgment, as has been seen, was rendered at the Octobor, 1896, term of the court, and the complete title had passed from him to his wife on July 25, 1896, which was after the attachment liens in favor of the bank had been perfected by judgment. She is, therefore, not in the position of a lien-holder, and hence the rules invoked governing contests between lien-holders do not apply. She took the title to the lands subject to existing liens thereon, and in the deed of conveyance there is specific recognition of judgments against the lands to the extent of $3000, and that amount is about the sum of the two j udgments in favor of the bank in the attachment cases. By the conveyance the plaintiff was placed in the position of her husband, and she has no more nor any better rights in contesting the bank’s liens than he would have had. The levies of the attachments at the commencement of the actions created contingent liens, which were perfected when the judgments were rendered. The validity of the liens was then adjudicated, and after that time neither the conveyance of Stillman nor any other act of his could destroy the liens, or lessen the rights of the bank. His wife, who occupies the same position, took her title to the lands with knowledge of the attachments, and holds subject to the liens which matured in the judgments.
The claim that the liens were abandoned, forfeited or lost by delay, or by the return of the orders of sale and executions unsatisfied at the instance of the bank, is not good. In the absence of some affirmative act of surrender or abandonment the attachment lien on land, when confirmed in a judgment, will ordinarily endure as long as the judgment itself. Our statute places no limit on the duration of an attachment lien, as is the case in some of the states. Of course, the attachment will be discharged and the lien lost if judgment be given for the defendant, but its confirmation in a judgment perpetuates the lien, and while it is in a sense merged in the judgment its priority is preserved, and so far as the specific land attached is concerned it relates back to the lien of the attachment. The lien will be lost if the lien of the judgment be allowed to expire by limitation, but since we have no express enactments regulating the continuance of an attachment lien no reason is seen why the duration of the lien should not be the duration of the judgment in which it is perfected. (Floyd v. Sellers, 7 Colo. App. 498, 44 Pac. 376; 4 Cyc. 625.) The fact that at the instance of the bank some of the orders of sale were returned unsatisfied does not show an abandonment of the lien acquired in the proceedings. The law does not favor abandonment or forfeiture, nor are they to be lightly presumed. Before an attachment lien will be deemed to have been abandoned there must be some affirmative act or conduct of the creditor inconsistent with the continuance of the lien. (Wright v. Westheimer, 3 Idaho, 232, 28 Pac. 430; 4 Cyc. 630.) The cause of the return of the orders of sale unsatisfied is not fully explained, but the efforts of the plaintiff and her husband to defeat the claims and liens of the bank suggest that their interference and obstructions may have prevented the sales and afforded reasons for such returns. At any rate, the persistent efforts of the bank to enforce its liens discloses no purpose to waive or abandon them, and we think there was no abandonment.
It is next contended that the returns of the sheriff in the attachment cases were fatally defective because they failed to show that copies of the orders of' attachment were- left with the occupant, or, in case there, was no occupant, that they were left in a conspicuous place on the premises. No mention is made in the returns as to leaving copies of orders with an occupant or upon the attached premises, but that is no longer a material matter. Personal service was made upon Stillman, and hence he was fully informed as to the attachment. More than that, he appeared generally in that action and contested the validity of the attachment upon other grounds than the defect in question, and hence he is not in a position to challenge the service of the orders in this collateral way; and his wife occupies no better position. The omission of any statement as to what was done in respect to leaving the copies of the orders does not overcome the presumption that the officer did his duty in the premises. If the sufficiency of the return had been attacked in the attachment action it might have been amended so as to have shown the leaving of the order, if that was the fact. If omitted entirely it was a mere irregularity, not a fatal defect, and therefore not available to the plaintiff in this collateral way. (Wilkins v. Tourtellott, 28 Kan. 825; Head v. Daniels, 38 id. 1, 15 Pac. 911.)
The mortgage lien of the insurance company was subject and subordinate to those of the bank.
We find no error in the record, and the judgment is therefore affirmed.
All the Justices concurring. | [
-16,
110,
-80,
-36,
90,
-32,
40,
-80,
66,
-78,
-80,
83,
-85,
-60,
1,
37,
-82,
109,
117,
105,
-26,
-78,
121,
-20,
-110,
-13,
-63,
-43,
49,
92,
-10,
-41,
73,
32,
74,
-35,
-58,
32,
-61,
92,
-114,
65,
-87,
108,
95,
-64,
52,
63,
114,
79,
21,
46,
-13,
60,
89,
-61,
45,
44,
-29,
-85,
81,
-8,
-85,
-59,
-19,
23,
-125,
37,
-118,
2,
88,
-66,
-112,
53,
32,
-24,
17,
-106,
70,
84,
9,
-39,
9,
34,
38,
3,
-43,
-49,
-24,
-103,
6,
-10,
-115,
-90,
-22,
88,
83,
64,
-66,
-99,
116,
16,
2,
-10,
-26,
13,
16,
108,
3,
-49,
-106,
-95,
15,
61,
-102,
7,
-5,
15,
-80,
65,
-57,
-6,
125,
70,
16,
27,
-50,
-16
]
|
The opinion of the court was delivered by
Smith, J. :
On April 3, 1901, the defendant in error made application for membership in the National Benevolent Society. Two days later a benefit certificate was issued to him, which provided that in consideration of the payment of one dollar a month “the society will pay to the member . . . such a sum as he may be entitled to receive under the terms and conditions of this certificate and the rate-book and by-laws of the society now in force, or that may hereafter be enacted, and on the terms and conditions printed on the back hereof, all of which are made a part of this agreement, for sickness, accident or death occurring while in full standing as a member.”
In January, 1902, Oldham was accidentally injured, and incapacitated from performing the duties of his vocation as a railway postal clerk for twenty-two weeks. He sued to recover the sum of $222.84, claiming indemnity at the rate of ten dollars a week. He had judgment for this amount.- Defendant below insisted that Oldham was entitled to recover the sum of twenty dollars a month only. The question of amount is the sole controversy.
Plaintiff below was allowed to testify that when he applied for membership in the society its president stated to him that if he was hurt he would receive ten dollars a week as benefits. This testimony was admitted over the objection of counsel for defendant below, and after much hesitation and doubt on the part of the court. Oldham also testified that no rate-book was furnished to him by the society, or any of its officers or agents, and that he relied on the oral statements of the president respecting the amount of indemnity he was to receive in the event of an accident. Before plaintiff below had concluded his evidence to support a recovery he introduced the rate-book in evidence, after receiving it from counsel for the society in response to a demand. This rate-book showed that it was adopted by the supreme lodge of the National Benevolent Society on October 4, 1900, several months before Oldham became a member and received his benefit certificate.
In express terms railway postal clerks are classed in this book as hazardous risks, and, in case of accident, the rate of indemnity to them is fixed at twenty dollars a month. The court below submitted to the jury the question whether the rate-book introduced in evidence was in force at the time the application for membership was made and the benefit certificate issued, and instructed that if the rates contained in the book were in force at that time, then the oral testimony of Oldham should be disregarded. We think the court below adopted and applied an erroneous theory of law to the case.
The written application of Oldham for membership, which carried with it the right to benefits in case of accident or sickness, contained an agreement that he would “abide by the constitution, by-laws, rate-book, rules and regulations of the society, and such changes as may be made in them from time to time.”
The benefit certificate issued to defendant in error refers in express terms to the rate-book and by-laws for the ascertainment of the amount of benefits. No specific sum to which a member may be entitled in case of accident is mentioned in the certificate, which serves the purpose of an insurance policy. The benefit certificate referring on its face to a rate-book presupposes the existence of such a book. The recitals in the certificate were at least prima facie proof that the society had such a rate-book. It was incumbent on plaintiff below to establish its non-existence before oral testimony was competent to show an amount of indemnity orally agreed to be paid by the company to the insured in case of accident.
Again, by the introduction of the rate-book in evidence the plaintiff below confirmed the contention of the society respecting the amount of indemnity which it agreed to pay in such cases. To avoid the effect of this evidence, counsel for Oldham assert that the book which he offered in support of his right to recover was not the rate-book in force at the time the policy was issued, for the reason that the rate of indemnity contained therein was different from the amount which the president of the society told him he would be entitled to in the event of injury. The rate-book offered appears to have been adopted before Oldham became a member, and presumably was in force when he joined the society, in the absence of a showing to the contrary.
The conclusion we have reached is that plaintiff below, in view of the recitals in his benefit certificate, which he made a part of his petition, could not recover without establishing the fact that at the date of his becoming a member of the society it had no rate-book or by-laws in force fixing the amount of indemnity. Furthermore, that having introduced the rate-book in evidence- on his own behalf, he was bound by its provisions respecting the amount of his insurance.
The judgment of the court below will be reversed and a new trial ordered.
All the Justices concurring. | [
-78,
124,
-40,
-36,
24,
96,
42,
-102,
65,
-64,
-89,
87,
-7,
-125,
9,
39,
-95,
45,
-79,
107,
-42,
-89,
23,
43,
-38,
-45,
123,
-59,
-67,
125,
-14,
-43,
79,
56,
10,
-123,
-26,
-54,
-52,
-76,
-50,
13,
-87,
-19,
57,
96,
48,
122,
-124,
75,
113,
-33,
-45,
38,
28,
70,
45,
45,
107,
59,
-48,
-15,
-118,
-115,
125,
13,
19,
36,
-68,
7,
120,
14,
-104,
21,
64,
-8,
90,
-90,
-121,
-12,
121,
-71,
4,
102,
102,
-96,
53,
9,
-70,
-120,
30,
-78,
-99,
4,
-78,
88,
59,
44,
-106,
-103,
-126,
20,
7,
126,
-14,
21,
92,
32,
3,
-117,
-74,
-125,
-49,
108,
-98,
-117,
-1,
-81,
48,
117,
-54,
-30,
92,
-57,
122,
-109,
-113,
-40
]
|
The opinion of the court was delivered by
Clark A. Smith, J.:
This was a suit begun by the plaintiff in error in the district court of Sedgwick county to enjoin the defendants from filling up and® destroying an irrigation ditch. A temporary injunc tion was granted pending the hearing. On the trial the court dissolved the temporary injunction, refused the prayer of the petition, and rendered judgment against the plaintiff for costs. To reverse this judgment the plaintiff brings the case to this court for review.
The defendants in error file their motion to have the case dismissed, claiming that this court is without jurisdiction, for the reason that the trial judge who settled and signed the case-made did not do so within the time fixed by the court, and hence had lost jurisdiction. Another reason is given, but the one stated is sufficient, and the motion must be allowed. The judgment in favor of the defendants was rendered on December 31, 1903, by the Honorable David M. Dale, then judge of said court. His term of office expired on the 11th day of January, 1904. At the time of rendering the judgment the following order was made :
“And thereupon, on motion of the plaintiff and by consent of the parties hereto, in open court, and sufficient cause therefor having been shown, it is ordered by the court that the time for serving a case-made in said cause be, and the same is hereby, extended for fifteen days from this date. It is further ordered that the said defendants be allowed five days thereafter to suggest amendments thereto.”
No order was made fixing the time for settling and signing the case-made. It was duly served on the defendants on the 13th day of January, 1904, within the time fixed by the order of the court. No suggestion of amendment was made, and after due notice by the plaintiff in error to the defendants in error of the time and place at which the case-made would be presented for settling and signing, Judge Dale settled and signed it, and the same was attested by the clerk of the court, on the 25th day of January, 1904. At the time it was settled and signed the attorney for defendants in error, as well as the attorneys for plaintiff in error, was present, and no objection to the jurisdiction to settle and sign the same was made. Judge Dale had jurisdiction in this matter to and including January 20, 1904, and not afterward.
Chapter 380 of the Laws of 1903 expressly repeals section 548 of the code of civil procedure (Gen. Stat. 1901, §5034) and provides :
“The case-made or a copy thereof shall within ten days after the judgment or orders entered be served upon all opposite or adverse parties; . . . provided, that the court or judge before whom the case was tried may, on motion, order an extension of time for serving such case-made. . . .' And such parties . . . may within ten days thereafter suggest amendments in writing and present the same to the party making such case or his attorney. . ...”
Judge Dale had jurisdiction in this matter so long as the time fixed for serving a case-made, suggesting amendments thereto, or settling or signing the same, had not expired, and no longer. It is an especial, individual grant of power to one whose authority as a court and a judge had otherwise expired with the expiration of his term of judicial office. The grant, though somewhat anomalous, is for the beneficent purpose of enabling litigants who claim to have been defeated of justice in a court of which the grantee was judge to have their claims reviewed by the supreme court of the state. To this end the personal knowledge of the judge who tried the case is indispensable — he can have no substitute. If he die, or become mentally incapable, before settling and signing the case-made, the duty can devolve upon no other. The extraordinary power conferred upon a former judge as an individual, not as an officer, must of necessity have some limitation in time, and the legislature has wisely limited the exercise of the power to “the time fixed” — that is, to the time which was fixed while he was a judge or a court.
It is claimed that the statute of 1908 fixes the time within which suggestions of amendment may be made at ten days after, the service of the case-made, which is true; but the statute confers such a right as may be waived, and was, in this case, by the party entitled thereto to the extent of fixing such time at five days.
The proceeding in error will be dismissed.
All the Justices concurring. | [
-16,
104,
-4,
-114,
106,
-31,
32,
-110,
95,
49,
-25,
83,
-83,
-126,
20,
57,
-21,
-83,
85,
123,
66,
-94,
6,
99,
-46,
-45,
-53,
-33,
-75,
-19,
-4,
-41,
72,
40,
2,
-99,
70,
96,
-123,
-44,
-50,
6,
41,
-20,
-48,
11,
52,
41,
22,
11,
53,
12,
-14,
47,
21,
67,
105,
41,
-53,
57,
65,
-15,
-98,
-59,
77,
4,
-95,
-73,
-118,
3,
104,
46,
-112,
21,
-126,
-8,
115,
-106,
-122,
117,
101,
-71,
40,
118,
98,
1,
109,
-49,
-8,
-104,
46,
126,
-115,
-90,
-107,
88,
-22,
6,
-66,
-99,
116,
22,
6,
102,
110,
-123,
-39,
44,
7,
-118,
-112,
-13,
-49,
-72,
-104,
3,
-61,
-126,
48,
112,
-57,
-26,
92,
71,
113,
-101,
-49,
-100
]
|
The opinion of the court was delivered by
Mason, J. :
The owner of certain cattle in Wilson county executed chattel mortgages on them, securing two notes. The mortgages were properly recorded. Afterward the mortgagor turned the cattle over to another person who, without the consent of the mortgagee, and in violation of the terms of the mortgage, shipped them to Greer, Mills & Co., commission merchants at East St. Louis, for sale. The commission merchants sold the cattle and remitted the proceeds, less charges and expenses, as directed by the consignor, without actual notice of the mortgages. The notes and mortgages remained unpaid and were transferred to J. W. Newland and D. R. Newland, who sued the commission merchants, not for damages resulting from the conversion of the cattle, but upon the allegation of an implied promise by them to pay to plaintiffs their net proceeds, the tort being expressly waived. Plaintiffs recovered a judgment which defendants seek to reverse.
Upon the facts stated it is clear that defendants would have been liable in an action for conversion, and the fact that they had no actual notice of the claim of the mortgagees would have constituted no defense. (Brown v. Campbell, 44 Kan. 237, 24 Pac. 492, 21 Am. St. Rep. 274.) But defendants claim that they were not liable in an action upon contract for the reason that in the transaction they acted only as the agents of the real wrong-doer, the person who shipped the cattle to them, and that their own estate was not intended to be benefited, and was not in fact benefited, by the sale — -that they never acquired or claimed the beneficial title to the cattle or their proceeds. It is true that the rule is well established that “if no benefit accrues to the tort-feasor by reason of the tort committed, assumpsit will not lie. He cannot be charged as on an implied contract unless some benefit has actually accrued to him.” (15 A. & E. Encycl. of L., 2d ed., 1115. See, also, ch. 3, Keen. Quasi-contr., and Fanson v. Linsley, 20 Kan. 235, and cases cited.) It is also true that the title of property consigned by the owner to a commission merchant for sale, and of its proceeds, is in the consignor, and no title vests in the factor except as trustee. (12 A. & E. Encycl. of L., 2d ed., 695, 696.)
In considering whether these principles protect the defendants from an action upon an implied contract to pay the mortgagee the price of the cattle, it must be borne in mind that no distinction is to be made between an actual knowledge by the consignee that goods sent to him belong to another than the shipper and the constructive knowledge of that fact given him by the public records. The effect of the notice imparted by the record does not depend upon the form of action. In the case cited it was held equivalent to actual notice in an action for conversion ; it is so in an action upon an implied contract. The case must therefore be treated as though defendant had had actual notice of the existence of the mortgages.
If a factor, while still holding the proceeds of goods sold by him, knows they were stolen, he cannot assert, as a protection against the claims of the real owner, what is untrue in fact, that -the title is in the one who has stolen them ; and, having in his hands money belonging to another, in the absence of a reason to justify his holding it himself or making some other disposition of it he is liable to the owner upon an implied contract to pay it to him.
“Where the defendant is proved to have in his hands the money of the plaintiff, which, ex sequo et bono, he ought to refund, the law conclusively presumes that he has promised so to do. . . . The count for money had a"d received, which in its spirit and objects has been.likened to a bill in equity, may, in general, be proved by any legal evidence, showing that the defendant has received or obtained possession of the money of the plaintiff, which, in equity and good conscience, he ought to pay over to the plaintiff. And where the defendant has tortiously taken the plaintiff’s property and sold it, or being lawfully possessed of it, has wrongfully sold it, the owner may, ordinarily, ivaive the tort, and recover the proceeds of the sale under this count. So, if the money of the plaintiff has in any other manner come to the defendant’s hands, for which he would be chargeable in tort, the plaintiff may waive the tort, and bring assumpsit upon the common counts.” (2 Green. Ev. §§102, 117, 120.)
“Where money has been paid to a factor for the use of the principal, to which the latter is discovered after-wards not to be entitled, the factor will be liable to an action at the suit of the person from whom he received such money, as for money had and received to his use, unless he has, before action brought, actually paid over the money to his principal.” (Weld v. Shaw, 2 La. Ann. 559.)
He who holds money that he knows belongs to one person cannot voluntarily pay it to another and claim exemption from contractual liability on the ground that he acted merely as an agent and derived no personal benefit from the transaction. When he knows who is entitled to receive the money in his hands he owes that person a duty from which the law implies a contract to pay it to him, and he can no more escape that liability, or alter the character of it, by a payment to the person from whom he received it than by making any other disposition of it. The case of Hindmarch v. Hoffman, 127 Pa. St. 284, 18 Atl. 14, 4 L. R. A. 368, 14 Am. St. Rep. 842, was an action of assumpsit, and it was there said :
“As found by the learned judge, the money sued for as money had and received by defendant to the use of plaintiff, never belonged to Savanack, nor could he have legally recovered any part of it. On the contrary, it was plaintiff’s money, stolen from him by Savanack, and by the latter left with the defendant. While it was thus in his custody and under his control, he was fully informed of the theft, and also that plaintiff, as owner of the money, claimed it. Under these circumstances, it was clearly his duty to hold it for plaintiff, and, upon satisfactory proof of ownership, to pay it over to him. From the existence of that duty the law raised an implied promise by defendant to do so, but, in disregard of his duty in the premises, he paid it over, on the order of the thief, to parties who had no right whatever to receive it. Justice demands that he should now be compelled to pay the amount to the rightful owner, and there is no good reason why it should not be recovered in the present form of action.”
“Where a factor is notified that cotton consigned to him by a third person was made on plaintiffs’ plantation and belongs to them, and is directed not to pay over the proceeds without their consent, the notice will render the factor liable for any subsequent payment made to the consignor, not depending on a superior right.” (Ledoux v. Anderson, 2 La. Ann. 558.)
The situation is substantially the same as though cattle belonging to plaintiffs had been stolen and shipped to defendants for sale, and defendants had sold them and paid the proceeds to the consignor after learning of the theft. In such a case the defendants could say with as much force as they do now that they derived no personal benefit from the transaction —that their estate was not benefited by it; but under such circumstances this statement would not be a sufficient answer to plaintiffs’ claim upon the implied contract to pay the money to the real owner ; nor is it here.
The judgment is affirmed.
All the Justices concurring.
(78 Pac. 835.)
SYLLABUS BY THE COURT.
1. Chattel Mortgage — Commission Merchants, without Notice, Held Not Liable on Implied Contract. A commission merchant who receives mortgaged cattle sent to him for sale without the knowledge or consent of the mortgagee, and in violation of the terms of the mortgage, and who sells them and pays the proceeds, less his commission, to the consignor, without notice of the mortgage, does not derive such a benefit from the transaction as to authorize the mortgagee to waive the tort and recover in an action upon an implied contract.
2. -- Record Held Not to Impart Constructive Notice. The filing of a chattel mortgage for record does not impart constructive notice to a commission merchant to whom the mortgaged property is sent for sale and who sells it and pays the proceeds, less his commission, to his consignor. | [
-13,
110,
-47,
45,
26,
96,
40,
-102,
70,
-96,
39,
83,
-23,
-58,
20,
45,
-28,
61,
85,
104,
84,
-78,
7,
67,
-46,
-77,
17,
-59,
-75,
73,
-28,
-49,
77,
32,
74,
85,
-90,
-94,
-63,
92,
42,
69,
-118,
-59,
-7,
64,
48,
41,
20,
72,
101,
-115,
-13,
46,
61,
67,
41,
42,
107,
61,
-48,
-8,
-70,
-121,
127,
3,
49,
101,
-104,
99,
-22,
-88,
-112,
51,
1,
-24,
114,
-74,
-122,
84,
111,
9,
9,
38,
103,
51,
85,
-51,
-48,
-104,
47,
-1,
-113,
-90,
-112,
88,
-125,
34,
-65,
-99,
85,
64,
-122,
-12,
-30,
29,
-99,
108,
23,
-49,
-42,
-89,
-83,
126,
-104,
-125,
-1,
-121,
32,
113,
-49,
-30,
93,
67,
124,
-101,
-114,
-9
]
|
The opinion of the court was delivered by
Burch, J. :
The I. A. Taylor Banking Company instituted an action to recover upon a promissory note for 11700, executed and delivered to it by the Hartford Creamery Company, and to foreclose a mortgage securing the note upon the real estate belonging to the creamery company. The Chicago Building and Manufacturing Company was made a party defendant, and the petition alleged that it claimed to have some interest in, or lien upon, or right to, the property involved, the nature and extent of which was unknown to plaintiff, but that such interest, or lien, or right, was inferior and subordinate to plaintiff’s lien under its mortgage. The creamery company did not contest the plaintiff’s cause of action.
W. F. Tryber became a party to the action by leave of court. His answer alleged that the Chicago Building and Manufacturing Company had erected a creamery upon the land covered by plaintiff’s mortgage under a contract with divers subscribers to a fund for that purpose; that the building and manufacturing company had assigned to him subscriptions due and unpaid to the amount of $1198; that the subscribers to the creamery fund had incorporated under the name of the Hartford Creamery Company, and that the creamery company had assumed and agreed to pay the delinquent subscriptions. Judgment was asked against the creamery company for the amount stated.
By an amendment to his answer Tryber undertook to interpose a defense to the plaintiff’s mortgage, but he made no claim to any lien upon the mortgaged property, or to any interest in it whatever, and no attempt was made to appropriate it to the payment of his debt. The building and manufacturing company pleaded the truth of the facts alleged in Tryber’s amended answer.
The Hartford Creamery Company defended against Tryber’s claim by pleading compliance with their contract on the part of the subscribers to the creamery fund, and demanded damages on account of the failure of the building and manufacturing company properly to construct and equip the creamery.
At the trial of the case the court excluded all evidence offered by Tryber and the building and manufacturing company to impeach plaintiff’s mortgage, and rendered judgment for the plaintiff according to the prhyer of its petition. Of this the defeated defendants complain.
The building and maufacturing company was made a party for the sole purpose of determining the validity of any claim it might assert against the mortgaged property. The allegation of the petition was merely that the building and manufacturing company claimed some right affecting the property, the nature and extent of which was unknown. When this petition was answered, no lien or other interest was exhibited, and no relief was asked upon the basis of such a claim. The building and manufacturing company and its assignee occupied the status of simple contract creditors of the creamery company, and as such they had no concern with other debts of their debtor, and had no standing to controvert the claims of other creditors. The creation of a simple contract debt does not confer upon the creditor a general right of guardianship over other business affairs of the debtor. Even though the debtor should fraudulently transfer his property for the purpose of defeating the collection of his debts a simple contract creditor cannot interfere. This is elementary law in this state.
The remaining issues in the case were determined by a jury, which rendered a verdict for Tryber for $200. This verdict he claims is too small in amount, and argues that it was induced by erroneous rulings of the court relating to the introduction of evidence, and by erroneous instructions to the jury.
The contract between the subscribers to the creamery fund and the building and manufacturing company was written, and expressed with considerable particularity the manner in which the creamery should be built and equipped. In some instances, however, the agreement was not specified. For example, it was provided that a'certain vat should be supplied with hot and cold water. The proof tended to show that a boiler of a given capacity was essential for this purpose, and that the building and manufacturing company had omitted to furnish it. Evidence upon matters of this character was introduced over objection, and no reason appears why it was not proper to show damages resulting from a non-fulfilment of the contract by the builder of the creamery. The court was careful to reject all claims for articles supplied by the creamery company after its acceptance of the plant, which were clearly covered by the contract schedules, but in other instances evidence was required in order to make a proper application of the contract to its subject-matter. The evidence relating to a few minor matters of this class is quite debatable, but the error in its admission, if any, is not of sufficient consequence to require a new trial. Especially is this true since the verdict of the jury apparently indicates that the creamery company was allowed no damages whatever, and that Tryber was awarded an amount which agents of the building and manufacturing company had stated covered all that was unpaid of the subscriptions made.
The court gave the jury the following instruction, which it is claimed is wrong :
“For any articles that the company agreed to supply or furnish and did not supply or furnish according to the written contract, the defendant would be entitled to a credit thereof. This would include the deepening of a well and its connection with said plant, and the piping of a boiler, if the same were necessary to supply hot and cold water to the vat; but the defendant would not be entitled to a credit for repairs or articles furnished for making such repairs.”
The supposed defect lies in the reference to the deepening of a well, the contract having provided that the subscribers should furnish water ready to connect with the pump. It is evident that the court was endeavoring to illustrate the right to recover for a class of items by the particular matter of supply ing hot and cold water to the vat, and inadvertently overlooked the provision of the contract referred to. There is, however, no evidence in the record that any damages were claimed for deepening the well, and no proof was offered as to the cost of deepening it. Hence, the verdict could not have been affected in any sum by the feature of the instruction to which objection is made.
Since the record discloses no material error in the proceedings of the district court its judgment is affirmed.
All the Justices concurring. | [
-16,
124,
-104,
-84,
26,
96,
56,
-38,
73,
-128,
-89,
115,
-23,
-41,
20,
101,
-10,
57,
85,
107,
-43,
-77,
7,
-85,
-46,
-13,
-45,
-35,
-79,
95,
-10,
-34,
-51,
52,
-54,
-43,
-26,
-118,
-63,
28,
-114,
-115,
56,
-24,
-47,
16,
48,
123,
116,
77,
81,
-116,
-13,
36,
24,
-49,
105,
40,
-23,
41,
-16,
-8,
-104,
-123,
125,
19,
-95,
86,
-100,
71,
-40,
30,
-120,
49,
1,
-24,
114,
-74,
-122,
-44,
35,
56,
9,
38,
99,
18,
1,
-21,
-50,
-72,
46,
-33,
29,
-90,
-111,
88,
2,
41,
-67,
-97,
120,
17,
-89,
126,
-2,
21,
29,
108,
5,
-125,
-10,
-126,
-81,
126,
-98,
-123,
-17,
-121,
49,
97,
-50,
48,
92,
103,
58,
-109,
-50,
-40
]
|
The opinion of the court was delivered by
Burch, J. :
The plaintiff sued the defendant for damages resulting from injuries inflicted in a fight. The petition was in the ordinary form for an assault and battery involving a mayhem. The answer pleaded justification. The evidence given at the trial indicated that insulting words were followed by a mutual stripping of hats and coats, a movement of the defendant toward the plaintiff in an angry manner, mutual challenges of each to whip the other, a statement by the defendant that it would not cost the plaintiff a penny to whip him, a reply by the defendant that he was no more afraid of a dollar than the plaintiff, much vile talk, and then a voluntary separation. Immediately afterward, as the parties were going in the same direction along a public street, the quarrel was renewed. The defendant stopped, alighted from his buggy, tied his horse by the roadside, and removed his hat and coat. The plaintiff stopped his team, left his buggy, and removed his hat and coat. The plaintiff said the defendant approached him in a threatening attitude, and that as soon as they were near enough they clinched and fell. Other testimony was to the effect that they clinched before any blow was struck. The defendant said the plaintiff struck him as soon as he could be reached, thereby delivering the technical “first blow” of the altercation, and his testimony was corroborated in this respect. The succeeding conduct of the parties was characterized by perfect freedom from all hampering conventionalities.
Special attention was called to the question of an agreement to fight by interrogatories propounded in the course of the introduction of the evidence, and special requests were duly made to the court by the plaintiff for instructions upon the law of mutual combat. These requests were refused and the following instructions were given :
“4. By the pleadings in this case the issues between the parties are well defined, and conditioned upon the contention of each party to the action, and I instruct you that in this case no question of law could be considered by you possibly upon any suggested theory that whatever of conflict or violence occurring between the parties was under and by virtue of any understanding, direct or indirect, or mutual agreement or consent between the parties that they should engage in a fight. Neither party is entitled to recover or defend in this case upon any such theory, the same being inconsistent with the contentions made by each in their pleadings.”
“7. I instruct you further that if you believe from a preponderance of the evidence that the plaintiff did the first act of actual violence in the encounter in question, and that at the time the injuries complained of were inflicted the defendant actually believed that he was in immediate danger of receiving great bodily harm from the plaintiff, then the defendant had the right to resort to such means of defense as were within his reach, and in such case your verdict must be for the defendant.”
Under the evidence the jui’y had the right to believe that each party voluntarily undertook to subdue the other by violence, taking the chances of receiving punishment himself ; that they mutually consented to a physical combat with the mutual purpose of doing each other hurt, and the mutual expectation of encountering force in return ; and that all injuries inflicted in the course of the contest were the product of this vicious animus of each participant toward his ad versary. Such being the nature of the proof, it was consistent with the allegations of the plaintiff’s petition in every particular. There were an assault, a beating, a wounding and maiming, unlawful, malicious, and without just cause or provocation, precisely as alleged.
The plaintiff could not have made allegations more appropriate to the nature of his case than those contained in his petition. He could have pleaded nothing to which the proof would have corresponded better. No further or broader allegations were necessary in Order to include the facts disclosed by the evidence; and the plea of justification contained in the answer could not limit the scope of the petition, or impose the defendant’s theory of the case upon the plaintiff. Therefore, the fourth instruction to the jury misstated the effect of the pleadings in the case, and the law of mutual combat, so far as it was applicable to‘the evidence, should have been given in place of the seventh instruction.
If the parties fought by mutual consent the circumstance of who committed the first act of violence was immaterial; and so long as each combatant persisted in his original determination to vanquish his antagonist the aggressions were mutual. A resistance which has for its real object the securing of an opportunity to mangle the assailant is not legal self-defense ; and while it seems to be the law that, in a proper case, the jury may be required to follow the kaleidoscopic fortunes of a rough-and-tumble fight and determine whether, at a given moment of time, a finger was bitten off, or an eye was gouged, as a matter of self-protection rather than of attack (see Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081, 58 L. R. A. 744), they are not obliged to take the striking of the first blow as the point of departure in a case of mutual combat.
Consent to engage in mutual combat may be inferred from circumstances. Conduct may have much more weight than profanity in determining the actual attitude of the parties toward each other, and the rules for ascertaining the true state of mind of brawlers who finally come to blows are not different from those applied in other cases.. ■■
If the encounter was the result of reciprocal desires to fight the conduct of each party was criminal. Each one was punishable at least for a breach of the peace, and for an assault and battery.
“It is no defense to Newland that Miles was a willing participant in the fight, and it would be no defense to Miles if he were being prosecuted for assault and battery that Newland was also willing for the fight. Take a strong illustration : Supposing these two parties had met and blows had passed between them, and then, stopping blows, they had agreed to fight a duel with pistols, and, measuring off the distance between them, each had taken a pistol and fired at the other ; now, whoever might have been the aggressor in the commencement of the quarrel, the willing participation of each in the duel, and the firing by each of his pistol with intent to kill, would make each guilty of an assault with intent to kill. So here, whichever may have been the aggressor when both were on horseback, the moment they jumped off and willingly engaged in a fist fight each became guilty of an assault and battery.” (The State v. Newland, 27 Kan. 764, 769.)
Because it was a criminal enterprise his consent to participate in the melee does not deprive either party of his civil remedy against the other, and each is entitled to recover from the other all damages resulting from the injuries he received in the fight. Chief Jus tice Cooley, in Ms work on Torts (2d ed.), at page 187, states the law on this subject as follows :
“Consent is generally a full and perfect shield when that is complained of as a civil injury(which was consented to. A man cannot complain'of a nuisance the erection of which he concurred in or countenanced. He is not injured by a negligence which is partly chargeable to his own fault. A man may not even complain of the adultery of his wife which he connived at or assented to. If he concurs in the dishonor of his bed, the law will not give him redress, because he is not wronged. These cases are plain enough, because they are cases in which the questions arise between the parties alone.
“But in case of a breach of the peace it is different, The state is wronged by this, and forbids it on public grounds. If men fight, the state will punish them. If one is injured, the law will not liste«-to an excuse based on a breach of the law. There are three parties here, one being the state, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. The exception to this general rule embraces only those cases in which that to which assent is given is matter of indifference to public order ; such as slight batteries in pl'ay or lawful games, such unimportant injuries, as even when they constitute technical wrongs, may well be overlooked and excused by the party injured, if not done of deliberate malice. But an injury, even in sport, would be an assault, if it went beyond what was admissible in sports of the sort, and was intentional.”
. Sir Frederick Pollock, in his treatise on the subject of Torts, concurs fully in these views. (Poll. Torts, 157.) The consensus of judicial opinion, both in England and in the United States, has been, with but slight demur, to the same effect.
Lists of cases illustrating the doctrine may be found in 3 Cyc. 1070; 2 A. & E Encycl. of L., 2d ed., 986; 4 Am. Dig., Cent. ed., Col 873; Nilley v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A., 853; Grotton v. Glidden, 84 Me. 589, 24 Atl. 1008, 30 Am. St. Rep. 413.
There is some natural repugnancy'to allowing damages to be recovered by a bullying blackguard who has courted a fight and has been soundly thrashed, but the law can indulge in no sentiment regarding the matter. It Can concede no legal effect to his vicious purpose. His consent to fight must be treated as utterly void, and each party must be left to suffer all consequences, civil and criminal, of his reprehensible conduct.
Although the evidence fully warranted that it should be done, the jury were not allowed to apply the foregoing principles to the case under consideration. Therefore, the judgment of the district court is reversed, and the cause is remanded for a new trial.
All the Justices concurring. | [
-15,
-6,
-111,
-81,
11,
96,
-86,
-40,
113,
-117,
119,
51,
-19,
-61,
1,
33,
-6,
109,
84,
106,
94,
-77,
95,
-63,
-6,
-45,
51,
69,
-79,
-18,
-3,
95,
79,
32,
-62,
85,
102,
74,
-59,
-44,
-122,
-124,
-71,
108,
-47,
66,
-80,
123,
80,
3,
49,
-113,
-29,
46,
92,
-37,
-87,
44,
74,
61,
-44,
113,
-50,
13,
29,
2,
-77,
34,
-100,
-93,
90,
60,
-103,
49,
1,
-24,
115,
-76,
-128,
84,
105,
-87,
8,
-26,
99,
33,
97,
-62,
12,
-8,
47,
126,
15,
-90,
-112,
16,
11,
8,
-74,
-97,
115,
80,
-121,
106,
-7,
28,
28,
108,
15,
-49,
-106,
-93,
-49,
54,
-98,
-31,
-29,
-89,
22,
69,
-49,
34,
92,
69,
120,
-37,
-97,
-98
]
|
The opinion of the court was delivered by
Burch, J. :
In this case the parties agree upon the-facts. The plaintiff delivered to the defendant consignments of bulk wheat for shipment to points beyond the defendant’s line of railroad under contracts-signed by the shipper, each containing the following stipulation :
“The Atchison, Topeka & Santa Fe Railway Company . . . will receive the under-noted property and transport it over the Atchison, Topeka & Santa. Fe railway and deliver to consignees, or the next company or carriers (if the same is going beyond its. line of road), for them to deliver to the place of destination of said property; it being distinctly understood that this company shall not be responsible as common carriers for said property beyond its line of road, or while at any of its stations awaiting delivery to such carriers.”
The defendant safely and promptly transported the property to termini of its own line and there delivered all of it to connecting carriers organized, managed, operated and controlled separately and distinctly from itself, for transportation to the places of final destination. At those places portions only of each consignment were delivered by the connecting carriers, and this controversy relates to the liability of the defendant for the shortage.
The plaintiff invokes the aid of chapter 100 of the Laws of 1893 (Gen. Stat. 1901, §5944), designed, according to its title, for the protection of shippers of grain, seeds, and hay, section 7 of which is as follows :
“No defense to an action for the recovery of such loss or shortage on grain, seeds or hay so weighed, by reason of the same having occurred on the line of some other company to which it may have been transferred. or which may have received it for shipment, shall be admitted to be made unless all the facts and circumstances of such loss or shortage so occurring on such other line shall be fully set forth in written pleadings filed by the shipping company and affirmatively and fully proved by it.”
The defendant pleaded, and the agreed facts show, that it had no knowledge of the manner in which the wheat was handled by the connecting carriers after delivery to them, or, if there was a loss, its extent, or the time when it occurred, or any of the circumstances connected with it.
From the facts thus presented by the record three questions of law arise : (1) Is section 7 of chapter 100, Laws of 1893, of any validity, in view of the decision of this court in Railway Co. v. Simonson, 64 Kan. 802, 68 Pac. 653 ? (2) If section 7 of the statute referred to be in force, did the pleading and proof on the part of the railway company amount to a substantial compliance with it? (3) Does section 7 of the statute referred to apply to cases growing out of shipments made under contracts of the character of those involved in this suit ? If the last question be answered in the negative, a decision of the others would be obiter.
The authorities are unanimous to the effect that a carrier of goods may limit its contract of carriage to transportation to the end of its own line, and delivery there to a connecting carrier. Such was the full extent of the defendant’s obligation under its contracts with the plaintiff. In the case of Berg v. A. T. & S. F. Rld. Co., 30 Kan. 561, 2 Pac. 639, a contract of carriage in terms practically identical with those under consideration was interpreted by this court. In the opinion Mr. Justice Brewer said :
“Now, nothing could be clearer than that the company stipulated only for safe transportation over its own road, and a delivery in good order to the connecting carrier.”
More than this a carrier cannot be compelled to do, if it choose to abide within its privilege.
“It is the duty of a common carrier to receive and transport goods over its own line — a duty which it must perform, or respond in damages. But it is not its duty to transport such goods over the line of any other carrier, or to contract for such transportation ; and it cannot be compelled to assume such an obligation.” (Berg v. A. T. & S. F. Rld. Co., supra.)
If the statute invoked by the plaintiff be construed to apply to this case, the defendant must meet, in direct opposition to the terms of its contracts, all the responsibilty of a common carrier oyer lines not its own, unless it plead and prove all the facts and circumstances of divers breaches of duty by other carriers upon their roads. Such an obligation is as foreign to the defendant’s contracts as transportation itself over the lines of other carriers would be.
It is no part of the business of the defendant as a common carrier over its own road to discover, report and prove the facts concerning negligent acts in the transportation of freight committed by distinct and independent carriers upon their lines. The obligation to do so cannot be superadded to the defendant’s contracts to transport over its own route any more than the obligation to carry over other railroads could be superadded to the same contracts ; and the liability of a carrier over roads other than its own cannot be imposed upon the defendant as a penalty for a failure to perform acts equally alien to its duty. This being true, the statute must be held to be inapplicable to cases of the kind now under review, and it must be held that the defendant was completely exonerated when its contracts and full compliance with their terms were established.
The case of Richmond &c. Railroad Co. v. Tobacco Co., 169 U. S. 311, 18 Sup. Ct. 335, 42 L. Ed. 759, called to the attention of the court in a petition for a rehearing, has no application, since the statute there involved went no further than to impose upon the initial carrier the burden of showing compliance with its contract safely to transport over its own line.
The judgment of the district court in favor of the plaintiff is reversed, and, since an agreement with respect to the facts appears, the district court is directed to enter judgment in favor of the defendant for costs.
All the Justices concurring. | [
112,
104,
-3,
-115,
26,
98,
58,
-40,
101,
-93,
36,
83,
-51,
85,
-107,
41,
-25,
61,
-11,
42,
116,
-121,
3,
-64,
-45,
-13,
-95,
-59,
59,
75,
100,
-50,
77,
48,
10,
85,
-90,
-64,
65,
28,
-50,
40,
-87,
-24,
125,
16,
52,
123,
22,
69,
113,
14,
-13,
36,
24,
-57,
45,
44,
-23,
61,
-31,
-15,
42,
79,
39,
2,
3,
100,
-112,
5,
-64,
46,
-112,
113,
1,
-24,
115,
-92,
-122,
-44,
43,
-39,
8,
38,
103,
33,
4,
-83,
14,
-120,
38,
-1,
47,
-26,
-124,
24,
-61,
99,
-66,
29,
86,
82,
38,
-2,
-7,
13,
31,
124,
7,
-114,
-76,
-73,
-113,
116,
-104,
95,
-53,
-89,
51,
97,
-51,
-94,
93,
71,
126,
-101,
-113,
-10
]
|
The opinion of the court was delivered by
Mason, J. :
Charles H. Tucker, as administrator of the estate of Harry M. Barber, sued Jane Fitzpatrick for the recovery of $1800 alleged to have been borrowed by the defendant from plaintiff’s decedent, her son-in-law. From a judgment for plaintiff defendant prosecutes error. The answer was a general denial. In the course of her testimony the defendant admitted having received from Barber, in his lifetime, the amount of money named, but claimed that the transaction was not a loan, but the payment by Barber of a debt that he owed to her, and upon the issue thus made the entire controversy was waged. The errors assigned relate to the admission of testimony and to the giving and refusing of instructions.
A witness was produced and examined by plaintiff for the purpose of showing that the defendant had specifically admitted that she had borrowed the money and was to pay it back. This witness, over the objection of defendant, was permitted to testify that he had had a conversation with the defendant in which he told her of a number of statements made to him by Barber, to the general effect that the transaction in question was a loan, and asked her if these statements were true, she answering that they were. The objection is made that by pursuing this course the plaintiff was enabled to get before the jury evidence of the self-serving declarations of plaintiff’s decedent. But it is not apparent how the perfectly competent evidence of the defendant’s admissions could have been otherwise introduced. It clearly would not have been permissible for the witness to say in set phrase that the defendant admitted that she had borrowed the money, or that her statements to him had that effect. It was proper that he should detail the entire conversation, notwithstanding the fact that in reproducing his own words it became necessary incidentally to tell what statements he had at the time attributed to Barber.
Objections are also made to the admission of evidence relating to transactions between Barber and a bank with which he had dealings, to the latitude permitted in the cross-examination of one of defendant’s witnesses, and to the allowance of testimony in rebuttal of a part of his evidence, claimed to have been upon collateral matters. The transaction under investigation was necessarily involved to some extent with other business matters, and it does not appear that there was any abuse of discretion in not more closely limiting the scope of the inquiry, although some of the testimony may have borne but remotely upon the main question presented.
A final objection is based upon the refusal of the court to instruct upon the theory that Barber might have paid the money to defendant in satisfaction of a debt owing to the estate of her deceased husband. While the pleadings would have permitted such an issue, the defendant by her own testimony as to the character of the transaction had eliminated it, and it was not error to conform the instructions to this situation.
' The judgment is affirmed.
All the Justices concurring. | [
48,
124,
-24,
-81,
10,
96,
40,
88,
64,
-127,
-73,
87,
-83,
71,
16,
111,
-72,
25,
81,
106,
71,
-78,
7,
35,
-14,
-14,
-6,
29,
-75,
-50,
-12,
-35,
13,
32,
-62,
-43,
102,
-117,
-25,
124,
-114,
-116,
-72,
65,
-7,
64,
48,
59,
22,
77,
113,
31,
-77,
40,
29,
78,
104,
40,
107,
57,
-16,
-15,
-118,
-115,
95,
50,
-77,
52,
-116,
3,
-40,
46,
-112,
49,
-127,
-32,
112,
-74,
-122,
-12,
111,
-119,
8,
102,
102,
33,
101,
-17,
58,
-120,
39,
126,
-67,
-89,
-48,
72,
73,
109,
-66,
-99,
124,
80,
39,
116,
-18,
28,
28,
108,
9,
-97,
-42,
-80,
-119,
124,
-100,
2,
-2,
-125,
20,
113,
-51,
104,
93,
83,
58,
-101,
-106,
-75
]
|
Per Ouriam:
This action was brought against the Bankers’ Union of the World by the beneficiaries of a certificate issued to Florence Pickens by- the Order of Select Friends, a mutual benefit association. Florence Pickens transferred her membership to the Bankers’ Union of the World, by whom payment of her certificate was guaranteed. Judgment was rendered for the plaintiffs, and the Bankers’ Union prosecutes error.
The Order of Select Friends became insolvent, and upon the solicitation of the Bankers’ Union of the World Florence Pickens transferred her membership to that order and was reinsured by it by the issuance to her of a guaranty, or rider, as it is called, instead of a certificate. By the conditions of this guaranty the Bankers’ Union assumed all the obligations of the Select Friends, and agreed to pay to the beneficiaries of Florence Pickens, upon her death, the amount specified in her certificate in that order. The defendant moved to strike certain matters from plaintiffs’ petition, -which motion was denied. This is one of the assignments of error. The allegations of the petition thus attacked may be said to have been surplusage, but the retention of them in the petition, and the denial of the motion to strike out, were not prejudicial to the defendant and no substantial wrong was done.
The plaintiff in error also assigned the overruling of its demurrer to the petition as a ground of error. We think the demurrer was properly overruled. The petition certainly stated facts sufficient, if true, to entitle the plaintiffs to recover.
The defendant’s answer tendered two issues of fact: (1) That Florence Pickens falsely represented the condition of her health in her application for admission into the order; (2) that when Florence Pickens made application for membership in the defendant order she was fatally ill of a pulmonary disease, and was greatly worried over the loss of her insurance in the Select Friends, because of its insolvency; that for the purpose of putting her mind at rest her husband requested one C. C. Holbrook to go to her residence, take her application for membership in the defendant order, and give her the guaranty sued on; that in compliance with such request Holbrook, acting as the agent of the husband of Florence Pickens, did as requested, took her application, issued the guaranty, and assured her that her insurance was safe.
The case was tried by the judge without a jury, who made findings of fact very specifically and in detail. From such findings it appears that every material fact put in issue by the pleadings necessary for plaintiffs to recover was found for plaintiffs, and every material fact relied upon by the defendant as a defense was found against it. There is substantial evidence tending to support such finding.
The judgment of the court below is affirmed. | [
48,
124,
-56,
-19,
8,
-96,
40,
-110,
83,
-95,
37,
83,
-71,
-29,
5,
107,
-29,
61,
-15,
123,
-66,
51,
55,
0,
-46,
-13,
121,
-57,
-79,
111,
-12,
-42,
12,
56,
-54,
-60,
70,
-62,
-63,
-36,
-118,
2,
-120,
-27,
-39,
-56,
48,
123,
80,
79,
117,
-98,
-31,
-82,
25,
67,
44,
104,
-7,
57,
112,
-79,
-113,
12,
-17,
1,
-127,
100,
-100,
39,
-38,
46,
-104,
-79,
1,
-8,
114,
-74,
6,
84,
99,
57,
5,
98,
102,
-127,
32,
-51,
-100,
-116,
6,
46,
-99,
-122,
-110,
109,
89,
8,
-75,
-99,
124,
-112,
-89,
84,
126,
-99,
29,
40,
5,
-113,
-106,
-79,
63,
-80,
-100,
-93,
-18,
3,
48,
85,
-51,
-32,
93,
71,
59,
-109,
-113,
-106
]
|
The opinion of the court was delivered by
Burch, J. ;
On April 9, 1902, a complaint was filed before a justice of the peace of Logan county, charging appellant with the larceny of certain cattle. On the same day a warrant for his arrest was issued and served, which followed the language of the complaint in describing the offense. He waived a preliminary examination, and on the same day an information was filed in the district court of the county named charging him with larceny of the cattle described in the complaint and warrant. To this in formación he pleaded not guilty. On June 30, 1902, an amended information in two counts was filed, charging him in the first with larceny as before, and attempting to charge him in the second with receiving stolen cattle. A plea in abatement was duly filed to the second count, alleging that appellant was not a fugitive from justice, had not been given a preliminary examination upon the matters charged, and had not waived that step in the proceedings. A motion to quash the second count of the information was likewise duly filed, setting up two-grounds of insufficiency, one being indefiniteness and uncertainty in the allegations made, and the other the want of sufficient allegations to constitute a public offense. The motion and plea were both overruled, and appellant pleaded not guilty.
After several trials, and after a change of venue to Wallace county, a verdict was finally returned against appellant for receiving stolen property, as charged in the second count. Motions for a new trial and in arrest of judgment were made and denied, and judgment duly rendered upon the verdict. On this appeal it is urged that the motions to quash and in arrest of judgment should have been allowed because no property was described in the second count of the information, the description given being simply “the aforesaid neat cattle.55
It is elementary law in this state that each count of an information must in itself state all the facts necessary to constitute the gravamen of the offense. Each one must be as complete as if it stood alone and were the sole pleading. This is the rule even in civil cases ; and even in civil cases when, for the sake of brevity, avail is made of matter already alleged elsewhere it must be distinctly and intelligibly referred to, and by such reference must be incorporated into, and made a part of, the adopting count. (Gilchrist v. Schmidling, 12 Kan. 263, 269, and cases there cited; L. N. & S. Rly. Co. v. Wilkins, 45 id. 674, 26 Pac. 16.)
Greater laxity cannot be permitted in criminal cases.
“On the face of the indictment, ‘ every separate count should charge the defendant as if he had committed a distinct offense, because it is upon the principle of the joinder of offenses that the joinder of counts is admitted.’
“Each count in an indictment must be sufficient in itself, and averments in one cannot aid defects in another.
“To some extent the pleader may avoid repetitions by referring from one count to another.
“The reference must be so full and distinct as, in effect, to incorporate the matter going before with that in the count wherein it is made.’’ (1 Bish. New Crim. Proc. §§ 426, 429, 431. See, also, 10 Encyc. Pl. & Pr. 540 et seq.)
Evidently the pleader intended the words “the aforesaid’’ to relate to the cattle fully described in the first count, but they were inadequate to complete the second count. As used, the scope of their reference is confined to the count in which they are found, and since no description of cattle appears there the charge was simply that the appellant received neat cattle. This case bears some analogy to that of Regina v. Martin, 9 Car. & P. 215, used by Bishop to illustrate the text already quoted.
“A first count charged an assault on ‘Esther Ricketts, an infant above the age of ten and under the age of twelve years,’ with intent to carnally know her ; the second charged a different form of attempt on ‘the said Esther Ricketts.’ Thereupon this reference was held not to carry with it the allegation in the first count that Esther Ricketts was 1 an infant above the age of ten and under the age of twelve years.’” (1 Bish. New Crim. Proc. §431.)
So, here, the words “the aforesaid” preceding the words ‘'neat cattle” could not transfer to the second count the allegations of number, sex, age, color and brands characterizing the cattle described in the first count.
Without an identification of the stolen property received, the defendant cannot know the charge against him, and the record of his conviction or acquittal can afford him no protection against a subsequent prosecution. Therefore, it is the rule that a failure to describe with accuracy the property involved is fatal, unless it be averred that a further description is unknown. (17 Encyc. Pl. & Pr. 889, 890; Rap. Larc. & Kind. Off. § 317; 2 Bish. New Crim. Proc. § 982.) Such being the law, the motion to quash and the motion in arrest of judgment were both well founded.
A preliminary examination is a necessary step in the prosecution of a felony by information unless it be waived, or unless the party charged be a fugitive from justice. (Gen. Stat. 1901, § 5510; The State v. Goetz, 65 Kan. 125, 127, 69 Pac. 187.) Therefore, it is important to determine if appellant has waived such an investigation of the matters made the subject of the second count of the information — the only one now -in controversy.
There is no doubt that. a count for larceny and a count for receiving the stolen property described in the larceny count may be joined in the same information. (The State v. Blakesley, 43 Kan. 250, 23 Pac. 570; 17 Encyc. Pl. & Pr. 896; Rap. Larc. & Kind. Off. §321; 2 Bish. New Crim. Proc. §981.) Likewise, there is no doubt that a defendant, after a preliminary examination has been held, may be bound over for a felony different from that charged in the complaint and warrant. (Gen. Stat. 1901, §5495; Redmond v. The State, 12 Kan. 172.) The defendant must take notice from the evidence introduced on the preliminary examination, as well as from the papers in the case, of the nature and character of the offense charged against him. (The State v. Smith, 57 Kan. 673, 47 Pac. 541; The State v. Bailey, 32 id. 83, 3 Pac. 769.) It is also true that if a single felony be charged in the warrant, and the defendant waive •a preliminary examination, or be bound over for that offense, the prosecutor may charge the single crime in as many different counts as may be necessary to meet the contingencies of the proof. (The State v. Spaulding, 24 Kan. 1.) But the rule seems to be that if the warrant charge a single felony, and the defendant waive a preliminary examination, the prosecutor is not at liberty to add to the information a count for a separate and independent offense. (The State v. Jarrett, 46 Kan. 754, 27 Pac. 146.) The language of the statute permitting a prosecution for a felony other than that charged in the warrant apparently limits the right to cases in which it appears upon a hearing that the defendant is guilty of such other offense. In The State v. Spaulding, 24 Kan. 1, 4, it was said :
“The prosecutor, in preparing the information, may use many counts, varying in them the formal and non-essential matters of the crime. He may not add a new offense. To larceny he may not add robbery ; nor to murder arson. Neither may he add to the larceny of one piece of property, the larceny of another. He may not substitute one offense for another ; but he may, by several counts, guard against the contingencies of the testimony.” (See, also, Turner v. People, 33 Mich. 363.)
The authorities are unanimous to the effect that under statutes similar to that of this state the offense of receiving stolen property is a distinct, separate and independent crime. (24 A. & E. Encycl. of L., 2d ed., 44; Rap. Larc. & Kind. Off. § 307.) This being true, the waiver by appellant of a preliminary examination on a warrant charging him with larceny did not authorize the county attorney to file an information against him for receiving stolen property, and the plea in abatement should have been sustained.
The state urges a number of matters against the right of appellant now to insist upon the plea in abatement, the motion to quash, and the motion in arrest of judgment, but the record discloses that such right has been fairly preserved.
Many assignments of error relating to proceedings had upon the trial of the case need no discussion, since the same questions may not arise again.
The judgment of the district court is reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
-16,
-28,
-67,
61,
42,
96,
42,
-68,
65,
-93,
118,
115,
-19,
-46,
4,
113,
82,
61,
85,
105,
-26,
-74,
27,
-63,
34,
-13,
-111,
-43,
-75,
75,
-84,
-10,
75,
48,
-126,
-107,
6,
72,
-59,
92,
-114,
5,
41,
-59,
-61,
64,
60,
105,
22,
10,
113,
15,
-13,
42,
30,
67,
41,
44,
75,
61,
-16,
-16,
-70,
7,
109,
18,
-93,
6,
-72,
5,
72,
46,
-104,
113,
0,
-24,
115,
-106,
-126,
116,
77,
-103,
8,
38,
98,
35,
28,
-49,
-96,
-120,
47,
63,
-99,
-90,
-112,
72,
-30,
32,
-106,
-99,
117,
82,
7,
-6,
-25,
5,
89,
108,
-121,
-18,
-80,
-73,
-113,
60,
-110,
83,
-13,
-91,
50,
113,
-52,
-30,
92,
71,
120,
-101,
-114,
-43
]
|
Per Curiam:
Upon the pleadings filed herein, and the admissions of the parties, it is determined that plaintiffs are entitled to have their names placed and printed upon the official ballot as the candidates of the republican party for the various offices to which they claim to have been nominated. The further hearing of the cause is continued to afford defendant opportunity seasonably to make return that he has so placed such names on such ballot. Upon this being done the question of the taxing of costs will be decided. | [
-80,
-20,
-91,
-68,
9,
32,
-78,
-114,
123,
-95,
103,
19,
-1,
-118,
-107,
101,
-13,
-85,
117,
123,
-115,
-93,
103,
-62,
-4,
-77,
-77,
87,
-67,
79,
-17,
-4,
76,
-7,
-54,
-43,
102,
-126,
-91,
20,
-90,
11,
-87,
-19,
-15,
97,
60,
123,
-46,
75,
113,
-42,
-23,
60,
26,
67,
8,
40,
-7,
73,
-63,
-71,
-100,
-124,
105,
7,
-95,
102,
26,
-57,
-8,
14,
-112,
56,
0,
-24,
114,
-90,
6,
-44,
9,
-71,
-120,
102,
96,
48,
-95,
-3,
-40,
-96,
125,
-33,
29,
-25,
83,
25,
-117,
42,
-73,
-33,
118,
16,
7,
126,
-27,
-43,
31,
44,
11,
-114,
-42,
-77,
-41,
98,
-114,
2,
-49,
19,
16,
65,
-56,
118,
86,
67,
48,
-109,
-50,
-90
]
|
The opinion of the court was delivered by
Cunningham, J. :
This was an action of mandamus, brought by the defendant in error, in the district court of Shawnee county, to compel the plaintiff in error, who is county clerk of said county, to issue to the defendant in error books of affidavits for the use of druggists, as provided in section 1 of chapter 339, Laws of 1903. The alternative writ set out the following facts : Lake was a citizen of the state of Kansas, and was, and had been for several years last past, a registered pharmacist, lawfully and in good faith engaged personally in the business of a druggist in the second ward of the city of Topeka, in Shawnee county, as a proprietor of a drug-store there being conducted, and having in his said business, exclusive of intoxicating liquors and fixtures, a stock of drugs of the value of more than $1000. He was eligible to receive a permit as a druggist under the laws of Kansas, and on the 10th day of August, 1903, there was granted to him, as such druggist, by the probate court of Shawnee county, a druggist's permit in due form to sell intoxicating liquors for medical, mechanical and scientific purposes, for the period of one year from that date. He qualified as provided by law, and had ever since that time received from the county clerk books of numbered blank affidavits in series of 100 each, as provided by law, to be used, made and sworn to by those who wished to purchase from him intoxicating liquors for the excepted purposes. On the 1st day of February, 1904, the county clerk, after demand upon him therefor, the cost thereof being tendered, refused to deliver another book of blank affidavits to the petitioner. The only excuse which the county clerk had for such refusal was that on the 25th of January, 1904, the probate judge had revoked and canceled the permit theretofore issued to Lake. Such action was taken by the judge without there being presented to him a petition signed by twenty-five men and twenty-five women residing in the ward where Lake was doing business. It was claimed that the order of revocation was void and offered no excuse for the county clerk’s refusal, for the following reasons :
“1. That said proceeding was unauthorized by any statute of the state of Kansas, the probate judge having no jurisdiction or power to act in such matter except upon the verified petition of twenty-five reputable men and twenty-five reputable women resident in the ward where the business is carried on.
“ 2. That if the statute authorizing the cancelation of druggists’ permits be not so construed, so that said statute vests in said probate judge arbitrary power to cancel and revoke such permits of his own motion and for any reason he may deem proper, notice and a hearing being only a concession personally accorded by him, then said statute is void because in conflict with the fourteenth amendment to the constitution of the United States, as depriving druggists of their property and their liberty to carry on a lawful business which is not a franchise, without due process of law, and as depriving the persons affected by said statute the equal protection of the laws, and as abridging the privileges and immunities of citizens of the United States, said W. F. Lake being such a citizen.”
An answer to this alternative writ admitted that Lake was a registered pharmacist and engaged personally in the business of a druggist at the place which he designated, and had the amount of stock of drugs as alleged, and that he was eligible to have a permit to sell intoxicating liquors under the laws of Kansas ; that such permit had been issued to him as alleged, and that the defendant had theretofore issued as demanded books of blank affidavits as provided by law. It further admitted that about the 1st day of February, 1904, the defendant, upon the demand of Lake, refused, and still refuses, to issue other books of blank affidavits to him, and as a justification for such refusal he alleged that on the 25th of January, 1904, the probate judge of Shawnee county revoked the permit which Lake had theretofore held by the entry of a proper order and decree to that effect; that such order and decree had been made by the judge upon a verified petition presented to him and signed by one McCullum, and after a due and proper hearing before him had upon notice to Lake; that Lake appeared in said proceeding and resisted the making of the order ; that the refusal to comply with the'request of Lake for the issuance of blank affidavits was in the discharge of his duty, as he understood his duty to be, and in accordance with the law, as he understood the law to be, to wit, that when a permit that has once been issued by a probate judge of the county has subsequently by such judge been revoked, then and thereafter, while such order of revocation stands, the county clerk has no right to deliver to the person whose permit had thus been revoked books of numbered blank affidavits,, and that he has no right to issue such books to any one except those holding an unrevoked and uncanceled permit.
Upon the hearing, the district court made the alternative writ peremptory, and directed the county clerk to issue thereafter the books of blank affidavits, as provided by law. To reverse this order, the plaintiff in error prosecutes this proceeding.
The defendant in error moves to dismiss the petition because the order of the district court has been complied with by the payment of the costs and the issuance of the books of blank affidavits in series as required up to the present time. It is shown by the affidavits that the costs were paid by Lake, with the knowledge and consent of the plaintiff in error ; and that the order of the court relative to the issuance of the blank affidavits has been complied with from time to time upon the demand of Lake, and that the plaintiff in error will be compelled to furnish the same from month to month until the expiration of Lake’s permit, in August, 1904. We do not think that this is such a showing of compliance with the court’s order as to make the questions raised merely speculative, or moot. Certainly the payment of the costs by the defendant in error himself, even by and with the consent of the plaintiff in error, would not have this effect; nor would the doing of a number of a continued series of required acts, less than the entire number, have this effect. The order of the court seems to have contemplated the performance of a series of like, yet disassociated, acts during a given term, and the questions raised affect the performance of these required acts during the remainder of the unexpired term as vitally as before the order had in part been complied with. So that the facts here shown do not present a case where an order sought to be reversed has been fully performed.
We turn now to a discussion of the meritorious matters involved. It is contended that the order of the probate judge made January 25,1904, revoking Lake’s permit, was void because made, without a petition therefor; that a petition signed by twenty-five men and twenty-five women, residents of the ward, was essential to give jurisdiction to the probate judge to act. The solution of this question calls for an examination of the statutes. Prior to 1885 no provision is found in the statute for the revocation of a permit once granted. By the Laws of that year, section 1 of chapter 149, there was committed to the probate judge the right, at any time, in his discretion, to revoke such permit. By chapter 165 of the Laws of 1887 the law was still further amended. The absolute discretion in the matter of revocation was left in this section as found in the Laws of 1885, and as it remains in the present law. Added thereto was the provision that if at any time there should be filed with the probate judge a petition containing certain allegations therein specified — that a druggist, naming him, holding a permit was not in good faith conforming to the provisions of the act, signed by twenty-five reputable men and twenty-five reputable women, residents of the township, city or ward where the druggist was carrying on his business and requesting a cancelation of the druggist’s permit — the probate judge should proceed after due citation to inquire into the allegations of this petition, and if found true should revoke the permit.
It is the contention of the defendant in error that this latter provision served to take away from the probate judge the power to revoke a permit at his discretion at any time ; that this provision and the one requiring him to proceed upon petition are so inconsistent, each with the other, that they cannot stand together, and that the only way in which a permit can be legally canceled is by instituting proceedings therefor by a petition signed by the requisite number of men and women, as above indicated. We might further remark that after the adding of. the provision relative to the filing of the petition authority is given for an appeal from the decision of the probate judge, and then follows a specific provision: “This shall not prevent the probate judge from canceling any permit at any time on his own motion or otherwise.”
We are of the opinion that- there is no conflict between the provision granting an absolute discretion to the probate judge to revoke a permit at any time, and the other provision requiring him to. investigate the propriety of such revocation upon the presentation of the petition mentioned; at least, no such fundamental disagreement as necessarily to destroy the efficacy of either provision. Both may stand; both may find scope for operation under proper circumstances. A probate judge may become informed of the breach of the law on the part of a druggist holding a permit from many sources. He may choose to act upon his own motion upon the information thus derived. Such action is authorized by the provision contained in the body of the law. On the other hand, he may not be possessed of any information concerning the infraction of the law by the druggist, or being informed concerning such infraction may not choose to act, but when the petition which is provided for, as above indicated, is presented to him he is thereupon compelled to act, and, acting for or against the revocation of the permit, there may be an appeal.
It is a matter of the commonest knowledge that the prohibition of the illegal sale of intoxicating liquors has come to be the settled policy of the state ; that the every act of the lawmakers for the past quarter of a century has been toward the strengthening of the law rather than its weakening, and we may well conceive that the purpose of the act in question was to compel action on the part of an unwilling' probate judge rather than to take away discretion from a willing one. We do not deny that two provisions of a statute, even though found in the same section, might be so inconsistent that the one would be made inoperative by the other, but certainly the rule in such a case could not be less stringent than the rule as to repeals by implication, to wit, that the implication must be a necessary one, and that the two provisions could in no form or place operate together. If such were the case here we might well doubt whether the last provision — the one requiring a petition — was not inoperative rather than the first, because there is found the explicit proviso that the requirements in the matter of a petition should not be so construed as to prevent the probate judge from canceling a permit on his own motion. It, however, is not our duty to inquire whether the different provisions of the law are logical, sensible, rational, or even harmonious, but whether they are so repugnant that both cannot stand. If, for any purpose or under any circumstances, their provisions can both find scope for action we must give efficacy to both.
“If the provisions of the.old act and the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.” (Stephens v. Ballon, 27 Kan. 594, 601; Hornaday v. The State, 63 id. 499, 65 Pac. 656; Noecker v. Noecker, 66 id. 347, 71 Pac. 815.)
Counsel urges that power to do a thing cannot be granted by a proviso. This is very true, but counsel overlook the fact that this discretionary power is not granted to the probate judge by the quoted proviso ; it is found in the body of the act. The quoted proviso only serves to explain and limit the operation of the provisions of that portion of the act providing for a petition and to the action of the probate judge thereunder. Counsel argues with much vigor that if the clause giving the probate judge discretion shall stand, a conflict might arise between him and the district court; that when an order of the probate judge had been reversed on appeal, the probate judge might in voke Ms discretionary power and again interfere. The possiMlity that such a conflict might arise affords no reason to declare so plain a provision of the statute inoperative ; a sufficient answer would be that it might not occur.
We are clearly of the opinion that a probate judge has jurisdiction under the law as it now stands to revoke a druggist’s permit at any time in his discretion, and if so, he may do this upon the petition of one or more petitioners, as was done in this case ; that the order of the probate judge of Shawnee county revoking Lake’s permit was in perfect accord with the law and binding upon the county clerk, so that he could not legally issue to Lake the blank book of affidavits.
Counsel further contends that Lake, being engaged in the legitimate business of selling liquors for the excepted constitutional purposes, cannot be denied a permit so to do, or having such permit cannot be deprived of it; that as a matter of right he may carry on any legitimate and lawful business uninterfered with by the arbitrary discretion of any one, and that the law, as we have hereinbefore construed it to be, is therefore unconstitutional. This contention has heretofore been decided by this court adversely to this view. (The State v. Durein, ante, p. 1, 78 Pac. 152.)
We are of the opinion that the action of the probate judge, in revoking the permit held by Lake, was in all respects regular and fully authorized by law. This being so, Lake had no right to be furnished with the books of blank affidavits by the county clerk, and hence the order and decree of the district court directing the county clerk to do so were erroneous, and its action is reversed.
All the Justices concurring. | [
-78,
-18,
-4,
29,
58,
-32,
10,
-78,
91,
-77,
53,
115,
-19,
-46,
13,
107,
-14,
109,
112,
121,
-30,
-73,
23,
-23,
-42,
-13,
-47,
-43,
-79,
109,
-26,
-41,
77,
48,
10,
21,
-58,
64,
-63,
-36,
-114,
32,
-119,
-64,
91,
-119,
54,
57,
39,
11,
113,
14,
-13,
42,
30,
-61,
105,
44,
-53,
-98,
88,
-80,
-101,
-107,
79,
22,
17,
6,
-100,
-123,
88,
47,
-102,
49,
3,
-8,
115,
-74,
-122,
116,
15,
-119,
104,
102,
34,
97,
21,
-17,
-88,
-84,
30,
59,
-99,
-89,
-110,
88,
98,
-120,
-106,
-99,
116,
50,
3,
-2,
-21,
23,
25,
60,
2,
-101,
-74,
-77,
-113,
60,
-114,
31,
-21,
-94,
48,
81,
-59,
100,
92,
103,
112,
27,
-113,
-112
]
|
The opinion of the court Avas delivered by
Brewer, J.:
Is a forthcoming bond in attachment, running to the officer and not to the plaintiff _in the attachment, Amid? This is the first and substantial question in the case.. The statute provides tliat it shall run to the plaintiff: Code, •.§ 199, (Gen. Stat.) p. 666.) This therefore does not conform to the statute, and cannot be supported as a statutory bond. But it does not follow that this bond has no validity. It may be good as a common-law obligation. It is good as .such, unless it contravene public policy, or violate a statute: Shepherd v. Collins, 12 Iowa, 570; Garretson v. Reeder, 23 Iowa, 21; Barnes v. Webster, 16 Mo., 258; Morse v. Hodsden, 6 Mass., 314; Bunall v. Acker, 23 Wend., 606; Lewis v. Stout, 22 Wis., 234. In this last case the bond in controversy ran to the governor, and not to the state, as it was claimed it should. The court uses this language upon that question: - “But if I am wrong in this, and the bond should as is contended, have been executed to the state instead of the governor, then, though it is not good as a statutory bond, it is nevertheless binding as a voluntary obligation, upon which an action at common law may be maintained. The authorities on this point are too numerous to be cited, and as is ■observed in one of them, there is no case to be found contra•dicting the position.” The case from 23 Iowa, 21, was on .a forthcoming bond in attachment. The condition did not conform to the statute. The court says: “ Why not valid as .a common-law obligation? The sheriff had lawful possession ■of property upon which the plaintiff had a valid lien. Defendants wished it released. To effect this they voluntarily -offered to substitute their joint liability in the place of the property. To this the sheriff agreed. Defendants have received the consideration for their undertaking, viz., the release of the property. No law or no public policy was violated by the giving and accepting of this bond. And ■defendants having received the consideration therefor, must be held liable if they have not kept its conditions.” Could language be used more appropriate to the facts of this case? Both the officer and the defendants were parties competent to contract. Ample consideration was received for their obligation, namely, the release of the property from the possession of the officer. The contract of the officer involved no derelic tion of duty. It was not a contract to omit the performance of some duty, as was the case in Cole, Adm’r. v. Parker, 7 Iowa, 168, cited by counsel for plaintiffs in error; nor to do some act forbidden by statute, as in the case of Winter v. Kinney, 1 Comst., 365. The officer had levied the attachment, had possession of the property, and thereby security to the plaintiff for such judgment as he might thereafter obtain. "What further duty did he owe to the plaintiff? .Only to;, preserve the property, or its equivalent in value, to answer the judgment. He surrenders the possession of that property to the defendant, for that which he accepts as an equivalent.’ The plaintiff also accepts it as an equivalent. Can the defendants now be heard to deny that it is an equivalent? In another view, he places this property in the possession of defendants, as he would store it in a warehouse, (if merchandise,) or place it with a farmer, (if cattle.) Could tire warehouseman or the farmer refuse to deliver it when demanded? and if they did refuse, and converted the property, could they not be compelled'to pay the value? Rut we need not pursue this farther. Both reason and authority unite in refusing to allow these defendants to reap the benefits of their contract, and then deny its validity.
II. A second important question arises on the instructions. John B. Johnson was principal in this bond, and Thompson Jones surety. In the body of the bond appeared the names of “John B. Johnson, Thompson Jones and John R. Davis.” Jones .claimed that he signed it only upon condition that Davis should also sign as co-surety. Davis did not sign. Hence Jones insisted that he was not bound. The bond was signed by both Johnson and Jones in the presence of the obligee, the sheriff. He denied that there was any such condition, and testified that Jones executed the bond absolutely, and -without any agreement or stipulation whatever. Upon these facts three questions arise: First, Was the instrument so incomplete that it required the signature of Davis to make it a valid instrument? Second, Does the presence of Davis’ name.in the body of the instrument raise any presumption that it was not to be binding on either until signed by Davis? And Third, If Jones made any such condition, what effect did it have on his liability?
Upon the first question ■ there is little room for doubt. .Such an instrument is valid and binding upon the party .signing, if executed by him absolutely and without conditions. So the district judge charged, and his charge was '■correct. No authorities need to be cited to sustain this proposition.
Upon the second question the learned judge charged that “ the mere fact that Davis’ name is written in the body of the bond raises no presumption that Jones signed it upon condition that Davis would sign it.” In other words, if Jones signed the bond, saying nothing, the law presumes that he intended thereby to bind himself absolutely and not conditionally. There is some confusion and contradiction between the authorities upon this question; but taking the instruction as applied to the facts in this case, we think it correct. The bond was executed by Jones in the presence of the obligee, the sheriff. Now if under these circumstances he executed the bond without saying anything, it seems to us that the law will hold that he intended thereby to create an absolute •obligation. Execution includes two things, signing and ■delivering. A bond may be signed by a party, and never become binding because never delivered. Here, without any dispute, the bond was signed by Jones in the presence and left in the possession of the sheriff Then, as it seems to us, no presumption can arise to avoid liability. Something must be shown by the obligor or he will be held bound. In Parker v. Bradley 2 Hill, 586, Cowen, J., says: “ It has I see been holdcn in a late case that a signer cannot insist on a contrary intent, as qualifying the execution, unless it appear he declared at the time of signing that he would not be bound without the signatures of others named in the bond. If he execute it generally without such declaration he shall be holden, though he stand alone.” See also Haskins v. Lombard, 4 Shepley, 143; Johnson v. Baker, 4 Barn. & Ald., 440; Cutter v. Whit timore, 10 Mass., 442; Scott v. Whipple, 5 Green, 336. In Fletcher v. Austin, 11 Vermont, 449, the parties signing the bond directed that it should not be delivered until the other obligors named in the body of the bond should also sign. It was delivered in violation of this direction. The court held it no delivery. In Sharp v. The United States, 4 Watts, 21, a suit on a collector’s bond, the law required that the bond bo executed with two sureties. Two names appeared on the face; one only signed. The court held that “he had a right to believe that it was the intention of all the parties that the bond was to be taken in strict conformity with the act of congress,” and that therefore his signature was conditional. In Bibb v. Read, 3 Ala., 88, and Pepper v. The State, 22 Ind., 399, the names of some sureties were obtained upon condition that others should sign, and then the bonds were delivered without such additional names. This was held no delivery. In McCramer v. Thompson, 7 Am. Law Reg., N. S., 92, the note was signed by three sureties. The name of the first was then erased. In this condition it was delivered to the payee. The court held that such erasure was sufficient to put him upon inquiry as to whether such erasure was with the consent of the other sureties. We might pursue this examination further for there arc many authorities bearing with more or less directness upon this question. We are satisfied with the rule as laid down in the instructions above quoted. It is true, that on application of plaintiff in error the court gave an instruction seemingly inconsistent with the one quoted; but as that was far more favorable to him than this, and as this we have seen is correct, we hardly think him prejudiced thereby. Eor if the jury respected this instruction it was all plaintiff in error had a right to ask. If they respected that it was more.
Third: The court instructed the jury that if Jones made any such condition to his signing as he claimed, he was discharged from liability. In this the plaintiff docs not claim any, error, nor indeed could he.
Again it is objected that the court erred in admitting 'in evidence a chattel mortgage given by Johnson to secure Jones for going security on this bond. We see no error in this. Again, the defendant Jones, after testifying to all the conversation at tlie time of signing the bond, was asked this question: “State whether or not you ever dispensed with the execution of this bond by Davis?” Objection to this question was sustained. Afterwards he testified that he never had any other conversation with the sheriff about the matter. As the whole case turned upon the conversations at the time of signing the bond, and as no pretense or claim was made that any subsequent act or word of Jones’ affected his liability, we do not see how he was prejudiced by this ruling. The judgment will be affirmed.
All the Justices concurring. | [
112,
120,
-12,
-65,
-118,
34,
43,
-104,
-15,
-41,
-89,
83,
-87,
-31,
16,
59,
57,
119,
101,
89,
85,
-74,
39,
97,
-10,
-77,
-37,
-59,
51,
73,
-29,
78,
77,
60,
-118,
-47,
38,
-38,
-111,
-40,
-50,
-115,
45,
-31,
-47,
-56,
48,
95,
18,
-53,
97,
-98,
-21,
38,
16,
67,
-23,
43,
-54,
-65,
-64,
120,
-103,
15,
127,
6,
-109,
6,
-8,
103,
-40,
44,
-112,
49,
9,
-22,
122,
-108,
-122,
-76,
109,
-101,
-88,
66,
42,
1,
20,
-7,
-72,
-120,
-84,
-50,
39,
-90,
-47,
88,
43,
1,
-121,
-99,
6,
32,
-26,
-2,
-86,
29,
95,
-28,
6,
-54,
-14,
-75,
13,
116,
50,
3,
-53,
97,
16,
65,
-59,
-20,
84,
65,
16,
91,
-114,
-2
]
|
The opinion of the court was delivered by
Brewer, J.:
This is an original proceeding in this court. Plaintiff, who is a minister of the gospel, a preacher of the Methodist Episcopal Church, and who was properly appointed and designated by the regular church authorities to take charge as pastor of the First German Society of the Methodist Episcopal Church of Wyandotte City, for the year ■commencing September, 1871, applies to this court for a writ of mandamus to compel the defendants, who are the trustees of said society, to admit him to the dutie's and office ■of such pastor, and to occupy the church edifice of said society, and preach in its pulpit. There are two questions, one of fact-, and the other of law. The question of fact is, whether the defendants have excluded tlje plaintiff from the pulpit, the church, and the pastorate. And the question of law is, whether and to what extent, if they have so excluded him, the courts will interfere.
In regard to the first question much testimony was offered on both sides. Without noticing it in detail, it is enough to say that it satisfies us that there was an exclusion of the plaintiff by the defendants. The testimony is not very strong, and does not point to any acts of personal violence. Nor do we think a forcible collision was necessary, before the plaintiff could bring his cause into court.
To what extent will the courts -interfere? In order to fully answer this question it" will be necessary to consider certain facts which anteceded in point of time this controversy between the parties. In August 1866 Mathias Splitlog conveyed a lot in Wyandotte City unto Jacob Munzenmeyer, and others, trustees of the First German Society of the Methodist Episcopal Church. The conveyance recites that it is in trust “that they shall erect and build, or cause to be erected and built, hereon, a house or place of worship for the use of the members of the Methodist Episcopal Church in the United States of America, according to the rules and discipline -which from time to time may be agreed upon and adopted by the ministers and preachers of the said church at their general conferences in the United States of America, and. in further trust and confidence that they shall at all times forever after permit such ministers of the gospel and preachers belonging to the said church as shall from time to - time-be duly authorized by the general conference of the ministers, and preachers of the said Methodist Episcopal Church, or by the annual conference authorized by the said general conference, to preach and expound God’s Holy Word therein.” Upon this lot the church edifice from which plaintiff was excluded, was built. We have copied this recital of the conveyance, in full, because; as it seems to us, it defines the-boundaries of our right to interfere. By the conveyance of this lot, and the erection thereon of the church- building, a trust was created whiph courts of equity will enforce. We-cannot compel an individual to attend worship in any place, nor remain connected with any church, nor to receive any one as his pastor. These are matters which are relegated to the domain of the individual conscience, and over which neither legislature nor court can exercise any control. The religious freedom guaranteed by our constitution, means absolute personal independence therein. All the defendants can withdraw from the society of which they are now trustees, and connect themselves with other existing religious organizations, or form a new one, or remain disconnected from all;, and -no power is known to the law to restrain them. We do not of course mean to say that any existing society is under-obligations to admit all who seek admission. One man’s-liberty is not another man’s restraints. All being free, any-existing society may admit or reject whom it pleases. Yet each one can leave when he pleases, and go wherever he may find reception. But with regard to the church lot, and-'edifice,, the temporalities of the church, whenever they are held in trust, courts of equity will interfere and see that the trust is executed, and the property preserved in such manner as will •accomplish the purpose of the grantor of the trust. Here the trust created is, that the trustees shall permit the duly ■authorized ministers of the M. E. Church to occupy the pulpit, and expound God’s Holy Word therein. The plaintiff is such authorized minister. If they hinder him from preaching in this church, they are thwarting the expressed intention •of the donor, and diverting the property from the channel of the trust in which ho placed it. At this point the coprts will interfere, and restrain any diversion of the property from the trust. The People v. Steele, 2 Barb., 397. The peremptory writ must therefore issue, commanding defendants to''admit plaintiff to their church edifice, and to permit him to occupy and .preach.-in its-pulpit, and to refrain fróm all -interference with him in the discharge of his duties therewith connected.
Plaintiff also asks that damages should be awarded him. As he has been all this time the legal pastor of this society, he can recover whatever salary may be due him in an ordinary action at law. We do not think therefore any allowance should be made in this proceeding. The judgment of the • court carries with it against the defendants all costs.
All the Justices concurring. | [
-75,
-22,
-8,
-116,
10,
-96,
34,
-100,
18,
-29,
-92,
115,
-23,
-37,
1,
61,
-10,
45,
-47,
107,
-42,
-73,
71,
-24,
-16,
-13,
-5,
-59,
-79,
76,
-11,
79,
73,
32,
74,
-35,
-57,
-56,
-51,
-108,
-122,
4,
41,
-22,
-48,
-55,
52,
123,
70,
79,
21,
-66,
-13,
42,
24,
-61,
105,
44,
-49,
-87,
112,
-71,
-98,
23,
77,
14,
3,
36,
-104,
-125,
104,
60,
-112,
49,
15,
-4,
115,
-90,
-122,
-11,
111,
-7,
44,
118,
102,
33,
56,
-26,
-32,
-103,
78,
-65,
-99,
-25,
-78,
73,
-30,
9,
-74,
-101,
117,
80,
7,
-4,
-18,
20,
16,
108,
5,
-113,
-28,
-75,
-117,
48,
-98,
7,
-29,
-127,
49,
113,
-55,
118,
93,
67,
50,
-111,
-66,
-79
]
|
The opinion of the court was delivered by
Valentine, J.:
On the 24th of December 1864, John T. J ones, an adopted Ottawa Indian, had a claim pending in the Indian Department against the government of the United States for the sum of $6,700. The claim was originally larger, but it had been referred to the superintendent of Indian affairs for the central superintendency, who reported in favor of allowing that amount. The claim was for injuries done to the claimant’s property in the year 1856. On the 24th of December 1864 Jones entered into an agreement in writing, with Blacldidge, as follows:
“Articles of agreement this day made between John T. Jones, of Franklin - county, Kansas,, and A. N. Blacldidge, of Lawrence, Kansas, witnesseth: That the said Jones has this day employed the said Blacldidge to prosecute and collect a claim for him and against the government of the United States, for the sum of $6,700, and for which service the said Jones agrees to pay the said Blacldidge twenty per centum ■on the amount of said claim when collected.
“Ottawa, December 24th, 1864. John T. Jones.”
At the time this agreement was made, an act of Congress, entitled “An act to prevent frauds upon the treasury of the United States,” approved February 26th, 1853, was in force. Section one of said act reads as follows:
“Be it enacted, etc., That all transfers and assignments hereafter made of any claim upon the United States, or any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or any part or share thereof, shall be absolutely null and void, unless the same shall be freely made and executed in the presence of at least two attesting witnesses after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof.” (10 U. S. Stat. at Large, 170, § 1.)
In a treaty with the Ottawas, of February 23d, 1867, a provision was inserted for the payment of this claim. (15 Stat. at Large, 518, art. 18.) And by an act of Congress of April 10th 1869 an appropriation was made for the payment of the same. (16 Stat. at Large, 34, Ottawas.) After this appropriation was made, Jones drew the whole amount of the claim, and then refused to pay Blacklidge any portion thereof. Blacklidge is now seeking by this action to recover his share thereof. Can he do it ?
The validity of such contract or agreement is the first and principal question in the case. The question was raised in various ways in the court below, and now it comes Squarely before this court. We do not hesitate to say that the contract was absolutely void. It was champertous in its nature, against public policy, and 'just such a contract as section one of the act of congress to prevent frauds upon the treasury of the United States wisely prohibited. It was a conditional transfer, or assignment, of a part, share, or interest in a claim against the United States, without attesting witnesses, and before a warrant for the payment thereof was issued. And it makes no difference that the consideration therefor were services to be performed in the future. The transfer or assignment of a claim is within the statute, (if otherwise' within,) “ whatever may be the consideration therefor.” Any consideration that will support a contract will bring it within the statute, if it is within. Neither is it necessary that the interest transferred should be absolute, or vested, in order to-come within the statute. A contingent or conditional interest is sufficient. The statute is express, that a conditional trans fer or assignment is sufficient; and if the transfer or assignment be conditional, the interest in the thing transferred or assigned must also of necessity be conditional. A contingent interest then, dependent upon performing' the services, dependent upon collecting the claim, is a sufficient interest to bring the matter within the statute, if otherwise within. The defendant in error has filed no brief nor made any argument in this court; but from the record in the case we should judge, that in .the court below, he at one time claimed that he obtained no interest, conditional or otherwise, in the claim itself, by virtue of said contract, which was prohibited by said act, and therefore that the contract was valid; and at another time he claimed that he had such an absolute and vested interest in the claim, that his power to collect the same could not be revoked, for any reason, by Jones—that his authority to collect said claim was “a power coupled with an interest.” Probably neither of those claims was entirely correct. Certainly we think the first was erroneous. We suppose that it will hardly be claimed, that if the contract merely contemplated the collection of the money by Blacklidge, the paying it over to Jones, and then Jones paying for Blacklidge’s services out of other-money, instead of out of the same money, a sum equal to twenty per cent, of the claim, that the contract, as thus construed, would be valid, simply because the services were to be paid for out of other money, instead of out of the same money. Such a distinction would be altogether too finely drawn, too attenuated, too ethereal, too unsubstantial, to be entertained by courts of justice, who “look through forms and phrases to the essence of things.” If the said act is to be construed as permitting such contracts, it would not tend very strongly “to prevent frauds upon the treasury of the United States.” Anybody would be wise enough to know how to evade the law. Anybody would know how to purchase a claim, or an interest therein, and then pretendedly and ostensibly collect it for the person from whom he purchased, but in fact and jn reality collect it (or his portion of the same,) for himself. Such a construction of said act would impeach the wisdom and foresight of congress. ' Such a construction would show an imbecility on the part of congress scarcely conceivable—an imbecility that a town council for a country village would be ashamed of. But such is not the right construction. It was undoubtedly the intention of congress to make void all contracts like this, and all other contracts of a like nature: Marshall v. B. & O. Rld. Co., 16 Howard, 324, 336. See also, Coquillard, Adm’r, v. Bearss, 21 Ind., 479; Harris v. Roof’s Ex’r, 10 Barb., 489, 493, 495; Bryan v. Reynolds, 5 Wis., 200, and Frost v. Inhabitants of Belmont, 6 Allen, 152. All contracts for the collection of claims, whether the claims are to be prosecuted before the courts, before congress, or the legislature, or before any of the executive departments, for a compensation contingent upon success, are certainly against public policy; for the compensation in such cases being contingent, and often very large in amount, holds out great inducements and temptation to the use of undue, and even corrupt, means, for the collection of such claims. Whether all contracts of such a nature are void at common law, has been questioned; and for this very reason, we suppose, said act of congress was passed. This act puts at rest all question with reference to the validity of such contracts. It renders them all void. The. judgment of the court belowis reversed, and cause remanded for a new trial.
All the Justices concurring. | [
-14,
109,
-16,
61,
40,
-32,
40,
-110,
-21,
-79,
55,
83,
-55,
74,
0,
61,
100,
45,
81,
123,
66,
-89,
31,
9,
-14,
-14,
-39,
-35,
49,
109,
-20,
86,
64,
32,
10,
-107,
102,
106,
-127,
-36,
-50,
36,
-88,
-19,
-47,
32,
56,
109,
26,
74,
113,
42,
-9,
42,
24,
81,
97,
44,
107,
-88,
-111,
-16,
-86,
69,
-35,
58,
17,
34,
-98,
15,
-54,
14,
-112,
53,
68,
-20,
123,
-74,
-126,
-12,
5,
-87,
-56,
-32,
102,
96,
84,
-17,
60,
-100,
62,
-2,
-115,
38,
-62,
88,
2,
109,
-76,
-107,
60,
-112,
39,
112,
-29,
29,
95,
40,
39,
-118,
-74,
-77,
-35,
62,
-98,
19,
-45,
-121,
-96,
97,
-51,
98,
93,
65,
58,
-109,
-97,
122
]
|
'The opinion of the court was delivered by
Brewer, J.:
On the 18th of July, 1862, Foreman brought .•suit in the district court of Atchison county to foreclose a mortgage given by Scott. He alleged that the other defend■ants claimed some interest, and asked that, their interest be foreclosed. An affidavit for publication was filed, publication had, a decree rendered, and sale made. Morgan Osborn became the purchaser at the sale. The decree was rendered •on the 27th of September 1862, and the sale made on the 6th of March 1863. On the 17th of February 1871 Joseph J. Carter, one of the defendants, filed his motion to set aside this decree, as void. The district court sustained the motion, and from that decision this proceeding in review is brought. Was this motion made in time? No matter what the merits of the motion, if the time within which it could be made was passed, he had no standing in court. By § 83 of the civil •code of 1862 (Coinp. Laws, p. 137,) a party against whom a judgment has been rendered after service by publication was allowed three years in which to have it opened; and by §§ 546r and 553 of the same code a party also had three years in which to vacate or modify a judgment on account of irregularities in obtaining it. Sec. 575 of the code of 1868 (the section corresponding to § 553 of the code of 1862,) amends it by adding this clause: “A void judgment may be vacated at anytime, on motion of a party, or any person affected thereby.”' It is claimed that the sole power the court had is derived from these statutory provisions; and as by the code of 1862 the-time within which the power of the court could be invoked was limited to three years, and that time had elapsed after the entry of this decree and before the adoption of the code-of 1868, that the decree had become a finality, beyond any power of interference. Conceding these provisions of the code to be in the nature of statutes of .limitation, and. the same rules apply. If a judgment is simply voidable, that is, may be avoided on account of certain irregularities in the manner of obtaining it, it starts the statute to running; and a party to avail himself of these irregularities must move within the time limited. But that which is absolutely void, never starts. a statute of limitations to running. A tax deed, void on its-face, is never saved by limitation laws. Shoat v. Walker, 6 Kas., 65. No more is a judgment absolutely void. If upon .the face of the record it appears that the court had no jurisdiction of the subject-matter, or of the person, length of years will not give the jurisdiction, or make that good which was void. The addition of the clause of 1868 to the section, gives no additional power to the court. It simply enunciates a power it always possessed. In Dederick’s Adm’r v. Richley, 19 Wend., 112, Bronson, J., says: “The judgment was signed on the 11th of November 1835; and no judgment in any court of record can be set aside for irregularity on motion unless the motion is made within one year after judgment; (2 N. Y. R. S., 359, § 2.) This provision relates to a mere technical irregularity, where the cause has been heard and decided on the merits. It cannot apply to a judgment en tered without authority against a party not before the court.” To the same effect are Smith v. Rollins, 25 Mo., 408; Harris v. Hardeman, 14 How., 334; Mills v. Dickson, 6 Rich., 487; Hallett v. Righters, 13 How. Pr. Rep., 43; Manuf. and Mech. Bank v. Boyd, 3 Denio, 257; and also the unreported case of Leas and Harsh v. Ortman, Adm’r, &c., in this court on. error from Leavenworth county. If therefore the judgment was void, Carter was in time with his motion, and the decision of the district court should be affirmed.
Was the judgment void so far as Carter is concerned? It is shown by the testimony offered on the motion that at the time of the rendition of the judgment Carter was a soldier in the confederate army, and within the confederate lines. It is claimed that as war subsisted between the two sections of our country, and as by the president’s proclamation of August 16th, 1861, based upon the act of congress of July 13th, 1861, all intercourse and communication between them was prohibited, no judicial proceedings could be had in the courts of the one against parties within the limits of the other. The notice of publication required the absent defendant to appear and defend. The supreme power of the nation prohibited him from appearing. Hence this prohibition suspended the power of the court to proceed, until the defendant was able to respond to the notice, and. appear. The same conditions also suspend the running of the statute of limitations. “Contra non valentem agere nulla eurrit prceseriptio.” There is some conflict of authority on these points. That the war suspended the running of the statute of limitations, is held in Brown ¶. Hiatt, 1 Dillon Ct. Ct., 372; Hanzer v. Abbott, 6 Wallace, 532. That it does not, is decided in Smith v. Stewart, 21 La. An., 67; Taylor v. Hill, 21 La. An., 626. That judicial proceedings are suspended, and an attempted foreclosure of an equity of redemption, or seizure and sale, under attachment, is void, is decided in Dean v. Nelson, 10 Wallace, 158. Contra, in Dorsey v. Dorsey, 30 Ind., 522; Mixer v. Sibley, 53 Ill., 61. It is unnecessary for us however to examine these conflicting authorities; for, conceding the doctrine laid down by the supreme court of the United States, as to the effect of the war, to be correct, we do not think the facts of this case will justify the conclusion sought. The war began in April 1861. At . that time Carter was a resident of Kansas, and so continued until some time in July 1861, when he left, for aught that appears, voluntarily. The next that we hear of him is in August 1862, when he joins a company of confederate soldiers in Tennessee. Where he was from July 1861, to August 1862, we are nowhere told, though Carter is himself the main • witness in his own behalf. We cannot assume in his favor that he was driven out of Kansas, or that he went directly to some state then in rebellion, or that he was driven out of the Union, and within the confederate, lines, or that he was ■ drafted into service. If any of these facts existed they should ■ have been shown, by one seeking to avoid a judgment against . him, and to disturb innocent parties in the possession of property they had paid for in good faith on the strength of such judgment. It was well said by Bradley, J., in delivering the opinion of the court in Ludlow v. Ramsey, 11 Wall., 581, that “if a party voluntarily leave his country or his residence for the purpose of engaging in hostilities against the former, he cannot be permitted to complain of legal proceedings ■ regularly prosecuted against him as an absentee on the ground of his inability to return or to hold communication with the place where, the proceedings are conducted. That would be carrying the privilege of contra non valentem to an unreasonable extent.” With that doctrine, thus announced by the .supreme court of the United States, we cordially concur. So . far as the record before us shows, Carter voluntarily left his ■ place of residence within the Union lines, after the war had commenced, voluntarily entered the confederate lines, and voluntarily joined their forces. If force was used to compel any of these steps it should have been disclosed. O’Neal v. Boone, 53 Ill., 35.
■ The other objections to this judgment are, that the affidavits .for publication, and of publication, are not properly aufchen- ' ticated. The first is authenticated by the signature of the clerk of the district court, but without his seal. The second is authenticated by the signature and seal of Alfred G. Otis, a notary public, but one of the attorneys of the plaintiff in this action. On the hearing of the motion to vacate and set .aside this judgment plaintiff produced Abram Weaver, the clerk of the district court both at the time the affidavit for publication was made, and ever since, and offered to prove by him that as such clerk he had had the custody of the papers and the seal of said court, and that it was the universal practice in said court not to attach the seal to affidavits to papers filed in that court, and asked that he have leave to amend his authentication by attaching the seal. He also produced A. P. Cochran, whose name is signed to the affidavit of publication, and offered and asked to have him resworn to that affidavit, and to prove by him that publication was made as stated in that affidavit. Both of these applications were refused, and exceptions taken. Had the district court the power to permit these amendments? and if it had, ought it to have done so? Sec. 139 of the civil code provides that “The court may, before or after judgment, in furtherance of justice, -and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment docs not change substantially the claim or defense; and when any proceeding fails to conform in any respect to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.” It has been said that this language literally construed gives unlimited power to the courts. While not obnoxious to this sweeping charge, it cannot be denied that it grants a large discretion. That its language covers a case like the present, is too plain for controversy. If the proceedings for publication fail to conform to the provisions of the code the court may permit them to be made conformable ■ thereto by amendment. One limitation on the exercise of this power is, that it be “in furtherance of justice.” Of this,, in reference to this case, more hereafter. It is enough to-state this here, as applicable generally: That if ever a party' has obtained through legal proceedings an unjust advantage,, and in those proceedings has made a mistake, be it ever so-trivial, the law will qot tolerate an amendment to secure him in his advantage. To such an one the law is a Procrustean bed, and to its exact requirements every proceeding must, at his peril, conform. But where only just claims are sought to be enforced, the law looks tolerantly on mistakes, and seeks-to uphold whatever is honestly attempted to be done. Again, it is objected that “The court could not permit amendments-to be made after judgment by default, so as to confer jurisdiction.” Doubtless this is trae. You cannot amend a party into court, after judgment by default, without summons, service or notice. You cannot amend by introducing summons and service. If in this case there had been no publication, there could be no amendment; for without publication an absent defendant cannot be brought into court. But here the-objection is, not that something was omitted to be done which, was necessary to be done to bring defendant into court, but that the “proof” of what was done is defective. The affidavit for publication was signed and sworn to before the proper officer, and now remains on the files of the court, attested by his signature. Publication was made, and a copy of the publication is on file. An affidavit and publication was signed and sworn to> before an officer authorized generally to administer oaths, attested by his signature and seal, and is now on file. Publication of notice is equivalent to service of summons. When a summons is served the defendant is in court. So, when, publication is completed. Mason v. Messenger, 17 Iowa, 261-The affidavit of publication is like the return on the summons, proof of what has in fact been done; and like such return, it does not of itself operate to bring the defendant into court—at least it did not, under the code of 1862, (though see code of 1868, p. 644, § 75, last clause.) In the-one case jurisdiction is obtained by the service; in the other, by tbe publication. So that the amendments sought are not to confer jurisdiction, but to perfect the proof of a jurisdiction which had been really acquired.' We think therefore the court had power to order these amendments made. Ought-they to have been made? Would it have been in furtherance of justice? That the debt was a just one, that it was secured by a mortgage on the property sold, that the judgment is for' no more than it ought to have been, that defendant Carter left the state without making any provision for the payment-of this debt, that he during the ten years of his absence made-no attempt to pay off the indebtedness, that the property was-fairly sold at a then reasonable price, that due notice of the-time and place of sale was given, are matters against which, the record makes no imputation. In short, there is nothing to qualify the assertion that the owner of the note and mortgage sought at a reasonable time, and in a reasonable way, to secure satisfaction of his indebtedness out of the property charged as security. On the other hand, more than ten years ago the defendant left the state without paying his-debts, and for as many years neglected the property, and nowr when values may have largely changed through the activity and intelligence of the people of Atchison, returns and asks to recover the land, dispossess the purchaser, and avoid the-proceedings, on account of some technical defect. In such a-case we think simple justice requires that these amendments-be made. It is further objected that the question of amendments is one of discretion, and will not therefore be reviewed, in this court unless it appear that that discretion has been, abused. This is unquestionably so. Yet when the question arises on a record we are generally placed in a better position to weigh that discretion than when it is exercised during the-trial of ,a cause. It seems to us, with the record all before-us, that these amendments should have been made. See, as-to the power to amend, and the circumstances under which, amendments should be made, the following among many cases: Bilansky v. The State, 3 Minn., 427; Wiggin v. Veasey, 43 N. H., 313; State v. Dowd, 43 N. H., 454; Frink v. Frink, 43 N. H., 508; Avery v. Bowman, 39 N. H., 393; May v. Ferill, 22 Texas, 340; Keen v. Briggs, 46 Maine, 467; Palmer v. Thayer, 28 Conn., 237; Jackson v. Ohio & M. Rld., 15 Ind., 192; Kitchen v. Reinskey, 42 Mo., 427; Dunn v. Rodgers, 43 Ill., 260; Clayton v. The State, 24 Ark., 16; Talcott v. Rosenburg, 8 Abbott, N. S., 287.
The order of the district court will therefore be reversed .■and the case remanded with instructions to permit these .amendments to be made, and when made to overrule the .motion to set aside the judgment.
All the Justices concurring. | [
-12,
-30,
-36,
12,
-86,
96,
-128,
-104,
74,
-72,
-93,
83,
105,
-126,
4,
109,
115,
9,
117,
105,
68,
-122,
23,
91,
-46,
-77,
-47,
-35,
55,
79,
-12,
87,
76,
32,
66,
-43,
70,
-54,
-119,
92,
-114,
-91,
-87,
68,
-47,
8,
52,
123,
64,
79,
-107,
46,
-13,
46,
29,
-26,
72,
44,
-55,
61,
-48,
120,
-97,
13,
127,
0,
-79,
103,
-104,
67,
104,
-18,
-104,
17,
17,
-24,
114,
-74,
6,
84,
71,
11,
40,
102,
99,
3,
61,
-17,
-72,
-72,
15,
23,
-97,
-122,
-108,
89,
34,
43,
-74,
-103,
124,
16,
70,
-2,
-26,
-123,
93,
108,
31,
-118,
-106,
-105,
15,
122,
-102,
11,
-29,
-77,
32,
49,
-49,
-80,
92,
99,
59,
-101,
-114,
-3
]
|
The opinion of the court was delivered by
Valentine, J.:
The main question in this case is, whether a certain tax deed is valid or not. One of the principal objections urged-against the tax deed is, that it shows upon its face that the land for which the tax deed was executed was not sold for delinquent taxes. A portion of the deed reads as follows:
“Whereas, at the time and place aforesaid the said real property above described could not be sold for the amount -of said taxes, penalty and charges thereon, to any person or persons, in any parcel or parcels, at said public sale, or any adjourned sale thereof, the said lands above described were bid off by H. P. Stebbins, of Brown county, state of Kansas, for the sum of twelve dollars and ninety-six cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said real property.”
The deed does not anywhere show that said Stebbins, or' any person for him, paid the said sum for which said land was bid off. This is required to be shown in the tax deed.. (Comp. Laws, 878.) The date of this supposed sale is May 2, 18,65. This land may have been sold for said taxes, but the deed docs not show it. The deed is therefore not in substantial conformity with the form of the tax deed given in. the statutes. The statute requires that the deed shall show that there was a sale, and that the purchase-money was paid; hence if the deed does not show the same it must be presumed that there was no sale, and that the purchase-money was not paid. And if there was no sale, the deed would of course-be void. From the language of the deed the-inference might-be drawn that Stebbins bid off the land for the said taxes,, etc., but that he did not pay the .purchase-money, and therefore that the treasurer chose to treat the bid as canceled, and the supposed sale as no sale at all. (Comp. Laws, 867,■§ 41.) But if this inference cannot, be drawn from the language of thé deed, then the deed is contradictory in its statements, and we do not know which statement to believe. We cannot, say from such contradictory statements whether there was a sale or not. It is true, that a tax deed need not follow the exact form prescribed by the statute. It is true, that it need not use the exact language of the statute. It is true, that there may be immaterial matters prescribed by the statute which, may be omitted in the tax deed without invalidating the same. But whether there was a sale or not is a matter of vital importance which cannot be dispensed with, and the tax deed must affirmatively show that there was a sale. This deed does not show affirmatively that there was a sal,er and therefore the deed is void upon its face.
This property seems to have been vacant and unoccupied - from the time of the recording of the tax deed, which was-July 19th, 1867, up to June 1870, when the plaintiff below. Johnson, took possession of the same. It is certainly true that the holder of the tax deed never had actual possession of the property. Therefore, according to the decisions heretofore-rendered by this court, the two-years statute of limitations-has not run in favor of said tax deed. Shoat v. Walker, 6 Kas., 65; Sapp v. Morrill, 8 Kas., 677.
We have now decided all there is of substance in this case,. Therefore the question whether' the demurrer to the second and fourth defenses set up in the defendant’s answer was-rightfully or wrongfully sustained, does not necessarily require-any examination by this court. We would say, however, that the answer of the defendant is defective in the same manner' that the said tax deed is defective. It does not anywhere’ allege that the property ivas sold for delinquent taxes. The; judgment of the court below is affirmed.
All tli'e Justices concurring. | [
-13,
124,
-47,
61,
58,
-64,
34,
-119,
9,
-75,
39,
123,
-17,
2,
0,
125,
-78,
61,
117,
90,
-58,
-73,
39,
41,
-10,
-77,
-39,
-36,
-75,
77,
-26,
-58,
12,
33,
-54,
-43,
102,
99,
-51,
84,
-50,
-122,
-120,
92,
-39,
64,
52,
107,
98,
73,
113,
-118,
-13,
42,
28,
67,
73,
44,
75,
59,
-39,
-72,
-66,
-105,
127,
7,
-109,
37,
-36,
67,
-24,
-82,
-110,
57,
-64,
-24,
95,
-74,
6,
-12,
13,
-87,
41,
102,
103,
1,
84,
-1,
-76,
-104,
46,
-9,
-115,
-26,
-44,
88,
67,
-84,
-105,
-99,
125,
16,
78,
126,
-26,
13,
29,
108,
15,
-113,
-46,
-109,
-113,
62,
-118,
2,
-9,
3,
-78,
97,
-49,
-10,
92,
103,
48,
27,
-113,
-4
]
|
The opinion of the court was delivered by
Kingman, C. J.:
In the month of February 1869,- the defendant in error, while walking on the sidewalk on the west-side of Fourth street, in the city of Atchison, stepped through a hole in the sidewalk, and injured her leg thereby. To recover damages therefor she brought an action against the city, which was tried and resulted in a verdict for her, of f1,300. To reverse the judgment rendered upon that verdict the cause is brought to this court, and various .errors are alleged as occurring on the trial. The record does not contain the evidence in the cause, only so much being stated as raises the questions as to its admissibility; nor does it contain all the instructions of the court. We will examine the errors alleged, briefly, and announce our decisions thereon in their proper order.
I. The plaintiff asked one' of her witnesses “ to state who was the owner of the north part of the lot on which McCubbin’s store stands, being a lot adjoining the sidewalk on the east side of Fourth street, between Commercial street and Kansas avenue?” To this question defendant objected, and the objection was overruled. It does not appear' whether the question was answered or not. It is not possible to see the object of the question, or its materiality, from the record. It is objected that title to real estate pannot be proven by such testimony. This is sometimes correct, not always; but conceding its accuracy, it does-not appear that the title was so proved, for so far as we kn'owr the question -was not answered. Or, it may have been that the answer was, that the witness did not know who owned the lot. In such case the defendant would not have been injured by the question, no matter how ■ erroneous it was.We cannot infer error from such facts. This has been frequently decided in this court.
Another error alleged is, that Miss Dickinson “ was called “in rebuttal by plaintiff, and having testified concerning the-“health of plaintiff in the years 1867, and 1868, and that “sometime in the fall or winter of 1867 plaintiff called to see “Dr. Linley concerning her health, plaintiff then asked the-“witness the following question: What did she complain of?”' We are left entirely to conjecture, as to the object of the question, as we do not know what was the tendency of the-previous testimony. The injury took place in 1869. How there came to be an inquiry into the health of plaintiff' in* 1867, we cannot tell. Again, it is uncertain from the record whether the question refers to what the plaintiff complained, of to Dr. Linley, or to witness. If it was what she said to* Dr. Linley when consulting him, then it was probably a-proper question. If it was what was said to witness, then it was probably improper. But it does not appear to have-been answered at all, and therefore this court cannot say there-was error in any construction that may be given to the record.
II. The plaintiff offered in evidence an ordinance of the-city of Atchison, No. 252, providing for the construction of a sidewalk on Fourth street, from Commercial street to Kan ,sas avenue, passed May 7, 1867. It was objected that it could not be read in evidence without the preliminai’y proof of publication, as directed by law. The law at the time of its passage required all ordinances of a general nature to be published in some newspaper, •or by, posting written or printed copies of the same in public places, in the city: Laws 1867, p. 108, §7. 'Whether the .non-publication of such an ordinance as this would render it •invalid, or not, need not be determined. The city having passed the ordinance four or five years before it was offered •in evidence, and having acted upon it as valid, will not now be allowed in such an action to deny its publication. Such a •rule would be a great inducement to cities to disobey the law. 'They get the benefits and escape the inconveniences of the law by such a course, as it would in most cases be impossible .•for a stranger to prove a publication four or five years after the, passage of the ordinance, where the publication is by posted notices. Nor would the difficulty be much less where it was published in a newspaper, in a country where newspaper changes arc as frequent as they are in this state. It •was the duty of the city authorities to publish the ordinance. .As they acted on it, the presumption is that it was duly published ; and at least this presumption is sufficient till the •contrary appears.
III. The claim of plaintiff was submitted'to the city coun•cil, and was referred to Mr. Buck, who conferred with the plaintiff and received certain statements from her, and reported verbally to the council. The defendant z i t-» i 0n this state oí facts asked Mr. Buck what report and recommendation he made to the mayor and council as to the payment of said claim? The court refused to permit the witness to answer, and very correctly so ruled. .There is no rule of evidence- that -will permit such testimony. If the defendant desired to show what took place between the witness acting on the part of the city and the plaintiff, such evidence was proper; but the inference and conclusions which the witness drew from such an interview are not evidence, much less what he reported as his inferences and conclusions.
IV. The court refused to permit secondary evidence of the contents of a paper to be given in evidence, but afterward,, upon further proof of the loss of the original paper, the secondary evidence was admitted. The learned-counsel fail to show us how they were injured' by the ruling of the court; nor are Ave willing to say that -the ruling Avas not correct in the first instance. All the evidence ruled out as mentioned in the bill of exceptions was subsequently admitted, being in the same condition as that just mentioned.
V. The defendant asked several instructions, of which the first, fifth and ninth were refused, and these only appear in the record. The first of these instructions is clearly faulty in this, that it requires a verdict for the defendant unless the city, through its officers or agents,consft.ucj;e(j' the sideAvalk with the defect therein that was the cause of the accident, or caused such opening or defective place to be afterwards made or - placed there. The instruction omits at least one essential element as to liability, and the very one, so far as Ave can glean from the meagre sketch of the evidence preserved in the record, that Avas the-cause of the injury. That element is, if the city carelessly and negligently permitted the defect to exist, no matter how caused, after notice thereof to the city, or for so long a time-that notice was presumable, then it became liable.
The second instruction (marked 5th) is to the effect that if the accident Aras partly caused by the Avet and slippery condition of the sidewalk from the fall of rain, snoAV, or sleet. without the fault or negligence of the defendant, and partly from the defective sidewalk, then the plaintiff cannot recover. 'The first impression on reading the instruction is that it is •erroneous. For it lays down a principle that at a time when from the condition of the sidewalks in a city, by reason of a recent fall of rain, show, or sleet, one most requires a good .and safe walk, then is when the liability of a city for a defect in the sidewalk substantially ceases. For it is on such occa.'Sions that most accidents happen. The doctrine of the instruction seems to have, been fully recognized in Maine; Morse v. Abbott, 32 Maine, 46; Moulton v. Inhabitants of Sanford, 51 Maine, 127; and there are remarks in the case of Marble v. City of Worcester, 4 Gray, 395, of the same tenor; but they must be' read in reference to the facts of the case, and the course of the argument of the learned judge delivering the opinion of the court. A contrary opinion is held •in Palmer v. Andover, 2 Cush., 600, and in Hunt v. Pownall, 9 Vt., 411; Allen v. Hancock, 16 Vermont, 230; Winship v. Enfield, 42 New Hamp., 197. In Moulton v. Inhabitants of Sanford, the judge who delivered the opinion of the court did not question that the weight of authority was adverse to the decision in Maine, but insisted that it was sustained by reason. But one can hardly read the able dissenting opinion, in which three judges concurred, without a conviction that the reason is not altogether with the majority of the court. In such an injury as the one in this case there must always be two or more causes contributing to the injury, without any carelessness on the part of the sufferer. There is in this case the .defective sidewalk, for which the city is responsible; there is, perhaps, (at least that possibility is involved in the insfcruc-' tion,)the slippery condition of the sidewalk, for which no one is -responsible; and there is the passing-over-it-of-the-plaintiff, for which she alone is responsible—unless indeed she was -compelled by causes unknown, operating in endless succession upon each other, to walk over it. Indeed, she might have reached her destination by walking on another street. But in •all these causes, proximate or remote, real or fancied, there was negligence in but one party, the plaintiff in error. Where the sufferer is in no fault, using ordinary care and •diligence, and is injured by a defect in a public sidewalk, although the slippery state thereof may have combined with the defect to produce the accident, we cannot but hold that the ■city that constructs the walk, and invites people to walk upon it, and then permits it to remain in an unsafe and dangerous condition, is liable. So holding, the instruction was properly refused.
The ninth instruction was properly refused,-as it is predicated upon the statement .that a plank in the sidewalk was removed on the same day of the accident, without the knowledge or consent of the city authorities, and without notice to them, Avhile the bill of exceptions shows that the defect had existed in as bad a condition for some days before as it Avas on the day the plank Avas removed. This omitted fact Avas an essential one to incorporate before the city could ask the court to say that no negligence Avas imputable on the part of the city for Avant of notice, even if notice Avere required.
"VT. At the request of the plaintiff the court gaAm seven instructions, to all of which the defendant excepted, but only tAvo are complained of in the brief. It is claimed that the' third instruction is erroneous as to the' measure (jamages layS cIoaaui as a guide for the jury. In what respect is it erroneous is not pointed out. We shall content ourselves Avith saying it is in conformity with the rules usually laid doAvn in the decided cases.
The seventh instruction given at the request of .plaintiff is to the effect, that any payment made to plaintiff is not a bar to the action, unless it was made in full satisfaction for the injuries, and was by plaintiff accepted as such. The accuracy of these propositions of laAAr, as a general principle, is not denied; but it is insisted that it should haAre been so modified in this case as to direct the jury that if the plaintiff beloAv, in presenting her claim for damages to the city council, induced. the council, either by representations, acts, or conduct, to believe that it was to be in full satisfaction of the claim, and the city, "acting on such belief. made such payment, then the plaintiff was estopped from denying that such payment was a full settlement. It may be that the case presented facts that required some modification of the instruction as given; but in the absence of the evidence we cannot say that such was the case. There is no evidence of any payment in the case, though the answer avers a payment of $46, and the charge of the court speaks of the elaim that the city made that the payment of $46 was in settlement of the claim. The court further says-that if the jury find the fact so to be, they will return a verdict for the defendant; but if the jury find the $46 was paid only to aid the plaintiff in paying the actual expenses she had been at, in consequence of the injury, and not as a final settlement, then the plaintiff is entitled to recover, provided her whole, damage exceeds the $46. We cannot say there was any error in' the instruction of the court. The charge of the court is full, and quite long, besides the charges-given at the instance of the parties, and concludes with the words, “defendant excepting.” To what part exception was taken, we cannot tell. So broad an exception did not( call the attention of the court to any particular paragraph, and is not such an exception as demands the attention of this court.. And this ruling is more readily made in this case, as a careful reading of the charge does not convince us that it contained any error.
VII. The remaining error is as to the judgment for costs. Sec. 33, ch. 19, Gen. Stat., 169, requires all claims against a city to be presented for allowance, and that no costs shall be recovered against the .city in an action brought against it for any unliquidated claim which has not been presented to the city council to be audited. This section must be held as covering a case like the one under consideration; and without a previous presentation, while a recovery may be- had, there can be no recovery of costs. The reason of the law is obvious, and the requirement seems a very proper one. The question as to, costs in this case is raised on this state of facts: There is no averment in the petition of the presentation of the claim to the city. When the plaintiff offered evidence to the court of the presentation of the claim, the defendants objected on the ground that there was no allegation to support it. The court overruled the objection, and admitted the evidence; and of course, if the evidence was admissible under the pleadings the plaintiff was entitled to the judgment for costs. But our impression is, that there was error in the admission of the evidence. It is a general rule that the proof must be justified by the allegations of the pleadings. We do not see any reason why this is an exceptional case; nor are we referred to any authorities. The plaintiff sought damages and costs. To recover for the former she must allege such facts as entitle her to them, and support the averments with corresponding proof, and in offering testimony must be held to the averments of the petition. So as to costs. Generally, averments and testimony that will authorize a recovery of damages, will authorize a recovery of costs; but where other facts are necessary to carry costs, such facts must be alleged as well as proven. Whether defendant was liable for costs, was an issuable fact, which the city had a right to contest, and was entitled to notice that such fact would be relied on; and the only appropriate place for such a notice was in the petition. Without such an averment the evidence was improperly admitted. The language of the section referred to is, that no costs shall be recovered against such city, etc., unless the claim has been presented to the city council; under this law, and under the facts as presented, there can be no costs recovered by the plaintiff against the city; and as there is no provision that the city shall recover costs in such cases, the judgment should be for the amount of the verdict for the plaintiff, and no judgment for costs in favor of either party; and the case is remanded with directions to modify the judgment in accordance with this opinion.
All the Justices concurring. | [
-80,
106,
-16,
-81,
26,
96,
32,
-102,
105,
-111,
-76,
127,
-83,
-53,
28,
105,
-14,
61,
-48,
107,
-59,
-77,
7,
-125,
-46,
-13,
-13,
-43,
-79,
92,
-12,
-11,
76,
48,
-54,
-99,
102,
74,
-57,
94,
-114,
-124,
-87,
-60,
-53,
96,
36,
123,
2,
79,
113,
30,
-13,
46,
24,
-61,
104,
44,
-53,
61,
-15,
-16,
-118,
-115,
125,
2,
49,
54,
-2,
-125,
72,
56,
-48,
53,
1,
-72,
51,
-74,
-122,
116,
45,
-69,
76,
100,
98,
33,
77,
-17,
-8,
-68,
47,
127,
-123,
-90,
54,
8,
-23,
33,
-74,
-103,
125,
80,
3,
-2,
-26,
4,
24,
108,
3,
-101,
-112,
-71,
15,
58,
-112,
27,
-5,
-121,
-80,
113,
-51,
40,
93,
66,
18,
-109,
-113,
-12
]
|
The opinion of the court was delivered by
Valentine, J.:
In 1867 there was a criminal action for murder in the first degree pending in Riley county. The action was commenced in that county, and the offense was-charged to have been committed there. The action was taken on change of venue from Riley county to Davis county. At the March Term 1867 of the district court of Davis county-said action was tried before a jury composed of residents of Davis county. On the 6th of April 1870 the board of county commissioners of Davis county allowed and paid the bill for the services of said jurors. On the 10th of July, 1871, said. 'board presented the bill for said jurors’ fees to the board of .county commissioners of Riley county, and claimed payment •thereof. The board of county Commissioners of Riley county however refused to pay said bill, or to act upon it, or even to take any official notice of it. This action (which is a proceeding in mandamus,) was brought in the district court in September, 1871, for the purpose of compelling the county commissioners of Riley county to act upon said claim. The judgment of the court below was against Davis county and in -favor of Riley county. Davis county now seeks a reversal . of that judgment by petition in error in this court.
Conceding, for the purposes of the case, that every question except the one hereinafter mentioned must be decided in favor ■of Davis county, and still we think that the decision of that ..one question will require a decision of this case against Davis • county. That question is, whether this action is barred by a .certain statute of limitations. Or perhaps more properly . speaking the question is, whether the claim itself upon which this action is founded was not barred before any cause of .action ever accrued thereon against Riley county, and in . favor of Davis county. The said statute reads as follows:
“Sec. 47. No account against the county shall be allowed unless presented within two yeafe after the same accrued; Provided, That if any person having a claim against a county be, at the time the same accrues, under any legal disability, .every such person shall be entitled to present the same within •one year after such disability shall be removed.” (Gen. Stat., . 264.)
This statute goes back to the very foundation upon which this action is founded. It does not merely stop with limiting . an action on the claim, but it goes further back and limits the claim itself; or rather, it limits the time within which - the claim must be presented for allowance. It not only bars : an action on the claim after two years have elapsed from the time it accrued, but it bars the claim itself. We suppose it • will be conceded that if Riley county was primarily and originally bound to pay said jurors, that the claim was barred long before it was presented to the commissioners of Riley county for allowance and payment. But it is claimed by Davis •county that Riley county was not primarily and originally bound to pay said claim. It is contended that Davis county was primarily and originally liable to the. jurors, and that Riley county was liable over to Davis county. It is contended that the liability of Riley was at most only contingent, ¡until after Davis county paid said jurors’ fees, and that then for the first time the liability of Riley county became complete. And therefore it is claimed that no claim accrued, and no statute of limitations commenced to run until Davis county paid said jurors’ fees. Now, conceding all the foregoing as correct, except the running of the statute, and is said claim barred? We think it is. When Davis county paid this claim it was barred by this statute. At that time Davis county was not bound to pay it. At that time it was not a valid or existing claim against any county in the .state, and the holders thereof had no cause of action against .any county. In fact, no county in the state could pay it at that time without violating the express provisions of said ^statute. It would therefore hardly seem possible that Davis-county, not being liable herself, could, in direct violation of this statute, by paying said claim at the time she paid it, create a valid claim, a valid cause of action, in favor of her,self and against Riley county, without the consent and against the will of Riley county. To state that Davis count)’' •could do such a thing, to state that she could, by violating the law herself, create a valid claim, or valid cause of action, in her own favor, would be enunciating a proposition at variance with all the best-settled rules of law upon the subject. Parties who violate the laAv are not favored by the courts in that manner. And further, statutes of limitation -are not ■iIoav regarded with disfavor. On the contrary, they are now •everywhere considered favorably as statutes of repose. Bowman v. Cockrill, 6 Kas., 342, and cases there cited. The judgment of the court beloAV is affirmed.
All the Justices concurring. | [
-10,
-24,
-11,
30,
10,
-32,
0,
16,
74,
-93,
-29,
83,
-23,
-54,
1,
103,
-24,
45,
85,
121,
100,
-73,
19,
97,
114,
-69,
-39,
-41,
-77,
-51,
-26,
85,
12,
48,
-54,
-43,
70,
64,
-123,
86,
-114,
-122,
-101,
77,
-47,
8,
48,
107,
118,
3,
-11,
47,
-5,
40,
28,
67,
73,
45,
-37,
43,
82,
-15,
-114,
-123,
126,
1,
-79,
-89,
-100,
3,
-24,
58,
-112,
53,
0,
-24,
114,
-90,
-122,
-44,
75,
-119,
-84,
98,
102,
32,
-67,
-51,
-80,
-103,
15,
-42,
-97,
-122,
-108,
120,
43,
13,
-74,
-99,
118,
52,
-89,
116,
-25,
84,
93,
108,
23,
-34,
-110,
-77,
-49,
50,
-118,
35,
-45,
19,
-78,
97,
-51,
-94,
94,
-17,
50,
91,
14,
-40
]
|
The opinion of the court was delivered by
Kingman, .C.J:
The appellant was convicted of murder .in the second degree in the district court of Neosho county, and brings the case to this court by appeal. Various errors are' alleged which will be considered in their order.
I. The court refused to grant a change of venue asked by the appellant. The accused supported his petition by the affidavit of himself and nine others. The facts stated in the petition, which was also the affidavit sworn to by all the affiants, are briefly these: That the homicide had been 3 J the subject of violent and inflamatory remarks and discussions throughout the county; that unfair and unjust accounts of the homicide had been published in two of the newspapers of the county, of general circulation therein; that divers and sundry persons, actuated by malicious motives, had been busy, circulating reports of the homicide for the purpose of prejudicing the people against the accused; and that, incited by these causes, a mob of five hundred persons, armed with fire-arms, had seized the accused, took him from the custody of the officers of the law, at the 'town of Osage Mission, and carried him some distance from the town, with the avowed object of putting him to death, and had assaulted and maltreated him. The counsel for the state filed a number •of affidavits controverting the statements of the petition.
The statements in the petition are mostly made up of conclusions, and are not the definite statement of facts that the law requires. Neither the names of the persons who maliciously circulated the reports, nor the reports they circulated, .are stated; the accounts published in the newspapers are not produced, nor is it stated in what papers they were published. The same observations may be made as to most of the .-affidavits presented by the state, and this was a necessary consequence of the general statements of the petition. The .affidavits for the state show that the affiants live in different parts of the county, with a general acquaintance in their respective townships, and that whatever might be the feeling in Osage Mission, there was no prejudice against the prisoner in those parts of the county where they lived. The man who was killed was a workman on the railroad, and the mob was wholly composed of hands engaged in building the road, and not of citizens of the comity; that the citizens condemned the action of the mob, and that the persons composing it had left the county. The mob were prevented from accomplishing their purpose by the citizens. These affidavits satisfactorily and effectually dispose of any inference of prejudice indicated by the action of the mob. Taking the affidavits on both sides, and we think the court correctly refused the change of venue. Before we could reverse a case for a refusal of such a motion, we must be able to see that the decision was wrong. In this case we are strongly persuaded that it was right.
II. A witness was allowed to testify that the deceased was intoxicated at the time of the homicide. This was proper, as tending to show that he was incapable of attack or defense.
III. Horne was a witness on his own behalf, and after he had testified and left the stand, the court permitted the state to recall him and re-cross-examine him. The , object of the re-cross-examination was to lay the foundation for impeaching his testimony by contradicting it. The proceeding seems to be unobjectionable; 1 Greenl. Ev.,. §447; but if not, the error was harmless, as the witness’ answers were such that no advantage could be made of them. He did not recollect having had a certain meeting with James Barnes. Now if it was proven that he did have such a meeting, if such proof, from any cause should be legitimate, then the want of recollection of Horne did not show any want of veracity.
IV. The following testimony of James Barnes was objected to, and its admission alleged as error. Barnes testified that defendant asked him if he had seen Curran down at Kelley’s saloon. Witness told him he had. Witness then remarked, “By God, we want to see him.” / \ ' McGill was with defendant at the time. This conversation took place fifteen or twenty minutes before Cur-ran was killed. This was legitimate testimony, not, as counsel for appellant imagines, as impeaching testimony. It might-have been so used if any foundation had been laid, but none had been. Horne had never been asked as to a conversation between himself and witness Barnes. It seems that an effort was made to prepare the way for using the testimony as impeaching testimony also, but when Horne stated that he did not recollect meeting the witness the attempt was abandoned. _ But the testimony was perfectly competent to show that the accused was looking for the deceased a short time before he was killed, and as tending to show his state of mind. Being legitimate for this purpose it was properly admitted.
V. The next error alleged is in the refusal of the court to give certain instructions. The first one asked by appellant was n0* g00cl Iw and was properly refused. The instruction is defective in not stating that the apprehended danger was menacing the accused at the time. As it stands it simply states that if one person has reasonable ground to believe that another has a design to take his life, and under that belief he kills that other, the killing would be justifiable. This is not law. There must not only be reasonable ground to believe such a design exists, but the person to execute the design must be accompanied by some attempt to execute it, or the person must at least be in an apparent situation to do so, and so induces a reasonable belief that he intends to do it immediately. The instruction is open to criticism on another point. It states that where recent threats and other circumstances which would tend to lead the defendant to believe that his life was in imminent danger, etc. Now the threats and circumstances must not only tend to lead to the belief, but they must force the belief upon the mind, and then the belief must be reasonable, and such as reasonable men act on. The instruction as asked was not only objectionable for three reasons as a proposition of law, but because these modifications were especially necessary in this case, if any instructions at all of this character were necessary, which may well be doubted.
The third instruction contains this proposition in words: “ That the officers of the law when engaged in the performance of their official duties, are invested with a peculiar prerogative of resisting, when so employed, and if the party resisted be killed in the struggle; the homicide is justifiable.” If this be law then any resistance of an officer however slight justifies the officer in taking the life of any prisoner. The proposition so quoted is not in any manner modified by the remainder of the instruction; and this was a sufficient cause for rejecting the Avhole instruction. But the residue of the instruction is essentially vicious, as it has too close a resemblance to the part quoted.
The foui’th instruction Avas refused. It is so obscure, uncertain and involved, that it ought not to have been given. The proper instructions to the jury on the points attempted to be made in this instruction are given in the one numbered fifteen. For the reasons already given there xvas no error in refusing to give instructions numbered 6, 7, 8 and 9. The instruction numbered 14 Avas properly refused. The rule Aras as, favorably given in the next instruction as the appellant had a right to ask it. The appellant excepted to all the charge of the court, but specifies but three as grounds of error in this court. One is in paragraph 13. Taken by itself this paragraph Avould not be a fair guide to the jury, but taken in connection with other parts of the charge, it Avould not mislead the jury. The court in its charge used this expression: “ You are to decide Avhether the killing of James Curran by this defendant Avas, according to the laAV as stated, either justifiable or excusable,” etc. It is claimed that this expression that Curran Avas killed by defendant AX'as prejudicial to him as assuming a fact upon which the jury Avcre alone competent to pass, and the case of Carl Horne v. The State, 1 Kas., 73, 74, is cited in support of the claim. There are cases in which such an expression would be error; but this is not one. There Avas no dispute as to Avho killed Curran. Tne testimony on this point xvas abundant and harmonious. The defendant had just stated in his testimony that he had done the act, therefore it Avas no error in the court to speak of it as a fact. Some other errors in the instructions are suggested, but are not of a character to have Avrought any prejudice to the accused, and therefore will not be further noticed, except as to one paragraph of the charge of the court, which is as follows: “If the jury believe from the evidence that'any witness has testified corruptly and falsely to any particular matter, then it is your duty to disregard the whole of the testimony of such witness.” This does not correctly state the rule as laid down in Campbell v. The State, 3 Kas., 488. There may be a difference between material testimony, and testimony on a particular matter. The record in the case discloses the fact that the only attempt made during the trial to impeach the testimony of any witness was that made by the state upon the testimony of the defendant Horne; therefore the instruction of the court must have applied to his testimony only. A careful examination of his testimony shows that all of it was material, so that it made no difference in the case that the court erred in the use of the word “ particular” instead of using the proper word, “material.” It was an error not prejudicial to the appellant, and does not authorize a reversal.
"VI. On the motion for a new trial the appellant offered to read the affidavits of Robert Miller and John Young, two of the jurors who tried the case. These affidavits stated that the affiants had observed during the trial- that yYas a strong prejudice in the minds of the people of the community against said defendant; that this prejudice was discussed among the jurors in the jury-room; that affiants did not believe defendant guilty, but that if he was acquitted great bodily harm would bo inflicted on him by a mob, and that it would be better for him to be found guilty than to run the risk of mob violence, and for this reason affiants agreed to the verdict. The court refused to permit these affidavits to be read, and we think correctly. Whether the affidavits of jurors may be received in any case to impeach their verdict is a question upon Avhich there is much conflict in the decisions. The authorities on this point are collected and reviewed in the case of Wright v. Illinois & Mississippi Telegraph Co., 20 Iowa, 195; and the court in that case lay down a certain principle which should govern in deciding where and under what circumstances the affidavits of jurors may be used to impeach their verdict. It is not claimed that the principles laid down are supported by all the decisions, for it is asserted that no principle can be laid down that is not in conflict with some of the authorities. In this ease we are not under the necessity of determining any very difficult question. It is only to be said that no juror should be heard to contradict or impeach that which in the solemn discharge of a sworn duty he has asserted. Apply that to this case, and the affidavits were properly rejected. Affidavits of jurors showing misconduct of the jury in their retirement, stand on an entirely different footing, and their competency will be determined when the case arises. In the record we find no error that authorizes us to disturb the judgment rendered. Judgment affirmed.
All the Justices concurring. | [
112,
105,
-80,
-113,
42,
-32,
42,
-104,
-45,
-77,
-28,
115,
109,
-117,
4,
121,
122,
61,
85,
121,
68,
-73,
23,
73,
-78,
-13,
113,
-43,
51,
88,
-12,
-12,
75,
112,
10,
29,
70,
-24,
-57,
-40,
-114,
0,
-87,
-30,
90,
72,
48,
110,
66,
10,
53,
-66,
-29,
42,
28,
-61,
-119,
44,
91,
-83,
32,
-79,
-82,
-97,
-51,
2,
-111,
34,
-100,
-125,
80,
58,
-104,
53,
1,
-4,
115,
-106,
-124,
116,
109,
-55,
12,
110,
67,
33,
60,
-17,
-88,
-119,
47,
126,
-103,
-89,
-104,
25,
107,
5,
-106,
-39,
125,
116,
15,
124,
-27,
7,
24,
108,
0,
-114,
-78,
-79,
77,
60,
-112,
43,
-53,
1,
0,
113,
-51,
114,
93,
71,
56,
25,
-113,
-80
]
|
The opinion of the court Avas delivered by
Brewer, J.:
Plaintiff brought an action of replevin against John Sehott, claiming to be the owner and entitled to the possession of certain personal property. Under § 182 of the civil code Schott gave an undertaking and obtained the property. Such undertaking was as follows:
[Title.] “We, Charles Eranlce and Henry Franke, bind ourselves to the plaintiff, Martin M. Marix, in the sum of six hundred and twenty-three dollars, that the defendant, John Schott, will deliver the said property in controversy in this suit to the plaintiff, if such delivery be adjudged, and will pay all costs and 'damages which may be awarded against him. H. Franice.
C. Franke.”
A trial of said action was had before a jury, a verdict returned for the plaintiff therein, and the following judgment was entered:
[Title.] “ It is therefore now by the court here considered, ordered and adjudged, that the said plaintiff Martin M. Marix have and recover of and from the said defendant John Schott the personal property in said plaintiff’s petition described, and the sum of one cent damages, as found by the verdict of the jury heretofore rendered herein, for the detention of said property, as well as his costs in and about this suit expended, and that execution issue therefor.”
Schott paid the costs and damages but failed to return the property. This action is now brought upon the undertaking to recover the value of the property Can it be maintained? The defendants undertook that Schott should deliver the property, if delivery was adjudged. Delivery was adjudged. Schott has not delivered. By the plain language of the undertaking a liability thereon has arisen. But the statute provides that the value shall be. determined in the original action. Judgment “may be for the possession, or for the recovery of possession, or the value thereof in case a delivery cannot be had.” It is no doubt true that the judgment should be entered in the alternative, and that a failure to so enter it is error, which may be corrected by proceedings in in error. Hall v. Jenness, 6 Kas., 356. But a judgment simply for the return, though irregular, is valid. It cannot be questioned collaterally. It is conclusive so far as it goes. It can be enforced by execution. Mason v. Richards, 12 Iowa, 72; Whitney v. Lehmer, 26 Ind., 503. If the judgment is valid, how are the sureties released from their promise to see that it is performed, simply because the plaintiff has not taken all in his judgment he might have done? The defendants were not parties to the replevin action. Instead of being concluded by a finding there as to value, they may be heard here thereon. They profit rather than lose by the omission. This question was well considered by the supreme court of Indiana in the case just cited, and we agree with them that “ it does not follow that the absence of such assessment and judgment shall have the practical effect of a finding and judgment that the property was of no value, or that no other tribunal shall examine the question.” See also as sustaining these views, Kaffer v. Harlow, 5 Allen, 348; Mason v. Richards, 12 Iowa, 72; Hawley v. Warner, 12 Iowa, 42; Hall v. Smith, 10 Iowa, 45. The decisions of the supreme court of California upon this question, 7 Cal., 568, and 24 Cal., 147, do not commend themselves to our judgment.
The decision of this court in Kayser v. Bauer, 5 Kas., 211, does not conflict with the views here expressed, and the language of Air. Justice Valentine in the opinion filed therein must be construed in reference to the facts of that case. Those facts were as follows: The creditors of one Stern levied an attachment on his (Stern’s) goods. Hollenbeck, claiming to have purchased from Stern, replevied from the officer. He turned the goods over to Bauer, who went on his bond to the officer. Judgment was rendered for the value of .the property in favor of the defendant, the officer. The judgment was paid. Creditors of Stern then sought to garnishee Bauer as having property of Stern’s in his possession. This the court decided could not be done. The defendant in the replevin 'suit, ‘the officer, having taken a judgment for its value, and that being paid, the title of the properly replevied vested in Hollenbeck, the plaintiff. In other words, if a party takes a judgment for the value, and that is paid, he cannot afterwards claim the property also. This case would more nearly resemble that, had Schott deliv•ered the property to plaintiff in pursuance of the judgment in the replevin action, and the plaintiff had then brought suit for the value.
The judgment of the court below will be reversed and the •case remanded for further proceedings in conformity with the views expressed in this opinion.
All the Justices concurring. | [
-112,
108,
-103,
-68,
42,
96,
42,
-104,
97,
-63,
54,
-45,
-19,
-61,
17,
111,
119,
121,
-44,
122,
95,
-73,
7,
115,
-46,
-13,
-45,
69,
-72,
76,
-25,
94,
76,
49,
-54,
85,
-26,
-21,
-47,
20,
-58,
-115,
41,
105,
-39,
112,
48,
-71,
18,
3,
113,
-114,
-29,
44,
25,
-41,
-23,
40,
-5,
53,
-59,
-72,
-36,
13,
95,
22,
-128,
54,
-36,
7,
-40,
44,
-128,
61,
2,
-8,
115,
-74,
-122,
-44,
9,
-69,
8,
102,
99,
49,
5,
-31,
-8,
-120,
35,
124,
-113,
-89,
21,
88,
11,
101,
-74,
-99,
108,
67,
-93,
-4,
-54,
-99,
21,
101,
3,
-113,
-106,
-69,
15,
38,
-102,
66,
-6,
-109,
49,
113,
-51,
-104,
93,
65,
91,
-101,
-98,
-98
]
|
The opinion of the court was delivered by
Brewer, J.:
Plaintiff sued defendant in the district court, ¡alleging that he was the owner and in possession of lot No. 169, Kansas avenue, city of Topeka; that defendant claimed, some title thereto, which claim plaintiff sought to have; adjudged void. The case was tried by a judge pro tem.,, without a jury. Special findings of fact were made, and defendant’s claim to four-fifths of the lot, to wit, the north twenty feet thereof, adjudged void. Both plaintiff and defendant excepted to the judgment, and a bill of exceptions, preserves the testimony. Plaintiff made no motion to set aside the findings, or for a new trial, in the district court, butbrjngs the record directly here for review. Whether under such circumstances this court is. called upon to examine the testimony to see whether it supports the conclusions of fact, may be questionable. It is a question however which need not here trouble; us, for even a slight examination shows that the evidence in this case amply supports the conclusions. We do decide this,, however, that in a case like the present, where ’ r ? the plaintiff claims that the judgment in his favor is less than it should be, if the testimony supports the' conclusions, and they require the judgment, we; shall inquire no further. If the plaintiff insists that other-facts were proven by the testimony, which would give him a, right to a larger judgment, he must first call the attention of the court below to the matter. Failing to do this, he-waives any right to call upon this court to find additional facts.
Plaintiff’s objection to the judgment is, that it does not-adjudge Giles’ claim of title to the south five feet of said lot,, also void. Now, as the burden of proof is with plaintiff, unless the conclusions of fact show affirmatively that Giles’ claim to these five feet was unfounded, no error appears, and the-judgment must stand. The court found that the defendant’s title Avas on a tax deed, regular in form, and based upon regular proceedings. As against this,, plaintiff urges that the land at the time of the tax proceedings belonged to the public,' and Avas therefore not taxable.. It appears that the Topeka Town Association caused a litho graphic map or plat of the town to be prepared and distributed among the members before the same had been acknowledged or recorded, and before legal title to- the town site had been acquired. This plat was adopted by the association. On this map the property in dispute in this action, twenty-five feet front, was designated as lot 169. Before the acknowledgment of this plat, the president of the association, by direction of the trustees, erased the figures 169. This was done to provide for an alley twenty feet in width, and running through the north side of said premises. No new disposition was made of the remaining five feet. The plat thus changed was acknowledged and recorded. It is difficult to conceive upon what pretext the strip five feet in width can be claimed as public property. It was not included in the alley. It does not appear to have been conveyed or dedicated to any other public use. It -passed to the Town Association by their legal title, acquired in July, 1859. Until conveyed away by them it was their private property, and subject to taxation.
Again, it is claimed that if the five-feet strip was taxable it was not lot 169; that lot had been destroyed by the erasure of the figures; there was no property answering to such description; hence a tax deed conveying lot 169 passed nothing. The conclusions of fact present no such question as this. They find that the tax proceedings were regular, and conveyed to Giles a good title to this five-feet strip. How it was described in the tax deed does not appear in the findings. This would be sufficient to dispose of the question. But if we go beyond the findings and examine the testimony, it appears that in the tax proceedings the property assessed and sold was described as “lot 169.” That such a lot now exists, and embraces the five-feet strip, is evident. At least, unless it does exist, and embrace that strip, plaintiff has no cause of complaint here, or of action below, for all the property described in his petition is “ lot 169.” More than that, when the alley was in 1866 vacated, and the title of the city thereto relinquished, it was described as “the north twenty feet of lot 169.” The property was assessed fora series of years as lot 169. The dedication of four-fifths, or indeed any fractional part of a lot or block to public uses, does not necessarily deprive the remaining poi’tion of the previous number or name of the whole. This five-feet strip might for anything that appears in the testimony properly pass as lot 169 after the dedication of the remaining twenty feet to the use of -the public as an alley. The alley portion would of course lose its right to the number. It had ceased to be private property, and could no longer be described as a lot, or any portion thereof. These being the only objections raised to this judgment it must be affirmed.
All the Justices concurring. | [
-15,
-18,
-16,
-98,
24,
96,
42,
-8,
97,
-95,
54,
123,
109,
-53,
0,
57,
-30,
57,
-43,
106,
70,
-73,
7,
-53,
-10,
-77,
-37,
-35,
-79,
88,
-27,
-42,
76,
48,
74,
-11,
70,
-64,
-123,
84,
-114,
4,
-119,
84,
-45,
64,
52,
59,
96,
75,
53,
-114,
-13,
44,
25,
-61,
73,
44,
75,
-67,
81,
-8,
-116,
-107,
13,
3,
-77,
54,
-100,
67,
72,
-88,
-110,
56,
1,
-24,
115,
-74,
6,
116,
13,
-103,
8,
102,
99,
33,
61,
-17,
-8,
-103,
15,
125,
15,
-89,
18,
88,
-31,
41,
-74,
-99,
117,
16,
7,
-2,
-26,
21,
29,
124,
15,
-114,
-42,
-79,
-113,
48,
-126,
3,
-21,
3,
-79,
113,
-51,
-10,
92,
71,
50,
-101,
31,
-4
]
|
'The opinion of the court was delivered by
Brewer, J.:
Some of the questions in this case are identical with those in the case of Foreman v. Scott, just decided, .■and therefore we need not consider them in this. There are also some different questions which will require examination. It is objected as against the decree that it contained a personal judgment for money, and an order for an execution for the amount, if any, unsatisfied by a sale of the mortgaged premises. Conceding this to be unauthorized, it would not affect the validity of the decree for foreclosure and sale, nor authorize a setting aside of the whole judgment and decree. No motion is made to set aside a portion. The motion goes to •the whole. It will be time enough to consider this question when that portion of the entire entry is directly attacked.
Again, it is insisted that upon the sale of the mortgaged premises a deed was given, when there should have been only a certificate of sale according to the redemption act of June 4th, 1861. Such a deed, it is claimed, is'absolutely void. •Conceding that to be true, and the question cannot be litigated .and settled on this motion. If the judgment and decree be valid, defects in the subsequent proceedings cannot be inquired into on a motion to set aside the judgment. More than that, no suggestion of or reference to either of these two points is made in the motion. It is based upon altogether different matters.
The notice of publication needs to be noticed. There were two cases of “Challiss v. Headley & Carr,” one of attachment, and the other of foreclosure. The service in each was by publication. It seems from the record before us that the notice in the attachment was filed .in the foreclosure suit, and ■entered in its final record. So far as any entries made by the ■cleric, on the margin of the record, at the instance of the attorneys, is concerned, they amount to nothing, and do not change the record in the least. All we decide in regard to this notice, is, that if a mistake was made, by filing the wrong notice in the foreclosure suit, this mistake may be ■corrected and the proper notice with proof of its publication be now supplied.
The order of the district court will be reversed and the ■case remanded with instructions to permit the amendments to be made, the motion afterwards to be decided according to the principles here laid down.
All the Justices concurring. | [
-15,
-4,
-36,
-68,
10,
96,
-86,
-104,
-56,
-80,
-89,
83,
109,
-62,
0,
105,
-9,
9,
85,
105,
85,
-90,
23,
-7,
-14,
-13,
-45,
93,
61,
76,
-28,
23,
76,
32,
-54,
-43,
102,
-54,
-57,
80,
78,
-83,
9,
101,
-7,
0,
48,
123,
84,
79,
85,
-116,
-29,
44,
25,
-61,
73,
40,
-55,
61,
-48,
56,
-100,
13,
127,
1,
49,
39,
-100,
71,
120,
-86,
-112,
57,
1,
-24,
115,
-74,
6,
116,
79,
27,
40,
98,
98,
0,
77,
-17,
-104,
-104,
46,
-1,
-113,
-90,
-106,
88,
-127,
32,
-74,
-99,
124,
0,
71,
-2,
-26,
5,
29,
108,
13,
-114,
-42,
-73,
-113,
116,
-102,
11,
-18,
-125,
48,
33,
-51,
-32,
92,
99,
25,
-103,
-114,
-3
]
|
The opinion of the court was delivered by
Brewer, J.:
This case hinges on the validity of a tax title. Plaintiff in error claims that the tax deed was void on its face, or, if not, was shown to be void by the other testimony in the case. Was the deed void on its face? The only reason assigned on the trial was, that the “ land wras not •sold in September 1862, for non-payment, of the taxes of 1861.” This reason is not pressed in this court-, but a new one is urged, one not presented to the district court. We might perhaps upon settled rules decline considering cither.. The reason given below is not borne out by the language of the deed, and that is all that is open to examination on this objection. The reason given here, is, that the deed recites the sale as made at “the sale begun and publicly held on the-2d day of September,” without reciting that the county treasurer unavoidably omitted or failed to sell on the first Tuesday of May. That the power to sell on the 2d day (that being the first - Tuesday) of September \ , & , ,. „ depended on the tact ot an unavoidable omission or failure to sell in-May/may be conceded. (Comp. Laws,. 873, §70.) But it does not follow therefrom that the validity of the deed depends upon the recital of the fact, or that an omission to recite is evidence of its- non-existence. In cases-where no record or written evidence is required to be preserved, an official act, which can be rightfully done only after some precedent act by the same officer, is itself presumptive-evidence of the performance of such precedent act. The fact that the treasurer sold in September, is sufficient, in the-absence of anything to the contrary, to show that he unavoidably omitted or failed to sell in May. Lessee of Ward v. Barrow, 2 Ohio St., 241; Lessee of Combs v. Lane, 4 Ohio St., 112. The sale in September is not an adjourned sale.. It is an independent, complete proceeding, with advertisement, and other requirements, like to those of the May sale. (See section just cited.) Nowhere is the treasurer required to-make or preserve a record of the causes of the failure to sell in May; and surely a failure to sell in-May is a matter of which the owner of the land has little cause to complain, for without adding to thé burden it increases the time within which he can redeem. But again, the form prescribed in the-statute (Comp. Laws, 877, § 10,) Avhich is a form for sales made in September as avcII as those in May, contains no such recital, so far as this point is concerned. The deed is almost a literal copy of the form. The rule is clear, that where the statute contains a form of any instrument a compliance Avith that form is sufficient. A sim ilar question arose in Falkner v. Dorman, 7 Wis., 388. In deciding that case the court uses this language: “It was insisted that the deed was not admissible in evidence because-it did not show on its face that it was executed under and in pursuance of the special power given by the statute. But upon comparing the deed with the form given in § 5 of the act of . 1852, we do not see but it substantially complies with the form therein prescribed, and probably is a good and sufficient deed in this respect. Eor we suppose a deed made in strict conformity to a particular form prescribed by. the •statute to be observed, in the execution of deeds, must be held .valid as far as the form is coneerñed.” The many authorities cited by counsel for plaintiff to the point that “ the sale must fake place at the precise time prescribed by law, otherwise it will be void,” are inapplicable, for there is no question that a ■sale Could be rightfully made in September. The only ■question is, what proof must there be that this was one of the lots which could be then rightfully sold ?
The deed being regular upon its face, did the other testimony show it to be void ? Plaintiff' claims that the testimony shows there was in fact no sale made, and that even if one had been attempted, it would have been void, as the land was not subject to sale. The finding of the district court being a general finding, that the allegations of the answer were true, was in effect a ’finding that a sale had been made. It is seldom that the finding of the district court upon a question of fact will be disturbed in this .court. Certainly not where the testimony is anything like evenly divided. The recital in the deed of a , „ . , , ,i , n sale is prima jaeie evidence that one was made. .See §10, p. 877, Comp. Laws; Bowman v. Cockrill, 6 Kas., 311; Knox v. Cleveland, 13 Wis., 245. As against this is the fact that in the sale-book of the lands, sold in 1862, for •tire delinquent taxes of 1861, this land does not appear, and also that on the list of lands sold in 1859 for the delinquent taxes .of 1858 this land is entered. Further, in regard to this, last sale, and the taxes for subsequent years, it appears that iii the list, ancl under the head of “Amount of Taxes,v there is no entry of amounts of taxes for the years 1858, 1859, and 1860, but there is an entry of the amount of taxes for the year 1861, and that The taxes on said land for the year 1861, amounting to $8.41, were charged up to said land in said tax-sale books for the year 1858.
The entries in the county treasurer’s books were immajacie evidence of facts therein recited to have been done. Nothing higher than this can be claimed for them as to the fact of a sale. The certificate of sale would be the best evidence.. That being wanting, the records of the county treasurer’s office would be competent. The authorities cited from Kentucky and Iowa- as-to the effeckofthe recitalsdn the sale-book are not in point, for in those states the certificates are made out and issued from the recitals, while under our statutes the certificates are made out on payment of the bids, and the sale-book, after the close of the sales. As to the comparative weight of the recitals in the sale-book, and those in a deed, or which would prevail in case of conflict, we need not inquire, for here we have a positive recital in the one as against an omission to recite anything in the other. It bears a close analogy to the comparative weight of positive and negative testimony. Thus much in regard to the omission to enter this land in the list of lands sold in 1862. In regal’d to the recital of a sale in 1859 for the taxes of 1858, laying out of consideration a redemption-receipt signed by the county clerk alone, (as coming within the scope of the decision in Shelton v. Dunn, 6 Kas., 128,) the patent offered by the plaintiff is dated Oct. 1st 1858, and there is nothing in it to show when the equitable title passed from government. Under this state of facts the land was hot subject to taxation during the year 1858, and the attempted sale in 1859 was void. Taylor v. Miles, 5 Kas., 505. Of course, this sale being void there was no authority to charge up to it subsequent taxes. The attempt to charge up the taxes of 1861 was inoperative to prevent a sale in 1862 for these delinquent taxes. It is worthy of note that, except as indicated by the county clerk's redemption receipt for the taxes of 1858, above referred toj there is no pretense in the testimony that any taxes were paid on this property.' It seems to us therefore that the sale in 1859 was void, that the land thereafter was subject to taxation and sale, and that the weight, of the evidence sustains the finding of the district court as to the fact of a sale in 1862. The property was subject to taxation in 1861. The taxes do not appear to have been paid. It ought then to have been ■sold. The presumption, so far as any exists, would be that the treasurer would do his duty. The tax deed, which is prima facie evidence, recites a sale.
We have considered this case purposely without reference to the question of the effect of* the limitation law upon it. The tax deed was recorded Sept. 19th, 1864, and this suit was commenced March 26th, .1871. Independently of the question whether or no the action is barred, we think the judgment of the district court should be affirmed.
All the Justices concurring:. | [
-77,
126,
-35,
-100,
-86,
64,
34,
-104,
40,
-91,
37,
115,
109,
-126,
16,
41,
-89,
45,
117,
74,
86,
-77,
51,
75,
-10,
-13,
-53,
-35,
53,
77,
-10,
86,
76,
32,
74,
-107,
70,
-22,
-51,
80,
-114,
-114,
-88,
76,
-47,
-64,
52,
127,
106,
73,
117,
-126,
-29,
62,
29,
67,
105,
40,
75,
59,
-48,
-72,
-66,
-123,
95,
7,
-111,
118,
-100,
67,
-24,
-118,
-80,
49,
-64,
-24,
123,
-74,
-122,
112,
45,
-119,
41,
102,
102,
1,
37,
-1,
-88,
-72,
14,
-42,
13,
-89,
16,
120,
-61,
41,
-74,
-99,
124,
16,
102,
126,
-18,
-123,
89,
124,
15,
-113,
-42,
-77,
-113,
108,
-118,
1,
-9,
-109,
48,
113,
-49,
111,
92,
99,
48,
-101,
-114,
-8
]
|
The opinion of the court was delivered by
Valentine, J.:
On the 3d of December 1870 the defendant in error P. M. Tomlinson filed in the office of the county clerk of Atchison county a claim against said county for supplying prisoners. On the 2d of January 1871 he presented said claim to the board of county commissioners for their examination and allowance. The board examined the same but disallowed it. Tomlinson then appealed to the district court. In the district court the parties in addition to said claim filed a written stipulation admitting the truth of certain facts, and presenting to the court only two questions for consideration—one of law for the court, and one of fact for the jury. The question of law was, whether upon the claim presented by Tomlinson, and the facts admitted by the parties, taken together, there was any liability on the part of the county to Tomlinson, and if there was, then, as a question of fact, what was the amount of that liability? The question of law was presented to the court and decided before the jury were impanneled, and proper exceptions were taken to the decision of the court. This was sufficient to enable the party excepting to bring the question to this court. But as the decision was against the county the counsel for the county thought proper to again present the question to the court, which he did at two or three other and different times, and at each time the decision was against the county. The court decided the question a second time by admitting evidence over and against the objections of the defendant below, and again in charging the jury, first, by giving the first instruction asked for by the plaintiff Tomlinson, and second, by. refusing to give the first and sixth instructions asked for by the defendant below. The question of fact was found by the jury. They found that the amount .of the liability of the county to Tomlinson was $1,072. Judgment was rendered against the county and in favor of Tomlinson for that amount, and from that judgment the county now appeals to this court.
The question of law is now presented to us. "With the question of fact we have nothing to do. We think the court below decided the question of law erroneously. Upon the Jln.im presented to the county commissioners they (the commissioners) decided correctly. The claim did not show upon its face any liability on the part of the county to Tomlinson. It did not make out a prima fade case in his favor. And even if it had done so, it was not in such a form that it could legally be allowed. First, it showed that Tomlinson was only the undersheriff and jailor of said county, arid that he was not the sheriff, to whom only the county is liable for supplying prisoners. Nor did it show any agreement on the part of the county to pay Tomlinson for supplying prisoners, nor that the sheriff had in any manner transferred his right to compensation for supplying prisoners to Tomlinson. Second, the claim was not properly itemized as prescribed by law r Gen. Stat., 259, ch. 25, § 28. Said claim showed that it was a claim for supplying certain prisoners on certain days at two dollars per day. But it did not show what kind of supplies was furnished, nor what was the nature of the service or labor in furnishing them. No pleadings in form were filed in the district court by either party. The said claim and the said written stipulation were intended by the pai’ties to answer for pleadings. If they showed a cause of action in favor of the plaintiff and against the county then the court decided correctly in submitting the question as to the amount of the claim to the jury; but if they did not prima fade show such a cause of action, then of course the court erred in its decision. We have already seen that the claim alone did not show such a cause of action. The question now is whether the claim and stipulation taken together did. We think they did not. The mitten stipulation did not assist the claim where the claim was defective. In fact it had rather the effect to show that if the claim had been itemized and presented by the sheriff himself it could not legally have been allowed. The stipulation showed that the county had already paid sixty ' cents per day (all that the law allows,) for boarding each of said prisoners, and had paid in full for washing, for soap, and for lights and had furnished fuel, and rooms in the county jail for the jailor, free of charge. For Avhat then was Tomlinson’s claim? Was it for furnishing such articles only .as were mentioned in the claim and stipulation, or was it for furnishing other articles? Was it for the value of the articles furnished, or was it for the value of the service or labor performed in furnishing the same? It could not be for furnishing articles not mentioned in the claim or stipulation, for the law requires that no account against a county shall be allowed •“ unless the same shall be m.ade out in separate items, and the nature of each item stated. And where no specific fees are ¡allowed by law,” (and we suppose that no one will claim that the claim of Tomlinson was for specific fees,) “the time actually and necessarily devoted to the performance of any ¡■service charged in such account shall be specified.” (Gen. Stat. 259, ch. 25, § 28.) This law we suppose governs the district court in cases taken there on appeal as well as the board of county commissioners from whom the appeal is taken. We hardly suppose that the district court is authorized to allow a claim or account so defective in form or substance that the board of county commissioners could not allow it when presented to them. Neither could Tomlinson’s claim be for the value of the articles furnished, for the county had ■already paid for such articles their full value. The claim .seems to be for an additional allowance to the plaintiff below for his time and personal services in the procuring of the supplies mentioned in the stipulation, and for furnishing the same to the prisoners, and the personal care and attention connected therewith. (See latter part of the stipulation— the question of law.) If such is the claim, then he certainly cannot recoveiwfirst, because ho is not the sheriff, and .does not show any right from the sheriff Second, because the sheriff himself would not be entitled to recover on such a bill ©r claim. The county had already paid the statutory price, or fees, for boarding the prisoners. And boarding prisoners within the meaning of the statute (Gen. Stat., 477, ch. 30, § 3,) probably includes .everything necessary for the prisoners to have in eating, drinking, and sleeping, and everything necessary for them to have to properly prepare themselves for eating, drinking, and sleeping, such as •soap, towels, plates, knives and forks, and the like. And it probably not only includes the articles furnished, but also the service and labor in furnishing them. If this is the proper construction of the law, then of course the plaintiff cannot recover. Section 10 of the act concerning county jails (Gen. Stat., 531, ch. 53,) which provides that “the county board shall allow the sheriff his reasonable charges for supplying prisoners,” does not repeal the other statutes fixing the fees of the sheriff for supplying prisoners. The fee for boarding prisoners is fixed by law at sixty cents per day, and no additional allowance can be made therefor, either for the articles furnished or for the labor in furnishing them. Said section 10 does not apply to such a case. It only applies to cases where the legislature have not fixed the fees for supplying prisoners, as for furnishing a prisoner with a bible or new testament, or medical aid, etc.
There was some evidence introduced and permitted to go to the jury tending to show that by an arrangement between the sheriff and the plaintiff below that the plaintiff should receive everything that should be paid by the county for .supplying prisoners, but as there was no issue of this kind presented to the jury no question as to who was entitled to recover from the county for supplying prisoners, but only the question as to how much should be recovered, this evidence was wholly irrelevant and incompetent, and can now have no effect in the decision of this case.
The question as to whether the plaintiff could recover was a question of law for the court to determine upon the facts alleged in the claim and stipulation. And as we think the plaintiff did not make out a prima fade case by the allegations contained in said claim and stipulation, the court below erred in its decision. It should not have submitted the case to a jury at all. The judgment of the court below is reversed.
All the Justices concurring. | [
-16,
-18,
-3,
29,
90,
96,
2,
-104,
9,
-93,
-9,
119,
-119,
-38,
8,
119,
-85,
57,
84,
121,
66,
-73,
23,
97,
-14,
-13,
29,
-43,
-79,
93,
-2,
-10,
77,
32,
-54,
-43,
-90,
74,
-59,
94,
-50,
-116,
-87,
-29,
-39,
16,
60,
105,
102,
11,
49,
-114,
-21,
42,
28,
-45,
73,
56,
-55,
58,
17,
113,
-114,
-123,
110,
10,
-79,
32,
-104,
39,
-8,
46,
-104,
53,
64,
-24,
121,
-74,
-126,
-12,
45,
-87,
13,
100,
103,
33,
29,
-17,
-71,
-103,
31,
-2,
-115,
-89,
48,
88,
43,
73,
-105,
-99,
124,
20,
7,
126,
-20,
21,
93,
44,
5,
-117,
-80,
-77,
-115,
100,
-118,
-77,
-21,
33,
50,
113,
-59,
-78,
88,
70,
58,
27,
-97,
-4
]
|
The opinion of the court was delivered by
Brewer, J.:
A single question is all that is involved in this case. At what time did proceedings in a certain case in bankruptcy commence? This is presented as a question of law, for the facts are undisputed. These facts are contained in the 2d and 5th findings of fact made by the district court,, which are as follows:
“ 2d. On the morning of the same day, that is, at the hour of nine o’clock and fifteen minutes, on the forenoon of February 6th, 1871, certain creditors of the said firm of Charles' Liebenstein & Co., who were then merchants engaged in business, and residents in the city of Leavenworth, in this county, presented a petition in due form, and regular in all respects, to the Hon. Mark W. Delahay, Judge of the District Court of the United States for the District of Kansas, alleging acts of bankruptcy on the part of said firm, and asking that they might be adjudged bankrupts, and that such other proceedings might be had as authorized and provided for by the bankrupt law. And the Judge of said United. States District Court, thereupon, at the hour last above stated, at the office of the Register of Bankruptcy for this district, in said city, made and granted three several orders—one for the injunction, one for the arrest of the members of said firm,, and one directing the defendant Houston, who was then, and still is Marshal of the United States for said District, to forthwith take possession, provisionally, of all the goods, wares, merchandise, and property of said firm; and the said Judge fixed the. amount of bail to be given on said order of arrest at $10,000.
“ 5th. At the time said petition was presented to the aforesaid Judge of the United States District Court, and the said orders thereon were made as aforesaid, Hiram Griswold, Register in Bankruptcy for this district, noted on the back of said petition, the hour of said day, to wit, nine o’clock and fifteen minutes; but the said petition had not then, nor was' it until the following day, sent to and filed in the office of the clerk of said district court, at Topeka, on which last-named day said clerk signed his name to the indorsement of filing made as aforesaid by said register on the back of said petition.”
These proceedings in bankruptcy were carried on to successful consummation, and Liebenstein & Co. adjudged bankrupts. The title under which the plaintiff in error, plaintiff below, claims, dates from ten o’clock and fifteen minutes on the morning of February 6th 1871, or an hour later than the time of issue of the orders in bankruptcy. By § 14 of the bankrupt act the title of the assignee in cases of voluntary bankruptcy relates back to the commencement of .the proceedings, and by §42 a like effect is given to proceedings in involuntary bankruptcy. The first paragraph of § 38, reads:
“Sec. 38. And be it further enacted, That the filing of a petition for adjudication in bankruptcy, either by a debtor in his own behalf, or by any creditor against a debtor, upon Avhich an order may be issued by the court or by. a register in the manner provided in section four, shall be deemed, and taken to be the commencement of proceedings in bankruptcy under this act.”
When was the petition filed in this case ? An examination ■ of the indorsement over the signature of the clerk shoAvs that it Avas on February 6th 1871, at 9.15 a.m. But this indorsement is not a record, so as to import verity, and conclude the parties. Going back of the indorsement the facts are, that while the petition Avas in the hands of the judge and register at that time, and while process was then issued thereon, it did not reach the clerk or clerk’s office till the next day. The indorsement, excepting the signature of the clerk, Avas made by the register at the time he received the petition. Was that a “filing,” within the meaning of the section -quoted? “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.” 1 Bouvier’s LaAV Diet., 524. The indorsement is not the filing. It is simply evidence of it. The clerk of a court is the custodian of its papers and records. To him must be - delivered any paper which is to belong to the files of that court. The commencement of proceedings in bankruptcy is the commencement of a suit in the district court. In re, Adams, 2 Bank. Reg., 92. “The clerks of the several district courts .shall enter upon each petition in bankruptcy, the day, and the hour of the day, upon which the same shall be filed, and shall also make a similar note upon every subsequent paper filed AA’ith them; and the papers in each case shall be kept in :a file by themselves.” General Orders in Bankruptcy No. 1. If this was all that bore upon the question, it would be one ■of little difficulty, and we should be compelled to hold that the filing did not take place until the 7th of February, the time the petition reached the clerk’s office. And this is the rule applicable to every other court, and to almost every other •class of cases. But bankruptcy proceedings are sui generis; .and we arc satisfied that this petition was filed at the time it passed into the hands of the judge- and register, and on it process had been issued. By the first section of the bankrupt law, the district courts arc constituted courts of bankruptcy. -“The said courts shall always be open for the transaction of business under this act, and the powers and jurisdiction hereby •conferrcd shall be exercised as well in vacation as in term time, and a judge sitting at chambers shall have the same powers and jurisdiction * * * as when sitting in court. * * * Said courts may sit for the transaction of business in bankruptcy at auy place in the district, of which place and the time of holding court they shall have ■given notice, as well as at the places designated by law for holding such courts.” Bankrupt Law, § 1. It seems ‘ from this that not only is the bankrupt court always open, but that it may be a movable court. It is said the clerk’s, •office and the clerk follow the court; but for the transaction •of other than bankruptcy business the clerk’s office is stationary, at the place designated by law. But the holding of • court necessitates the filing of papers, and the issue of process. The one can make little progress without the other. Hence it appears at the very outset of the bankrupt law, that congress contemplated the necessity of filing papers otherwise than by delivering them to the clerk, at his stationary office, .although it provided that such office should be their final •place of custody. To make more serviceable this bankrupt law, a new officer, a register in bankruptcy, was created, with functions partly judicial and partly ministerial. At his •office, and by him, is transacted a lai’ge proportion of the .bankrupt business. General Order No. 2 reads as follows: “All process/ summons, and subpoenas, shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks with the signature of the clerk and seal of the court may upon application be furnished to the registers:”- If the petition must pass to the clerk’s office before process may issue, why leave blanks elsewhere than at that office ? Fuinishing registers with blank processes, signed and sealed, gives them authority to use them. But the issue of process implies a case in court, the filing of a petition. Again.by General Order, and in § 4 of the law, a memorandum of all acts by a register must be made, entered in a docket of his own, and forwarded by at least the mail of the subsequent day to the clerk, to be by him entered in a minute book of proceedings in bankruptcy. These proceedings are entered in this book as of the date of performance by the register, and not of the date of receipt by the clerk. In other words, the record of the clerk tallies in point of time with the- acts of the register. A similar requirement obtains in regard to papers. See General Order No. 7. There are other provisions of the bankrupt law which .bear with more or less force upon this question, and which point in a similar direction to those last quoted. The judge of the U. S. court, when he ordered process to issue in this case, evidently considered that the petition was filed. We understand that a like practice exists in other districts. While the construction of a federal law by the federal courts, other than the supreme, is not conclusive, it is nevertheless entitled to careful consideration; and where that construction generally prevails it will have great influence with us in coming to a decision. The judgment of the district court will be affirmed.
All the Justices concurring. | [
-16,
106,
-7,
78,
10,
96,
42,
-102,
104,
-95,
37,
115,
-23,
-61,
0,
121,
-14,
9,
-43,
122,
-59,
-73,
19,
-21,
-46,
-13,
-35,
-51,
-78,
93,
-28,
-43,
12,
8,
50,
-107,
-26,
-54,
-47,
28,
-114,
5,
9,
-28,
-47,
24,
48,
123,
118,
11,
113,
46,
-45,
42,
24,
122,
73,
45,
-55,
45,
-16,
-16,
-113,
-113,
109,
19,
-95,
4,
-100,
71,
-56,
30,
-104,
48,
9,
-24,
114,
-106,
6,
116,
35,
-119,
44,
102,
98,
3,
37,
-55,
-28,
-88,
14,
-109,
-97,
-89,
-111,
93,
3,
41,
-66,
-99,
125,
4,
7,
124,
-18,
5,
29,
108,
5,
-118,
-10,
-109,
31,
119,
-102,
-117,
-6,
-95,
-80,
97,
-116,
50,
88,
102,
58,
-103,
-114,
-75
]
|
The opinion of the. court was delivered by
Kingman, C. J.:
The appellant John J. Medlicott was duly charged with murder in the first degree by poisoning Isaac M. Ruth. The information was filed in the district court of Douglas county, and ivas on change of venue moved to Anderson county, where a trial was had, resulting in a verdict and a judgment of guilty against the defendant, from which he appeals to this court. Numerous errors are alleged, and the case has been elaborately argued in this court. We proceed to decide such of the errors relied on as are essential; and if the reasons given for our decision are not as elaborate as the arguments, it is not because we have not given anxious and careful attention to the questions raised, such as the gravity' and importance of the matters in issue demanded, but rather because the great size of the record we have been compelled to examine most critically, and the great number of the questions presented and argued, have taken so much time that but little is left in which to give our reasons.
I. The first of the errors alleged,, and the one first presented in the order of time on the trial, arose from the rulings of the court in the selection of jurymen. The facts are substantially as follows: C. R. Anderson was sworn, and in answer to questions by counsel for defendant stated that he believed he had formed an opinion on the issue to be tried, and may have expressed such opinion, and could not say it would not take testimony to change it. Counsel for defendant then challenged him for cause. Whereupon the court asked Anderson' certain questions, in answer to which ho stated that the opinion he had formed was based upon newspaper reports only; that it was an impression merely, and not an opinion, and was dependent on the truth of the newspaper account; that he had no knowledge whether that account was true or not; that the impression was not positive or fixed, but dependent upon the truth or falsity of th'e newspaper accounts. The challenge for cause was overruled. Very nearly the same state of facts was elicited in the examination of Thomas Newton as a juror, and the challenge for cause was overruled. J. A. Maghee, in answer to questions of defendant’s counsel, stated'that-he had formed no ’opinion, but that he had a belief that would require testimony 'to change;-could not say it was firmly settled; would wish to be satisfied as to whether his belief was right or not. And again, in answer to questions by the court, stated, that he had formed no opinion or impression as to the guilt or innocence of the accused, “only a belief.” On what “the belief” was •based does not-appear. It'would require testimony to satisfy him that his belief was wrong. This man was challenged for cause, and the challenge overruled.
Each of these jurors was challenged peremptorily, and the defendant having afterwards exhausted all his peremptory challenges was deprived of the right to three peremptory challenges if there .was error in overruling his challenges of these men for cause. Our statute, criminal code, has made ■positive provision for the case, which is but a declaration of a principle generally recognized in the decided cases in other states. It is as follows:
■ “Sec. 205. It shall be good-cause of challenge to a juror that he has formed or expressed an opinion on the issue, or any material fact to be tried.”—Gen. Stat., 853.
The rule adopted by our statute has so frequently been the subject of judicial comment as to leave little room for useful extended observations. Although Anderson at.first stated .that he had an opinion, upon further questioning it appeared clearly that it was an .impression only, and that impression depended on the newspaper account, of the truth of which he had no knowledge. jWe think there was no error in overruling the challenge for cause in his case. ■ An-impression is-not an opinion, and is not made cause for challenge, by. the statute. It was claimed in the argument that the distinction attempted to be drawn between-an opinion and an. impression is technical, fine-drawn,- and unfair, .and seems not to be treated .with great respect by the text-writers. Yet we find that, the .distinction has .very generally, -been recognized.- by the courts; and seems to be founded in reason. , .In .one of the earliest .cases, and one very ..generally referred to, the juror stated that he had frequently .thought and declared the defendant guilty, if-the statements he heard were true; that he did .not know whether they were so, but only thought from ,the .great..clamor which had been made that, it might be. possible they, were true; that.hehad.no prejudice for. or against the defendant. He was admitted as. a juror, Chief Justice, Marshall observing, .that .“light. impressions,, which .may be. supposed to yield to the testimony that may be offered, which may'leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror;.but that those strong and deep impressions, which will close the mind against the testimony-that may be offered in opposition-to them, which willcombat that-testimony, and resist its force; do constitute a sufficient objection to him.” 1 Burr’s, Trial; 416. Tested by these conditions, and we cannot say that Anderson was not a proper juror. There is nothing to show bias or prejudice. There was no opinion formed. He had read about the case in the newspapers, and what he had read had made some impression, but not such as to .prevent his j udgment from being governed by the testimony in the case, and giving to it a fair and just consideration. In these times it would be-difficult to find men fit to sit upon a jury who -had not some impression as to the case, derived from newspaper accounts, where the alleged crime was of such a character as to challenge the attention of the public. As was observed by Cooley, J., in Holt v. The People, 13 Mich., 224, “To require that jurors shall come to the investigation of criminal charges with minds entirely unimpressed by what they may have heard in regard to them, or entirely without information concerning them, would be in many cases to exclude every man from the panel who is fit to sit there.” "With the present means of information, the facts or rumors concerning an atrocious. crime - are, in - a very few hours, or few days at the. farthest, spread before every man of reading and intelligence within the district from which jurors., are. to be drawn;, and over the-whole country; if "the atrocity be especially great. And. there are some crimes so great and striking that even the most ignorant will have information and impressions in-regard to them; and the rule as stated, applied to such cases; would render the impanneling of a jury for their trial “impossible; and make their - very enormity a complete protection from - punishment.” So in this case, the impression that the juror had received from' the reports in the-papers did not indicate-a state of mind that would, preclude, an .-impartial examination of the facts when presented in the form of legal testimony. It is admitted by every one that an impartial jury is imperative; but impressions, slight and fugitive in their character, such as every one forms from reading the daily press, on nearly every crime that is committed, cannot be held as rendering such persons unfit for jurors; otherwise only the most ignorant Avould be admitted to the jury-box, a result not desirable, and most dangerous to those charged with crime, and who are not really guilty. It is admitted that the authorities on this point are not harmonious. Sustaining the decision, reference is made to The State v. Potter, 18 Conn., 166; Smith v. Evans, 4 Ill., 79; Gardner v. The State, same, 85; Leach v. The People, 53 Ill., 311; Stout v. The People, 4 Parker’s Crim. R., 71; The State v. Kingsbury, 58 Maine, 238; Morgan v. The State, 31 Ind., 193. The challenge as to Thomas Newton depends upon a state of facts so similar to that just decided that nothing further need be said.
Maghee’s position was somewhat different. He had formed no impression or opinion, but had “a belief” as to the merits of the case. Now, whether a belief may or may not be stronger than an opinion, is a question we need not decide, for it is apparent to us that Maghee considered his belief as more evanescent and less fixed than either an impression or opinion, and it is the condition of his mind as to the matter at issue that we are to determine, and not the accuracy of the terms that he used. In this view he was a good juror. We do not intend to say that a belief would not in any case be a good cause of challenge, because in most cases where correctly used in such a connection the term indicates a persuasion of the mind to the truth of a proposition founded upon evidence, and might not only include opinions, but go much farther than that word indicates; but as this man had no opinion we must infer, as we do from the whole examination, that he used the term .as showing a' much weaker condition of his mind as to the issues to be tried .than the wmd opinion signifies. The court correctly overruled the challenge to this j,uror ..for cause. - .
II. The second error alleged is the ruling of the court, allowing witnesses for the prosecution whose names were not indorsed upon the information to testify over defendant’s objection. This point was settled in the case of The State v. Dickson, 6 Kas., 209, and there is nothing in this case to make it an exception to the ruling therein made, and on the authority of that case it is decided that the court ruled correctly.
III. The next error alleged is the admission in evidence of the entry in the book marked “Kansas Tribune,” on pages 18 and 19, as a dying declaration of Ruth. It was in testimony that the wife of deceased had on the 26th of April gone to Leavenworth; that the book wag among the clothing of deceased, lying upon his coat on the piano; on the coat and book was his vest, and on his vest was his pantaloons. The book was found with the tongue of the cover tucked under the loop, in the situation described, on the morning Ruth was found dead, the 27th of April 1871. ' The writing on pages 18 and 19 was proven to be in the handwriting of Ruth, and the book identified as belonging to him. It was written with a pencil, and is as follows:
“ Darling- : The Doctor—I mean Dr. Medlicott—gave me a quinine powder Wednesday night, April 26. The effects are these: I have a terrible sensation of a rush of blood to the head, and my skin burns and itches. I am becoming numb and blind. 1 can hardly hold my pencil, and I cannot keep my mind steady. Perspiration stands out all over my body, and I feel terribly. The clock has just struck eleven, and I took the medicine about 10.30 P. m. I writejbjs.sp that if I never see you again you .may- have my body examined and see what the matter is. Good-bye, and ever remember my last thoughts were of you. I cannot see to write more. God bless you, and may we meet in heaven.
“ Your loving Hubbie, I. M. Ruth.”
It has been shown that this letter was written by Ruth in a book which he usually carried with him. We will assume that it was sufficiently shown that it was written on the night of Wednesday, the 26th of April 1871; but the question. remains, was it written under such circumstances as authorized it to be read as evidence? While the particular circumstances of this case are novel, and no precedent is found presenting the same peculiarities, still the principles on which it should be admitted or rejected are “well defined, marked and clear, founded upon a plain reason, and'sustained by uniform authority.” It is a general rule that testimony must be given under the sanctity of an oath; that it must be of fads of which the witness has knowledge, otherwise the testimony is rejected as hearsay. An exception is made to this rule as to declarations, called in the law-books, “dying declarations.” In such cases certain rules are laid down with such exactness as to leave little room for mistake, and wherever there has been a mistake' the error has arisen, from a misapplication of the law to the facts, rather than from, any misunderstanding of the principles that control the admission of the testimony. These rules have been adopted to guard against the manifest danger to human life that is so liable to arise from the admission, as. evidence, of declarations not made under the sanction of an oath, and not offering to the party to be affected by them an opportunity of cross-examination, or to call attention to omitted facts, that if stated might modify or completely overturn the inference drawn from the declarations as made. / Such declarations therefore are admissible only, where the death of the person who made the declaration is the subject of the charge, and where the circumstances of the death are the subject of the dying declaration. .They are admissible only where the person making them is in articulo mortis, and in, the full belief that he is about to die./ It may be affirmed that no well-considered case has varied froin these rules, and that the_t§ndency is to greater stringency^ rather than to any relaxation in applying them to cases. It is the last point in the rules indicated that is most important in this case, in' the view we have taken of it, and reference is here made to a few of the leading cases thereon, and brief quotations made from them, as illustrating the rule by the remarks of eminent judges who have had occasion to apply the rule:
“Dying declarations are made in extremity, when the party' is at the point of death, and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath, administered in a court of justice.” Ch. Justice Eyre, in Woodcock’s case, 1 Leach, 502.
In a very recent case the decision shows the care which courts should exercise in admitting such testimony, and the judge who delivered the opinion said: “Dying declarations ought to be admitted with scrupulous, and I had almost said with superstitious, care. They have not necessarily the sanction of an oath; they are made in the absence of the prisoner; the person making them is not subjected to cross-examination, and is in no peril of prosecution for peijury. There is also great danger of omissions, and unintentional misrepresentations, both by the declarant and the witness, as this case shows. In order to make a dying declaration admissible there must be an expectation of impending and almost immediate death from the causes then operating. The authorities show that there must be no hope whatever. In this case the deceased said originally ‘she had no'hope at present.’ The clerk put down that ‘she had no hope.’ She said in effect when the statement was read over to her, ‘No, that is not what I said, nor what I mean. I mean that at present I have no hope,’ which is, or may be, as if she had said, If I do not get better I shall die.” All the court were of the opinion that the evidence was inadmissible. Regina v. Jenkins, Law Rep., 1, C. C. R., 191.
“No matter how strong the expression of the certainty of death may be, if there be any evidence of hope in the language or actions of the declarant his statements will be rejected.” Morgan v. The State, 31 Ind., 199.
“Testimony of this character is only admitted from neces sity, and an abuse of it is guarded against by the law with most minute particularity. There is no one principle better established than that such declarations shall not be received unless the proof dearly shows that the deceased was in ex— trends, (perhaps the words in articulo mortis, which are used by some of the authorities to express this condition, are more accurate,) and that he or she at the time of making them was fully conscious of that fact, not as a thing of surmise and conjecture, or apprehension, but as a fixed and inevitable fact.” Smith v. The State, 9 Humph., 9. See further on this subject, 1 Phil, on Ev., ch. 7, § 6, and 1 Greenl. on Ev., §§ 156, 157, 158; Campbell v. The State, 11 Ga., 351.
Stich are the decisions on the admission of this testimony. Admitting as we do that it was made apparent that this letter of Ruth was written on Wednesday night, the 26th of April 1871, and that on the next morning he was found dead in his bed, and conceding that it was sufficiently proven that he died of poison, is it satisfactorily shown that when he wrote he was fully aware that the hand of death was on him? If so, it must appear from the' letter itself, for all the extraneous evidence that was admitted both before and after this letter was road tends to show that he was not without hope. In the next room was his step-son, a youth fifteen years old. The house was surrounded by inhabited dwellings. At quarter before eleven the witness Apitz saw him sitting in his room apparently in pain, with his vest and pants on, which were found in the morning arranged in an orderly manner on the piano. These facts were in evidence when this letter was offered in evidence. Other facts appeared after its admission, which the judge could not know or take into consideration then, and not to be considered now, but which we may notice hereafter. The only testimony then that in any way shows the condition of Ruth’s miud to be such as to authorize the admission of the writing must be drawn from the writing itself, and the facts above stated. For this purpose the court could examine the writing, but with no better opportunities or facilities for arriving at a conclusion than this court has./ Docs the writing “dearly show” that when it was written the writer had lost all hope of' life ?/ Ruth was not a well man, and this fact is apparent from .his taking medicine. Some ailment was troubling him. When he' wrote it is evident that he had grave suspicions, that they were strong enough to induce him to take such precautionary measures as would lead to an examination if his suspicions should prove correct, and at the same time would leave within his control the evidence of his suspicions if they should prove groundless. His sufferings were evidently great. He was not able to account for them; his fears were aroused; horrible doubts filled his mind, adding to the tortures he was suffering from the pains in his body. So much we may infer. But we look in vain for the olear evidence that hope had fled. “I write this so that if I never see you again you may have my body examined and see what the trouble is.”- This is the reason he has left us why the memorandum was written. The language indicates doubt, and provides for a contingency, nota certainty.-''Why did he not call to his step-son, who was sleeping in the next room, and within- a few feet of him? Such a course would seem the most natural one, as he could talk freely with him, with less trouble and inconvenience than was possible in the method he pursued. It is left to conjecture; and it is possible that should he do so, and in the morning find himself well, it would place him in a somewhat ridiculous position, while the course he did take would cause inquiry if his suspidons should prove well founded, and would avei’t ridicule if hi& feafs were needlessly aroused. But this is speculation. The operations of Ruth’s mind at that time must forever remain unknown to us, as well as its condition; and this is the reason why the writing was inadmissible as a dying declaration. It is suggested that the memorandum shows on its face evidence of failing strength in the writer. A photograph of the letter is attached to the record, and it is not very clear that any inference can be drawn from the chirography. The last sentences are less plainly written than the first. This may result from many •causes, and it may be the result of failing strength. But'it in no way indicates the condition of Ruth’s mind. To> those who see in it the signs that the hand of death was upon him, it must still be silent as to the hope or despair that filled his mind. Again, it is said in argument, that “that species of testimony which universally convinces the intelligent mind ■of the fact alleged ought to be good evidence.” To this ■statement we give a hearty assent;- but-it is not the province ■of a court to admit such testimony except under the sanction of an oath, and subjecting .the witness to the risk of the pains and penalties of perjury, and also bringing him face to face with the accused so that he may have the benefit of a cross-examination. These rules have been found so essential as safeguards in the investigation of truth that they have become fundamental in our system of jurisprudence, and ¡some of them have been placed for greater security in our constitutions. No matter how convincing the testimony may be to the “intelligent mind,” unless it can be presented under fixéd rules it cannot be received. So in this case. The rule is established; judicial decisions have fixed the terms upon which dying declarations can be received, and those rules arc .such as wisdom and experience have suggested as most conducive to the safety of society and the protection of its members.
So far we have considered-the case upon the facts in evidence at the time the memorandum was admitted in evidence. ¡Subsequent testimony in the case tends very strongly to ¡support the conclusion previously arrived at. Not only does it appear that the step-son of deceased slept within easy call in the adjoining room, with other children of the family, a youth -to whom he had spoken kindly at bed-time, but that Ruth had caused a child that usually slept with himself and wife to be removed at bed-time to the room with the other •children, and had caused a lap dog that always slept in an easy chair in the room of deceased to be removed from the room that night. In the morning the door between the rooms was found locked with the key on the side of the door in Ruth’s room. It also appears that deceased had locked this door after Dr. Medlicott had left, and after he had bidden his son good-night. It also appeared that Dr. Rice slept in his house that night with his windows open towards the house of Ruth, from which it was distant ten feet; that from his liability to professional calls at night he was very susceptible to any alarm at night, and that he heard no call of any kind. Surrounded by these facts why did the deceased make no call for help ? The witness Apitz, whose house was but twenty-five feet distant, entered his yard about quarter hour before eleven that night, went close to the window of Ruth’s room, looked in, and saw him apparently suffering. He remained near the, window about five minutes, and thinks he heard, deceased groan. The slightest alarm would have brought - instant assistance, and possibly absolute relief. It is incredible that deceased should have felt a certainty that he was in immediate peril of his life, and not have sought assistance when he knew it was so easy to get it. It is not the way. men act when they feel that they are dying. They want not only aid, but sympathy. They require the kindly acts of their fellows, and those kindly feelings elicited by such circumstances from all mankind. On a motion for a new trial, all these facts had appeared, and on that motion were proper to be considered. It is not necessary that our reasons should be'such as to convince all minds. If it leaves the question in such uncertainty that intelligent men may differ about it, Ahen there was surely no such clear showing that Ruth believed he was dying when he wrote the memorandum as to authorize its admission as a dying declaration.^/ We have reached our conclusions in this case upon the theory of the prosecution that Ruth came to his death by poison. But whether that is so or not, or whether the poison was administered by another, or taken by himself, are questions upon which we do not feel called upon to express our views. As the case must be retried it would be. unwise to -do so.
IV. Other objections were taken to the admission of testimony, some of which require notice. Dr. Rice was called as a witness for the defense and testified as to his qualifications as a physician, as to the proximity of his resiA ^ A ' , dence to that of the deceased, the relative location of the windows of the two houses, that he was at his house the night of Ruth’s death, and heard'no call for help. He testified as to the symptoms following the administering of certain drugs, and as to the symptoms described in the book marked “Kansas Tribune,” and upon these points only. On his cross-examination he stated that he had not heard the testimony of all the physicians who had testified as to the facts of the case. He was then asked the question, “From the medical testimony which you heard, and the statement of these symptoms, what in your opinion caused the death of I, M. Ruth?” This question was objected to, and answered over the defendant’s objection. The answer was, “An overdose of morphine,” by which he explained he meant a poisonous dose. It does not anywhere appear what part of the' medical testimony he had-heard. The testimony is-manifestly improper. It was drawing a conclusion from a part of the testimony, and this is never allowable. There is some-conflict in the authorities as to whether it is ever proper to-permit a witness to draw an inference from the testimony,, when he has heard it all, but the weight of the authorities-seems to be that he may testify as an expert if he has heard all the testimony in the case, on the point to which the question is directed; but whether such a course is permissible, or the opinion of the expert must be shown by hypothetical questions, the course pursued in this case is equally objectionable. But it is claimed that in cross-examination such latitude is allowable to test the intelligence of the witness. The fallacy of the reasoning is obvious. Neither the court, nor the jury, nor counsel, knew on what part of the medical testimony the opinion of the witness was founded, therefore the answer formed no criterion of the intelligence of the witness, or his capacity to form a correct judgment. Had it appeared what part of the testimony the witness had heard, there would have been some plausibility in- the argument; but as the question was asked it ■afforded no basis whatever. It would be as sensible to test a' person’s knowledge of mathematics by asking him the sum of two and an unknown • quantity, almost known only to’ himself. The case of The State v. Reddick is referred to’by counsel as authority to support the-ruling of the court on this question; but there'is a total misapprehension of the decision in that case, or it could not be claimed as sustaining the admission of Dr. Rice’s testimony. In Reddick’s case a definite hypothetical question was asked of the witness on his cross-examination, and his opinion sought as to the sanity of the deceased in the facts as stated in the question. This was held allowable on cross-examination, the witness having previously shown his qualification to testify as an expert, and having already testified on the very question of the prisoner’s insanity. Following the illustration already used, and it may bo said that' in Reddick’s case the witness was dealing in known quantities, known to the court, jury, and counsel, as well as to the witness; therefore his answer would be a test of his intelligence. There is nothing in that case that justifies the asking of the question or in permitting the answer of Dr. Rice. That the answer wa¡? of serious importance is not denied. It was of great weight on one of the vital and difficult issues raised on the trial.
Substantially the same legal question is involved in the testimony of Dr. Fuller. He was asked a similar question under very much the same state of facts on direct examination. The observations made on Dr. Rice’s testimony are applicable to that of Dr. Fuller, and it is not deemed important to notice more particularly the éxact circumstances under which it was given. Many other objections are noticed in the brief of appellant, to the admission or rejection of evidence, but as most of them are not well founded, and others are not of importance, and not likely to occur On another trial, no further notice will be taken of them.
V. The instructions given by the court were very full, and generally accurate. They have been commented on at a great length! and particular ones have been subjected , . ... -,. 'i _ to very searching criticism, it will only bo necessary to make some remarks on those particularly pointed out as obnoxious, though we are not satisfied that there is any error that would justify us in sending the case back for a new trial were it not for the causes heretofore mentioned. Our observations will bo brief and only directed to those points where it will be wise to make modifications on another trial.
It seems to this court that there was no necessity for the first and second instructions given at the instance of the counsel for the state. That they are correct as law is not questioned. That they were not calculated to assist the jury in deciding on the issues submitted to them, seems plain,,Unless there is some cause not apparent in this case, such instructions ought to be omitted.
Again, in the charge of the court is this statement: “A few years ago it was a common error to suppose that certain vegetable poisons left no trace exclusive of any other symptoms of disease; but at present such progress has been made in analytical chemistry that it is almost as easy to discover vestiges of vegetable as of mineral poisons.” "We cannot say that this is not true. It is a fact lying more especially in the domain of another profession. But such authorities as are in reach of this court would justify the remarks that the learned judge was led into error in his statement-. 2 Beck’s Med. Jur., 416, 419, 420; Wharton <fc Stille’s Med. Jur., § 1120. These authorities are positive, and against the statement made in the charge. The same conclusion may without violence be drawn 'from the medical testimony in this case. The most that we feel justified in saying about it is, that we must withhold our assent from it until better advised. The statement must have had weight, when taken in connection with the rest of the paragraph, in giving the jury confidence in the chemical analysis that was in evidence, and which was attacked on the part of the defense by testimony of a high character.
A single remark as to instruction No. 40, asked by the defendant and refused: A portion of the law in that instruction is elsewhere given, but we fail to observe in any part of the charge any notice of the effect on the mind of the prisoner of the perilous position in which he was placed, and the great care which should be taken in weighing admissions made under such circumstances. Many of the instructions asked by the defendant and refused are given elsewhere, and some of them are couched in too strong language, and all such were properly refused.
On the first question decided Mr. Justice Valentine does not concur with the other Justices of the court.
For the reasons.given the.motion for a new trial should have been sustained; wherefore the judgment is reversed with directions to award a new trial.
Brewer, J., concurring. | [
48,
-24,
-3,
-97,
58,
100,
106,
-104,
65,
-96,
-28,
115,
-23,
-37,
9,
99,
42,
61,
85,
41,
-60,
-73,
3,
-29,
-109,
-13,
-13,
-59,
51,
-52,
-10,
-9,
72,
104,
-118,
125,
102,
106,
-57,
-102,
-114,
-127,
-23,
-32,
82,
-102,
52,
122,
50,
75,
101,
30,
-13,
42,
29,
-62,
73,
44,
-53,
63,
16,
49,
8,
13,
77,
6,
-109,
34,
-116,
-127,
72,
60,
-40,
53,
2,
-4,
123,
-106,
-122,
-44,
109,
-119,
12,
118,
102,
33,
-35,
-19,
-23,
-104,
47,
126,
-115,
-89,
-98,
65,
-21,
5,
-74,
-35,
126,
52,
15,
124,
-17,
20,
16,
108,
32,
-101,
-110,
-95,
13,
60,
-106,
-6,
-5,
-125,
48,
112,
-115,
-86,
92,
70,
17,
59,
-113,
-76
]
|
"The opinion of the court was delivered by
Kingman, C. J.:
Three questions are presented in this -case: 1st, Does the law require a promissory note, negotiable in form, but remaining in the hands .of the original payee, to be protested for nonpayment? Clearly not. The protest seryes n0 purpose,. It fixes no liability not previomsly existing, and is not required either by ^ law-merchant .or by statute. In this case the action is brought by the original payee, he averring that he ¡indorsed it to the Topeka Bank for collection only. Upon its maturity no protest for nonpayment -was necessary, either tto relieve from .responsibility or fix a .liability. The law not requiring a protest the notarial charges were not a legal •charge against the maker of the note. 1 Parsons on Notes, >646. Nor Avas the maker of the note liable for damages for nonpayment provided, for by § 14 of ch. 14, Gen. Stat. That section only gives- tlie damages Avhere there is a legal protest, and that" can only be made Avhere there is some necessity for it, or Avhere it is required by law to determine some person’s liability, or relieve from responsibility. Therefore there Avas no error in refusing to admit the protest in evidence.
II. The laAV did not require the defendant to file any bill of particulars or other pleadings before the justice of the-peace unless demanded by the plaintiff. No such demand vras made. Justice’s act, Gen. Stat., 791, § 71. Section 73, same page, fixing the time Avlien the bill of particulars of defendant must be filed, docs not pretend to define when 7 J such a paper is required. That is pointed out in If the plaintiff anticipates any of those manifold inconveniences suggested in his argument that might ¡arise from his being surprised by an unanticipated ground of •defense being sprung upon him by the defendant, he can guard against such perils by requiring a Avritten bill of particulars of defendant, if it is such a case as is provided for in §71.
Upon the appeal the cause AAras tried on the original papers. No demand Avas made on defendant for any pleading. The defense Avas usury. It is contended that it Avas error to admit testimony tending to shoAv such a defense, as there AA'as no bill of particulars or other pleading setting it up. There Avas no pleading of any kind filed by the defendant either before the justice or in tlie district court. We have seen that none AAras required before the justice, unless required by the plaintiff. The laAV (§ 7, p. 184, laAvs of 1870,) provides that the case shall be tried de novo in the district court, upon the original papers, on Avhich the cause Avas tried before the justice; unless the appellate ,court in furtherance of justice alloAV amended pleadings to be made or new pleadings to be filed; When no demand was made that the defendant should state his-defense in writing we cannot see that the court erred in trying the case as the law provides.
III. It is claimed that from the evidence the judgment is too small. If the plaintiff in error desired aii examination of this point he should have asked that the court make separate1 findings of fact, and then this court could have determined whether the district court erred in applying the law. If we were to decide the judgment too small upon the points made, we should have to weigh testimony, determine to whom credit should be given, and ascertain where the preponderance of evidence was. Ithas been repeatedly decided that this court is not in as good' a situation to settle such questions as the tribunal that saw the witnesses and heard their testimony. Finding no error, the judgment is affirmed.
All the Justices concurring. | [
-14,
120,
-80,
-34,
74,
96,
-86,
-102,
-47,
48,
-90,
115,
105,
67,
20,
113,
118,
61,
113,
74,
79,
-78,
47,
-54,
-10,
-78,
-15,
85,
-79,
-39,
-20,
119,
76,
-96,
-22,
-43,
103,
-54,
-61,
-44,
-50,
37,
9,
-59,
-15,
-64,
48,
107,
86,
75,
113,
-33,
99,
42,
24,
-58,
105,
45,
122,
9,
-16,
-8,
-103,
-99,
111,
4,
-109,
37,
28,
111,
-8,
46,
-120,
25,
17,
-24,
50,
-90,
-122,
116,
109,
57,
9,
98,
98,
33,
93,
-53,
-104,
-104,
47,
-38,
13,
-121,
-112,
88,
43,
45,
-106,
-99,
109,
16,
38,
126,
-6,
21,
24,
-20,
15,
-118,
-14,
-79,
-81,
118,
-100,
-117,
-17,
3,
-112,
113,
-50,
-88,
92,
83,
58,
-101,
-98,
-3
]
|
The opinion of the court was delivered by
Six, J.:
This case probes the interplay between a water district’s claim of exclusive control of piped treated water service within its boundaries and a water user’s dual counter contentions of no exclusivity and a violation of the Commerce Clause, U.S. Const., art. 1, § 8, cl. 3. Defendant Mission Hills Country Club (Club) appeals from summary judgment in a declaratory judgment action filed by plaintiff Water District No. 1 (District). The trial court enjoined the Club from buying water from the Kansas City, Missouri, water department and piping the water under State Line Road to water the Club’s golf course in Kansas. Finding no error in the reasoning of the trial court, we affirm.
Our jurisdiction is under K.S.A. 20-3018(a) (transfer to this court from the Court of Appeals).
The first issue is whether the Kansas Water District Act, K.S.A. 19-3501 et seq., (the Act) grants the District an exclusive right to provide pressurized treated water by pipeline within its district boundaries. Our “yes” answer prompts an additional inquiry. Because the right is exclusive to the District, does the Act violate the Commerce Clause? We find no Commerce Clause violation.
FACTS
The plaintiff District is a quasi-municipal corporation, established in the early 1950s to provide treated water to rapidly growing areas in and around Johnson County. The Act provided for the establishment of new, and the acquisition of existing, water distribution systems within the District’s boundaries.
The Club, a Missouri corporation organized as a private social and golf club, is located within the boundaries of the District. The Club’s golf course is located on the eastern edge of the District’s boundary and next to the western boundary of Kansas City, Missouri. The Club and its golf course were originally within the franchise service area of the former Kansas Water Company (KWC). The KWC was a privately owned water utility that obtained its water supply from Kansas City, Missouri. In 1990, the area formerly served by the KWC was voluntarily annexed by the District under K.S.A. 19-3512. When KWC’s service area was annexed, the Club became a District inhabitant. The Club has consistently purchased large volumes of water, at high rates of flow, from the District for irrigation purposes.
After the annexation, and in reliance on the consumption history and anticipated future demand within the KWC service area, the District invested in substantial capital improvements. The District wished to enhance its water supply facilities and distribution mains to accommodate future demand, which is affected by the large maximum day and maximum hour flow requirements of the Club. The District made these improvements in conformance with recommendations made in a 1991 hydraulic study completed by an engineering firm.
In 1994, the District developed a new rate structure to encourage reduction of peak or summer consumption of water services. The objective was to more nearly equalize the demands for water services over the year on plant and facilities and reduce the need for future expenditures for a new plant and increased facility capacity. The new rate structure resulted in a large increase in the Club’s water bill.
The Club has neither challenged the rate structure nor complained about the quality of service it received. In 1994, the Club began investigating ways to reduce irrigation costs. After deciding that use of effluent waste water would not result in savings, the Club entered into a lower priced purchase agreement with the water department of Kansas City, Missouri.
By constructing a private pipeline under State Line Road, the Club would be able to pipe pressurized treated water from Kansas City, Missouri, to water its greens and fairways. The water purchase agreement contemplates a water meter on the Missouri side of State Line Road. When the Club notified the District of the agreement, the District objected.
The District’s elected board adopted the following rule:
“Pursuant to Water District law, K.S.A. 19-3501 et seq., the Water District has the exclusive right and duty to serve, supply and service all users of treated water within its boundaries, and therefore no treated water shall be provided through any type of water supply or distribution pipe, conduit or other system, regardless of the point of supply, for use within the District’s boundaries by any other water utility or other source of supply unless otherwise authorized by these Rules or by contract with the Water District.”
Representatives of the Club’s board attended the hearing on adoption of the exclusivity rule. The Club informed the District of the Club’s intent to disregard the rule. Eventually, the District filed this action seeking to enjoin the Club from obtaining water from any source other than the District. The District was concerned that customers located on or near its boundaries would contract with adjoining water utilities to purchase water to the detriment of the District. (Six other water districts are adjacent to the District on the north, west and south.) The District believed that unless it was the exclusive supplier of treated water to citizens living within its boundaries it would be subject to “ruinous competition.”
The Trial Court’s Ruling
The lower court granted summary judgment in favor of the District, ruling that the Club could purchase water in Missouri and use the water in Kansas, if it did not use a pipeline to transport the water from Missouri. The trial court reasoned that the Kansas Legislature intended the District to be the exclusive public water utility within its boundaries and to be the only provider of treated water to inhabitants within its boundaries. In reaching the decision, the trial judge said:
“I believe it’s clear from the history of the act that the water district was established for the good of the citizens living within those boundaries or citizens the majority of whom requested that the water district expand into their area; therefore, under the facts and law of this case, judgment is granted in favor of plaintiff .. . .”
The trial judge observed: “Clearly, the legislature did not intend to prohibit individuals from using water by the customer’s own means, such as wells on the customer’s own property, obtaining water from grocery stores, things like that that were suggested within the memoranda of the parties.” On the Club’s assertion of a Commerce Clause violation, the trial judge said:
“With regard to the Commerce Clause issue, again, I — although did not explicitly address that — I did implicitly address that. I do not believe that the Commerce Clause is applicable to this case .... [M]y decision did not prohibit anyone from going outside the state or anywhere else for that matter and obtaining water and bringing it into the Water District’s boundaries so long as that was not done in the way sought by Mission Hills under these particular set of facts. My injunction goes purely to the way that Mission Hills was seeking to do it in this case which is via pipeline. If that was sought by truck, I don’t think there’s any problem with that — car, whatever method.
“... Although I’m considering that Commerce Clause matter, I don’t think we even get to that because I don’t think it has any more than an incidental effect. And I don’t frankly think that it has any effect, even incidental, on interstate commerce.”
DISCUSSION
We commence our analysis by inquiring: Does the Act grant the District an exclusive right to provide treated pressurized water by pipeline within its boundaries? What exclusivity, if any, did the legislature intend to grant to the District?
The trial court resolved the statutory interpretation question in favor of the District by granting summary judgment. Our standard of review applicable to summary judgment is well known. See Colwell v. Hasson, 260 Kan. 769, 777, 925 P.2d 422 (1996). The interpretation of a statute is a question of law. We have unlimited review of questions of law. Davey v. Hedden, 260 Kan. 413, 419, 920 P.2d 420 (1996).
The Parties’ Contentions on Exclusivity
The Club advances the premise that a public utility or quasi-municipal corporation can only exercise the powers granted to it by statute, citing Water District No. 1 v. Robb, 182 Kan. 1, 14, 318 P.2d 387 (1957), and Wiggins v. Housing Authority of Kansas City, 22 Kan. App. 2d 367, 369, 916 P.2d 718 (1996). The District does not assert a contrary rule. All concede that the Act never explicitly says that the District has an exclusive right to provide water by pipeline within its boundaries. The Club contends that the omission shows that the legislature did not intend to grant an exclusive service area to the District. The Club also argues that not only is there no express grant of an exclusive service area, but the Act does not imply an exclusive service area. However, the Club conceded in its submission to the trial court that the District had the right to exclude other water utilities from operating a “water supply and distribution system” within the District’s boundaries. The Club points out that K.S.A. 19-3509 provides for a water district’s board to have “exclusive control of the water supply and distribution facilities.” The Club reasons that “the” in this phrase refers to supply and distribution facilities belonging to the District, not to water pipelines owned by inhabitants of the District. Therefore, the Club contends, K.S.A. 19-3509 does not prohibit inhabitants from installing their own pipeline to obtain water.
The District counters that the K.S.A. 19-3509 language means “any water supply and distribution facilities,” and, therefore, the District has the right to control a pipeline such as the Club’s proposed connection to the Missouri meter. The District contends its “right to control” position is strengthened when considered in conjunction with K.S.A. 19-3517. K.S.A. 19-3517 sets out the procedure for purchase or acquisition of existing water supply and distribution systems. The Club responds that K.S.A. 19-3517 is discretionary only; the water District is not required to acquire water supply and distribution systems within its territory. We observe, however, that the discretionary power to choose is a significant power.
The District argues that there is an implied legislative grant of an exclusive service area. Wiggins, relied on by the Club to support its “no specific grant” argument, acknowledges that powers are “necessarily implied” as well as specifically granted. 22 Kan. App. 2d at 369. (Wiggins took the “necessarily implied” phrase from a school district case, Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 4, 397 P.2d 357 [1964].)
The Club argues against exclusivity by emphasizing the recent trend toward increased competition among utility companies. The District, however, is a quasi-municipal corporation. Recent relaxation of competition among private utilities is not an apt analogy.
Analysis of Exclusivity
Exclusivity in municipal services received judicial endorsement early on in Kansas. In O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551 (1915), this court upheld a Hutchinson-ordinance that allowed the city to award an exclusive contract for garbage removal. The O’Neal court set a theme for resolution of this case by observing: “Monopolies, or any restraints on trade, are against public policy, but this is a rule of the common law and does not tie the hands of the legislature.” 96 Kan. at 342.
Here the theme of exclusivity was orchestrated by the adoption of the Act. K.S.A. 19-3502 bars creation of new municipally owned and operated water supply and distribution systems in the District’s territory after the District is formed. K.S.A. 19-3502 also provides that the district created by the Act “shall be located in territory outside the limits of any territory served by or included within the limits of any previously organized municipally-owned and operated public water supply and distribution system.” Before the District can serve a territory within the limits of a previously organized water supply and distribution system, it has to purchase or condemn the territory. See K.S.A. 19-3502; K.S.A. 19-3508; K.S.A. 19-3511; K.S.A. 19-3517; K.S.A. 19-3518.
We conclude that the legislature reasoned that a territory cannot be served by two water districts at the same time. The provisions of the Act must be construed together, that is, in pari materia. See Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). We note:
K.S.A. 19-3502 (the district will not cover area of previously established water utility and no new water utility may be established in water district’s area);
K.S.A. 19-3509 (the district has exclusive control over the water supply and distribution facilities); and
K.S.A. 19-3517 (procedure for purchase or acquisition of existing water supply and distribution system).
The provisions of the Act, when read together, require the conclusion that the legislature intended the District to be granted an exclusive service area.
In Water District No. 1 v. Robb, 182 Kan. at 7, we summarized the public purpose for establishing the district that is the plaintiff here.
“There is no municipal water supply or distribution system, or any other public corporation or subdivision of the state located in the District which has any water supply or distribution facilities. All water service in the District, as well as sanitary sewer facilities, are furnished by the Kansas City Suburban Water Company, Inc., upon which the population of the District is entirely dependent. Because of the thickly populated nature of the District, it is in great need of fire protection and fire hydrants throughout substantially all its area because of the distribution of population over the area. At the present time this need has been reasonably provided for, no residence in the District being far removed from a fire hydrant.
“The water service furnished by the private water company in the past has at times proved inadequate for the needs of the Water District. Until the last year or so, there were frequent interruptions in service and a restricted supply of water which required rationing.” 182 Kan. at 7.
Water is more than a convenience, it is essential to public health and for fire protection. Operation of a water supply and distribution system is a central function of local government.
Creation of a “district” necessarily involves drawing boundaries. The Act requires the county commission to find that “the boundaries of the territory are sufficiently described” before a hearing on a petition for creation of the water district can be set. K.S.A. 19-3503. When the water district annexes territory or extends its boundaries, K.S.A. 19-3512 requires that annexation resolutions and petitions be filed with the county clerk and the register of deeds of all counties in which a portion of the district lies. The existence of a “boundary” implies that there is a protected service area. If not, the purpose of describing specific boundaries and recording the descriptions with the county clerk and register of deeds would have little purpose.
Additional reasons beyond the statutory language of the Act weigh toward our exclusive service area conclusion. The Act names what it creates, a “water district.” “District” means “a territorial division (as for administrative or electoral purposes),” and derives from Middle. Latin districtus, meaning “jurisdiction, district.” Webster’s Ninth New Collegiate Dictionary 368 (1991).
2 McQuillin, Municipal Corporations § 7.08 (3d ed. 1996) says:
“It is firmly established that there cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdiction, and privileges. The rule does not rest on any theory of constitutional limitation, but instead on the practical consideration that intolerable confusion instead of good government would obtain in .a territory in which two municipal corporations of like kind and powers attempted to function coincidentally. . . . [Mjunicipal corporations organized for different purposes may include the same territory.”
Neither party has suggested the .possibility of either a change of municipal boundary, or a request by the Club to be deannexed from the District. We note, however, that while K.S.A. 19-3504 (boundary extensions when 51% of the landowners petition for inclusion) and K.S.A. 19-3512 (mechanism whereby existing territories being served by adjoining water utilities may be annexed) provide for enlarging the boundaries of the District, there are no corresponding provisions to allow deannexation from District boundaries. The absence of deannexation authority in the Act and the K.S.A. 19-3509 mandatory provision that the District shall provide water to its inhabitants support our exclusivity conclusion.
The only source of funding for the District is from current revenues and financing from revenue bonds. K.S.A. 19-3516. The District has no ability to issue general obligation bonds or to levy any taxes. The capital improvements built to serve the Club and other water users were financed by the District with the anticipation that those costs would be recovered through future revenues derived from user fees.
The Club intends to purchase water from another water utility (a “supply system”) and transport treated water through a pipeline (a “distribution system”) into the District’s boundaries. The phrase “supply and distribution system” used throughout the Act supports the trial court’s distinction that the Club may not use a “pipeline” to bring treated water into the District’s boundaries.
K.S.A. 19-3509 provides in part:
“The water district board shall establish, manage, purchase, construct, operate, maintain and have the exclusive control of the water supply and distribution facilities and establish rules necessary for the safe, economical, efficient establishment, operation, maintenance and management of such water supply and distribution system.”
We hold that the District has an exclusive right to provide treated pressurized water by pipeline within the District’s boundaries. The Club is seeking a conditional deannexation. It wishes to continue to take advantage of District services for fire protection and domestic service, but “deannex” itself from the District for the purposes of irrigating its golf course; this it cannot do.
The Club’s Additional Contentions
The Club cites K.S.A. 66-104 and K.S.A. 66-131 in support of its contention that “the accepted rule in Kansas is that utility customers are not normally precluded from obtaining their own supply of heat, light or water for private use.” K.S.A. 66-131 refers to K.S.A. 66-104. K.S.A. 66-104 does not support the Club’s position because the private use exception applies to the first part of the statute (telephone, telegraph, conveyance of oil and gas), but not the second part (heat, light, water, and power):
“The term “public utility,” as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that notv or hereafter may own, control, operate or manage, except for private use, any equipment, plant or generating machinery, or any part thereof, for the transmission of telephone messages or for the transmission of telegraph messages in or through any part of the state, or the conveyance of oil and gas through pipelines in or through any part of the state, except pipelines less than 15 miles in length and not operated in connection with or for the general commercial supply of gas or oil, and all companies for the production, transmission, delivery or furnishing of heat, light, water or power.” (Emphasis added). K.S.A. 66-104.
The Club relies on State, ex rel., v. City of Coffeyville, 138 Kan. 909, 28 P.2d 1032 (1934), for the proposition that a customer may bypass a natural gas utility. In Coffeyville, however, the customer was the City of Coffeyville. Coffeyville did not involve a challenge from a public utility that claimed exclusive rights to serve the city. Instead, the challenge questioned the city’s changing its natural gas supplier by resolution instead of by ordinance. In deciding that a resolution was sufficient, we drew a distinction between a city’s granting a “privilege to use streets and alleys in connection with some service to the inhabitants of the city” and the city’s decision to “buy gas, just as it might buy coal.” 138 Kan. at 912. Coffeyville is not an example of competition between natural gas utility companies in the same geographical area. The Club’s use of Coffeyville is not on point.
The Club also relies on K.S.A. 12-2001, the successor to the statute involved in Coffeyville. K.S.A. 12-2001(b)(3) provides that if a city grants a franchise to furnish, among other things, water service, that franchise cannot be exclusive. K.S.A. 12-2001(b)(3) does not apply. Here, the District’s exclusive franchise was granted by the legislature. The municipality involved here is the District itself, a “quasi-municipal body corporate with the power of eminent domain.” K.S.A. 19-3502.
The Club argues that under K.S.A. 66-1,184, an electric utility customer can compete with the electric utility. Competition results from the customer’s generating electricity and selling any surplus to the utility company. K.S.A. 66-1,184 is limited to electric utilities.
The Club cites two Oklahoma cases, Westville Utility Authority v. Bennett, 903 P.2d 880 (Okla. App. 1995) and Comanche Cty. R. Water Dist. No. 1 v. City of Lawton, 501 P.2d 490 (Okla. 1972), as further support of its position that exclusive service areas are disfavored in the law.
Westville held that a town utility authority did not have the exclusive right to provide water for customers within the city limits. In so holding, the Westville court noted that the Oklahoma constitution prohibits municipalities from granting exclusive franchises. 903 P.2d at 882. The Kansas Constitution differs. See Kan. Const. Bill of Rights, § 2.
Comanche County turned on the same Oklahoma constitutional provision, and consequently is off the point for discussion here. See 501 P.2d at 492.
The Commerce Clause
Having found exclusivity lies with the District, our inquiry does not end. The Club argues that if the Act grants exclusivity, the Commerce Clause, U.S. Const., art. I, § 8, cl. 3 is violated. We disagree. We agree with the trial court that the facts here do not present a Commerce Clause issue.
The District argues that the constitutional issue is not properly before us because the Club did not serve the Kansas Attorney General under K.S.A. 60-1712. We need not reach the K.S.A. 60-1712 contention because of our conclusion on the Commerce Clause issue.
The Commerce Clause has historically been interpreted “not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.” Hughes v. Oklahoma, 441 U.S. 322, 326, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979). This restrictive aspect has been referred to as the “dormant” Commerce Clause. The dormant Commerce Clause prohibits states, unless authorized by Congress, from “attempting to advance their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state.” Hood & Sons v. Du Mond, 336 U.S. 525, 535, 93 L. Ed. 865, 69 S. Ct. 657 (1949).
A law that impacts interstate commerce can survive dormant Commerce Clause scrutiny only by advancing a legitimate local purpose that cannot be adequately served by reasonable alternatives. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970).
The Club relies on a solid waste case, C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 128 L. Ed. 2d 399, 114 S. Ct. 1677 (1994), as support for its dormant Commerce Clause position. For a general overview of Carbone’s effect on solid waste disposal, see Petersen and Abramowitz, Municipal Solid Waste Flow Control in the Post-Carbone World, 22 Fordham Urban L.J. 361 (1995). Car-bone involved a so-called “flow control ordinance,” which required all solid waste to be processed at a designated transfer station before leaving the municipality. The transfer station, while not exactly municipally owned, was “essentially a municipal facility, built and operated under a contract with the municipality and soon to revert entirely to municipal ownership.” 511 U.S. at 419, (Souter, J., dissenting). The United States Supreme Court held that the ordinance violated the Commerce Clause because it required all in-county possessors of trash to use the transfer station. In-state and out-of-state processors were thereby deprived of waste processing and disposal business. The Court noted that such business, “not so much the solid waste itself,” was the article of commerce involved. 511 U.S. at 391.
The plaintiff, C & A Carbone, Inc. (Carbone) operated a recycling center in Clarkstown and processed waste that originated in Clarkstown and outside New York state. Although Carbone already separated recyclables from collected solid waste at its own transfer station, it was required by the challenged ordinance to haul the already processed waste to the Clarkstown transfer station and pay for reprocessing. Carbone bypassed the Clarkstown station and disposed of the waste out-of-state. Clarkstown filed an action to enjoin Carbone from hauling waste out of state. Clarkstown financed its new transfer facility with the income generated by the waste flow. The town guaranteed a private company a minimum revenue from waste flow which, if not met, would be made up for by a monetary payment by the town. The flow control ordinance permitted recyclers like Carbone to continue receiving solid waste, but it required them to bring the nonrecyclable residue from that waste to the transfer station.
The Clarkstown facility competed with other facilities that received solid waste, such as the landfills in Indiana, Illinois, West Virginia, and Florida that Carbone was caught patronizing. Clarkstown did not provide trash collection and disposal services from garbage can to landfill. It did not collect trash. Instead, it intervened in one phase of the trash collection and disposal process and attempted to force customers to consume its services to the exclusion of other providers of similar services. Because other providers could be (and in fact were) located out of state, the Supreme Court held that by requiring Carbone to send the nonrecyclable waste it processed to the Clarkstown facility, the ordinance “drives up the cost for out-of-state interests to dispose of their, solid waste." 511 U.S. at 389. Also, the ordinance favored the local operator, thereby depriving “out-of-state business of access to a local market.” 511 U.S. at 389.
Carbone is not applicable to the Club-District controversy. It is true that the inhabitants of the District are prohibited from buying treated piped water from another water district. The forbidden water district can be in state or out of state. The difference here is that the District itself performs the entire piped pressurized water production and delivery operation within its boundaries and, in doing so, it provides a municipal service.
After Carbone, the United States Court of Appeals for the Second Circuit, construing Carbone narrowly, upheld two municipal solid waste flow control systems by distinguishing them from Car-bone on their facts. See U.S.A. Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cir. 1995), cert. denied 517 U.S. 1135 (1996); SSC Corp. v. Town of Smithtown, 66 F.3d 502 (2d Cir. 1995), cert. denied 516 U.S. 1112, reh. denied 517 U.S. 1150 (1996); Roddewig and Sechen, The Second Circuit Defines the Limits of Car-bone, 28 The Urban Lawyer 847 (1996). U.S.A. Recycling empha sized the municipal aspect of the system in finding no Commerce Clause violation.
In U.S.A. Recycling, the town of Babylon had elected to take over the local commercial garbage market. Babylon created a commercial garbage district. The town occupied the waste collection and disposal markets by licensing and hiring a private contractor to collect all garbage. Babylon refused to renew the licenses of any other private haulers. The contractor was allowed to dispose of town waste at no charge at a public incinerator operated by a private company. The commercial garbage collection and disposal system was financed by a flat benefit assessment to commercial property owners, plus a schedule of user fees to individual businesses.
The U. S.A. Recycling court divided its analysis into a review of (1) trash hauling and (2) trash disposal. The trash disposal aspect centered on the town’s allowing the trash hauling contractor to dump trash for free at the incinerator. The trash disposal aspect of the case does not assist in our discussion because the court held that the town’s decision to let the trash hauling contractor dump trash collected in the district for free at the incinerator constituted market participation. 66 F.3d at 1288.
The market participation exception to the dormant Commerce Clause applies when a municipality or state participates in a market. In such a situation, a state may favor its own citizens without violating the Commerce Clause. See White v. Mass. Council of Constr. Employers, 460 U.S. 204, 208, 75 L. Ed. 2d 1, 103 S. Ct. 1042 (1983); Reeves, Inc. v. Stake, 447 U.S. 429, 435-36, 65 L. Ed. 2d 244, 100 S. Ct. 2271 (1980); Hughes v. Alexandria Scrap Corp., 426 U.S. 794, 810, 49 L. Ed. 2d. 220, 96 S. Ct. 2488 (1976). Here, the District contends it is a market participant, not a market regulator, and thus is entitled to the exception. We note that the District is not merely favoring in-state buyers or disfavoring out-of-state sellers. Instead, it is requiring in-state interests to patronize it. The facts are therefore distinguishable from White, Reeves, and Hughes. Because we hold the Act is not subject to Commerce Clause scrutiny, however, we need not reach the District’s market participant contention.
U.S.A. Recycling, in the second part of its analysis, held that Babylon was acting as a market regulator rather than a market participant, but nevertheless held that the town’s actions did not violate the Commerce Clause.
The reasoning of U. S.A. Recycling in holding that the Commerce Clause was not violated is on point here. The town was forcing commercial residents to use the municipal collection system. U.S.A. Recycling found that Babylon had eliminated the garbage collection market entirely, and although that constituted market regulation rather than market participation, it did not discriminate “in anyway against interstate commerce.” 66 F.3d at 1283. Babylon did not favor in-state garbage haulers over out-of-state competitors, nor did it handicap other in-state and out-of-state businesses from competing against a group of local proprietors, because it was providing municipal services.
“No one enjoys a monopoly position selling garbage collection services in Babylon’s commercial garbage market, because the Town has ehminated the market entirely. Not even the Town itself remains as a seller in the market. Although the Town is now the lone provider of garbage collection services in the District, it does so as a local government providing services to those within its jurisdiction, not as a business selling to a captive consumer base.” (Emphasis added.) 66 F.3d at 1283.
The local government services concept distinguishes U. S.A. Recycling from Carbone. Noting that the flow control ordinances that are impermissible under Carbone require local garbage haulers to buy processing or disposal services from a local facility, the U. S.A. Recycling court said:
“In Babylon, local businesses do not buy services from anyone. Instead the Town unilaterally provides garbage services to everyone in the District. Although taxpayers in the District ultimately foot the bill for these garbage services — just as they foot the bill for street sweeping, street fighting, sewage treatment, public schools, and police and fire protection, to name just a few other basic services provided by local governments — the payment of taxes in return for municipal services is not comparable to a forced business transaction.” 66 F.3d at 1283.
We apply the reasoning in U.S.A. Recycling here. The State of Kansas has replaced the piped pressurized water market in Johnson County with the District. The District itself is a quasi-municipal corporate body. See K.S.A. 19-3502. Legislative replacement does not discriminate against interstate commerce. In creating the District, Kansas has not favored in-state piped water producers over out-of-state competitors. Nor has the State handicapped other instate and out-of-state businesses from competing against a group of local proprietors. No one enjoys a monopoly position selling piped water in Johnson County’s commercial piped water market because the State has eliminated the market entirely: Not even the District remains as a seller in the market. Although the District is now the lone provider of piped water in the district, it does so as a local government providing services, not as a business selling to a captive consumer base. The District unilaterally provides service to everyone in the district. Through user fees, inhabitants of the District pay the bill for piped water. The District is fulfilling a governmental duty, required by statute, to meet the demand for piped water. K.S.A. 19-3509.
There are problems with allowing a water district patron to elect to be served by another water district. Water is vital to human survival. The provision of clean treated water is an essential service to populated areas. The creation of a water supply and distribution system involves a tremendous public investment. It is a fixed system, with each pipe connecting eventually to the source of the water at the water treatment plant. For customers to be served by two water districts, there would have to be two distinct systems of pipe duplicated geographically to the extent that the districts overlapped. A switching system is improbable. A water distribution system is different from a trash hauling system, where public roads are used. The trash, loaded on competing companies’ trucks, may traverse the same lines of transit and may even be in transit at the same time. Here, the District provides a municipal service within its boundaries. The Club is therefore trying to purchase a municipal service outside the district, indeed out of state.
Additional language from U.S.A. Recycling is pertinent in distinguishing Carbone from the facts here. “We have already rejected the notion that the Town’s provision of exclusive sanitation services places any burdens on interstate commerce, since the Town pro hibits all garbage haulers from contracting with local businesses.” 66 F.3d at 1287.
“This ease boils down to two simple propositions. First, towns can assume exclusive responsibility for the collection and disposal of local garbage. Second, towns can hire private contractors to provide municipal services to residents. In neither case does a town discriminate against, or impose any burden on, interstate commerce. The local interests that are served by consolidating garbage service in the hands of the town—safety, sanitation, reliable garbage service, cheaper service to residents—would in any event outweigh any arguable burdens placed on interstate commerce.” 66 F.3d at 1295.
The District, as a quasi-municipal corporation, is providing a governmental service; thus, there is not any “commerce” to call the Commerce Clause into play. The services due a citizen (“inhabitant” under the Act) from the District, mandated by the legislature and rendered within the boundaries of the District, are not items of commerce.
Affirmed.
McFarland, C.J., and Larson, J., not participating.
Rorert H. Miller, C. J. Retired, and Rorert J. Lewis, Jr., J., assigned. | [
-12,
122,
-36,
-51,
28,
-30,
48,
-102,
72,
-79,
-27,
83,
-115,
-54,
-124,
125,
-21,
125,
113,
121,
-60,
-78,
111,
-64,
-106,
-13,
-5,
93,
-70,
93,
-28,
-49,
76,
-16,
10,
-75,
86,
-118,
-43,
-34,
-114,
6,
27,
65,
-39,
-61,
52,
107,
18,
78,
21,
15,
-13,
41,
25,
-29,
-95,
44,
-55,
45,
65,
-16,
-8,
-35,
127,
21,
32,
4,
-120,
-89,
-64,
34,
-104,
121,
25,
-20,
-13,
-90,
-122,
52,
15,
-101,
-87,
34,
98,
35,
48,
-53,
-20,
-99,
12,
-33,
-115,
-90,
-107,
88,
104,
-117,
-108,
-97,
116,
22,
7,
120,
-26,
-123,
95,
-20,
1,
-121,
-76,
-127,
13,
-4,
-61,
70,
-17,
-73,
33,
100,
-58,
118,
126,
-41,
54,
-97,
-114,
-112
]
|
The opinion of the court was delivered by
Porter, J.:
This action was brought April 24, 1916, by the plaintiff for partition of certain real estate, the defendants being the executor of the last will of her husband, John W. White, sr., and his heirs and devisees. The plaintiff claimed an undivided one-half interest in the property. The court found in favor of the defendants and rendered judgment against the plaintiff for the costs, and she appeals.
In substance, the facts shown by the court’s findings are:
Martha A. White, the plaintiff, and John W. White, sr., were married November 27, 1877; he was then. 52 years of. age and she was 48. Each had been married before and had a number of children, most of whom were of age. No children were born of this marriage. John W. White, sr., was the owner of 285 acres of land in Miami county, and the plaintiff owned a one-half interest in 160 acres of land inherited from her former husband, and 20 acres which she owned in her own right. In 1887 the parties had some difficulties, and on August 10 of that year they called in some neighbors to assist them in settling financial matters. Mrs. White selected J. B. Wilson to-represent her in the negotiations, and T. I. Siling was called to represent Mr. White; another neighbor, C.. F. Tracy, who was a notary public, was called in to draw up any papers that might be agreed upon. After consultations between the parties and their representatives, which occupied an entire day, the following document, drawn by the notary public, was signed:
“I, John W. White, Sr., of Sugar Creek Township, in the County of Miami, State of Kansas, while in possession of fair health and sound mind and memory do make this my will and testament on this 10th day of August, 1887. '
“1st. I give and bequeath to my wife, Martha A. White, during her natural life time, provided further that if she marries again, then this instrument shall be void and of no effect in law, the following property and the proceeds therefrom:
“The southeast Vi of the northeast Vi of section Twenty (20), Township Eighteen (18), Range Twenty-five'(25).
“2nd. One team of horses or mares; 1 wagon and harness for team; 2 cows, 5 head of hogs, such implements as are on the place sufficient to cultivate said described land; provisions and feejl until time to raise a crop on the land; all household furniture of every description, except one bedstead and bedding.
“Now we, John W. White and Martha A. White, do hereby waive all right, title or interest in any other property either of them may acquire •or have or come in possession, thereafter.
“In witness whereof, we have herein set our hands and seals on this 10th day of August, a. d. 1887. (Seal) J. W. White, Sr.,
(Seal) Martha A. White.
“Signed, sealed in presence of each of us and in presence of each of said signers to this instrument on said date. J. B. Wilson,
T. I. Siling.”
The acknowledgment by the notary public contained a recital that the instrument was written at the dictation and request of J. W. White, sr., “and after being read over by me and fully, explained to the said J. W. White and Martha A. White, his wife, they each freely and voluntarily signed the same in my presence and in the presence of the within subscribed witnesses at the residence of the said J. W. White, sr., in Sugar Creek. Township in said county and state.”
On the same day, and in the language of the findings, “as a part of the same transaction,” the plaintiff executed a quitclaim deed to her husband, which conveyed all her “undivided interest as wife of John W. White in and to the within described real estate” (describing the 285 acres owned by him), and John W. White executed a quitclaim deed to the plaintiff conveying in like terms to her all the land belonging to her; The quitclaim deeds were filed for record on September 5, 1887.
Ten years later, on August 7, 1897, John W. White, sr., executed a will in which he disposed of all his property except the life estate and personal property provided for in the instrument of August 10, 1887. Mrs. White was not present at the execution of this will and knew nothing of it at the time.
On March 11, 1913, John W. White, sr., executed a codicil to the will of 1897, which codicil referred to the will of 1897 and also to the document of 1887, confirming both, but making some changes in the disposition of the property of the testator as provided in the will of 1897. Mrs. White was present at the time the codicil was made and heard read the instrument of 1887, also the will of 1897, and the codicil. At the same time she executed her will, devising all her property to persons other than her husband.
The sons and daughters of John W'. White, sr., have occupied certain parts of the land belonging to their father for periods of 24 years and more, and they have made certain improvements upon the lands, but during all this time they paid rent to their father of practically one-third of the grain and one-half of the hay raised on the land occupied by each of them. John W. White, sr., paid the taxes during all this time.
. John W. White, sr., died September 20, 1915, aged about 90 years, and left surviving him the plaintiff, his widow, three sons, one daughter, and nine grandchildren. The instrument executed in 1887, the will of 1897 and the codicil of 1913 were filed in the probate court and. duly admitted to probate, at which time the plaintiff, Martha A. White, filed her election to take under the law.
At the death of John W. White, sr., only a portion of the property described in the instrument of 1887 was then upon the premises occupied by the plaintiff and her husband, and after his death the plaintiff took possession of a part of the household goods, but has since refused to receive the rental from the 40 acres of land described in the instrument of 1887. At the time of his death, John W. White, sr., owned the same land, 285 acres, that he had owned at the time of his marriage to the plaintiff, and in addition thereto was possessed of five or six thousand dollars in personal property and money. Findings 11 and Í2 of the court are quoted in full:
“11. I find that at the time of the signing of the instrument of August 10, 1887, that Mr. and Mrs. White then understood that they were making permanent provision for the descent of their respective properties upon the death of either, and intended that the instruments then executed .should finally and definitely settle their property relations, and-that in ease of the death of John W. White, Sr., that the plaintiff should receive the life estate in the 40 acre homestead, and the personal property described in the instrument and that she should have no further right in or to any property left by her husband, and John W. White understood that in case of the death of his wife that he would receive no part of her property and the instrument signed on that day, together with the quitclaim deed then and there executed were made for the purpose of carrying out this intention and were so understood by the parties.
“12. I find that the instrument of August 10, 1887, is testamentary in character and should be so construed.” .
As conclusions of law, the court found that the plaintiff was not entitled to a decree of partition, taxed her with the costs of the action, and found the titles of the property involved to rest in the devisees under the will and codicil of John W. White, sr., giving the plaintiff a life estate in the forty acres described in the instrument of August 10, 1887, and on condition that she should not remarry.
The first contention is that the document signed on August 10,1887, was not sufficient to constitute a consent in writing by Martha A. White that her husband might dispose of all his property by will. The statute relating to wills provides that “no man while married shall bequeath away from his wife more than one-half of his property, nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent in writing, executed. in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” (Gen. Stat. 1915, § 11790.)
The present case is substantially controlled by the decision in Jack v. Hooker, 71 Kan. 652, 81 Pac. 203. It is pointed out in the opinion in that case that the law. does not require that the witnesses shall sign the writing, but only that it shall be executed in their .presence, and that the designation of the instrument. is not important “if it amounts to a written agreement to relinquish the statutory share and that more than pnehalf of the property may be devised elsewhere.” (p. 655.) There, the consent of the wife was expressed by the execution of a deed which did not itself clearly show that it was intended to be a consent to the provisions of the will; it did not refer expressly to the other papers in connection with which it was executed, but it was said in the opinion that because “they appear to have been part of one transaction, and combine to effect a single purpose,” (p. 656) it was proper for the court to look to the other papers and the circumstances under which they were executed, in order to determine the purpose it was intended to accomplish. In the present case, while the document executed by John W. White, sr., on the 10th day of August, 1887, attempted to bequeath to his wife during her natural life and upon certain conditions, certain property, and did not dispose of the rest of his property, nevertheless, as the trial court held, it was testamentary in character. It was signed by the husband and the wife; and at the same time and as part of the same transaction they executed deeds, the purpose of which undoubtedly was to evidence the consent and agreement which had been entered into that day by which neither was to inherit any property from the other. It was said in the opinion in the Hooker case, supra, that writings of this character should be sti construed as to give every part of them force and effect, if possible. There is a similarity between the two cases in another respect. There it was said: “It is evident'that the parties, as well as the notary who assisted them, were unacquainted with legal forms and the best methods of accomplishing their purpose.” (p. 657.) But it was held that the instruments construed together showed the intention of all the parties that the deed was executed to evidence the consent of the wife to the provisions of the will. So, in the present case, the facts and all the circumstances in evidence show this to have been the intention of the parties. It is true that it was not until ten years later that John W. White, sr., executed a will which disposed of the rest of his property, and that the wife knew nothing of the execution of that will at the time. But on March 11, 1913,' this will and a codicil thereto, both of which expressly referred to the document executed in 1887, were read to her, and she gave her oral consent to them, and on the same day executed her will devising her own property to persons other than her husband. The instruments executed on August 10, 1887, were all parts of one and the same transaction, as the court finds. They were sufficient of themselves to comply with the statute, and the fact that there was no change in the intention of the parties is fully shown by what transpired in 1913. In our opinion, the conclusion reached by the court on this feature is fully sustained.
The second contention is that if the instruments executed on August 10, 1887, did amount to the consent required by the statute, then it should no,t be upheld, because it was not a fair and equitable agreement between the husband and the wife, and was not fairly and intelligently made. The evidence conclusively shows that Mrs. White understood the purpose of the agreement, and was fully satisfied with it at the time it was made. There was some conflict in her testimony when her deposition was taken and that given by her on the trial; but she admits that at the time the agreement was made she had no desire to have any part of her husband’s property in case of his death before her, and she was sure that she wanted no part of hers to go to him in the event he survived her. J. B. Wilson, who represented her at the agreement in 1887, was a witness, and in answer to the question whether he thought it was fair, said:
“We took into consideration that they were making a living on Mr. White’s place and Mrs. White had some money and got the income from her property and if she conserved that, didn’t make away with it, that if she lived to be old she would have quite a competency, and they had further told us — she said she didn’t want any of his property, and he said he didn’t want any of hers, and we thought that we was making a fair decision according to their wishes.”
There is nothing in the findings .nor in the evidence which, in our opinion, indicates that the contract was not made intelligently, or that any advantage was taken of Mrs. White’s ignorance. . She knew exactly what her husband’s possessions consisted of,.and the question whether the amount she was to receive by the agreement was fair and equitable can only be determined by considering the situation of the parties at the time the agreement was made — their age, the property possessed by each, the fact of the two. sets of children, the intention of both that the family should continue to live, on the property owned by Mr. White, and all the circumstances. We find nothing in the situation of the parties or the circumstances in the case which would justify .us in setting aside the judgment of the district court on the ground that the settlement was unfair or inadequate.
The judgment is affirmed. | [
-11,
110,
-15,
29,
42,
96,
42,
-102,
99,
-127,
52,
87,
-85,
-54,
20,
125,
114,
45,
81,
107,
-57,
-77,
23,
-96,
-48,
-14,
-15,
-35,
-79,
93,
-12,
-41,
76,
32,
10,
-107,
102,
-54,
-63,
92,
-114,
5,
11,
-20,
-45,
-32,
52,
121,
82,
72,
117,
42,
-13,
42,
61,
114,
105,
44,
105,
44,
-112,
-80,
-82,
-105,
-19,
18,
-112,
38,
-102,
-121,
72,
-98,
-100,
49,
0,
-24,
115,
-74,
22,
-12,
91,
-87,
13,
102,
106,
113,
-107,
-17,
104,
-104,
79,
122,
-115,
-89,
50,
24,
-94,
0,
-68,
-104,
125,
80,
3,
-2,
-18,
20,
28,
108,
13,
-117,
-42,
-111,
15,
62,
-104,
7,
-21,
-27,
113,
117,
-55,
98,
93,
67,
57,
-101,
-97,
-74
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.