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The opinion 'of the court was delivered by
Dawson, J.:
This case presents the question whether the grantor or grantee of a tract of land should pay the taxes thereon.
On September 23, 1913, the plaintiff made a contract with the defendants for the purchase of a farm. By its terms the plaintiff was to pay $1,000 in cash and was to be let into possession for the purpose of sowing fall wheat, and was to pay the balance of the purchase price, $11,000, at the State Bank of Holton, on March 1, 1914. The defendant was to execute a warranty deed with the usual covenants conveying the property to plaintiff, which deed at the time of making the contract was to be deposited with the Holton bank until March 1, 1914, when, upon final payment, the deed was to be surrendered to the purchaser. *
Both parties fully and promptly complied’ with all the provisions of their contract, but no express agreement or mention was made of the taxes ;which matured against the land on November 1,1913. The plaintiff grantee had to pay the taxes'; and, having paid them, he brought this action to recover the amount so paid. He prevailed, and the defendant says that this judgment was'wrong.
The pertinent statute reads:
“As between grantor and grantee of any land, where there is no express agreement as to which shall pay the taxes that may be assessed thereon, if such land is conveyed between the first day of March and the first day of November, then the grantee shall pay the same, but if conveyed between the first day of November and the first day of March, then the grantor shall pay them.” (Gen. Stat. 1915, § 11349.)
When the plaintiff closed the bargain in September for the purchase of the farm, and paid the agreed sum then due, and took possession for the purpose of sowing wheat pursuant to' his bargain, he became the grantee and equitable owner of the property. The fact that the deed was deposited with the bank to await the final payment for the land before it should be delivered to him is not a controlling circumstance, nor does it. alter plaintiff’s status as grantee under the provisions of the statute imposing liability on him for the payment of the taxes maturing after he purchased the property. The situation pre sented is precisely of the sort which the statute was designed to cover. The bank was the agent of both parties. (Davis v. Clark, 58 Kan. 100, syl. ¶ 2, 48 Pac. 563.) When the deed was delivered to the bank on September 23, 1913, there was in legal effect a delivery of it to the grantee, subject only to the subsequent condition of final payment on the first day of the following March. In Davis v. Clark, supra, it was said:
“We do not understand that a manual delivery of an escrow is necessary to invest the obligee with title to it, or to pass to him the subject of the grant. Our own decisions are to the contrary, and likewise, we think, are those of all the courts.
“The delivery, therefore, is constructively made the moment the conditions are performed. The second delivery, whether actual or constructive, operates retroactively, and, by relation back to the first delivery, is substituted to it in time and effect.” [Citing authorities.] (p. 106.)
(See, also, discussion in Scott v. Stone, 72 Kan. 545, 548, 84 Pac. 117, and in Nolan v. Otney, 75 Kan. 311, at pages 317, 318, 89 Pac. 690.)
It seems clear that the purchase of this farm was effected on September 23, 1913, and, since there was no express agreement between the grantor and grantee as to which should pay the taxes falling due the following November, the plaintiff was liable therefor. This necessitates a reversal of the judgment, and it is so ordered. | [
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The opinion of the court was delivered by
Mason, J.:
S. R. Headrick, the owner of a tract of farm land, leased it to Phil J. Price from November 1,1916, to March 1, 1918. Price held over'after the expiration of his term, and on March 5 Headrick brought a proceeding against him under the forcible entry and detainer statute. An appeal was taken from the judgment of the justice of the peace, and in the district court a demurrer to the complaint was sustained on the ground that the notice to quit was insufficient because of the time at which it was served. The plaintiff appeals.
The notice was served on February 27, and read as follows:
“notice to quit:
“ilir. Phil J. Price: You are hereby notified to quit the following described premises, to wit, The southeast quarter of section thirteen (13) Township one (1) south, Range eight (8) west of the sixth principal meridian Jewell County Kansas held by you as my tenant thereof from November first 1916 to March first 1918. And you are further notified that unléss you vacate said premises by the 4th day of March 1918 suit will be brought to eject you.
“Dated February 27th, 1918. S. R. Headrick, Landlord.”
Language is used in two Kansas eases to the effect that no valid sendee of the statutory notice required as a preliminary to the bringing of a proceeding like this can be made until the occupant’s right of possession has fully, expired. (Kellogg v. Lewis, 28 Kan. 535; Douglas v. Parker, 32 Kan. 593, 5 Pac. 178.) In the case first cited it was said, “To maintain an action of forcible detainer, the plaintiff must have a perfect right of possession at the time the notice to quit is given.” (syl. ¶ 1.) There, however, the action was begun before the defendant’s right of possession had been terminated, and the question involved was quite different from that here presented. The statement quoted was sufficiently accurate for the purposes of that case, and perhaps would be true as a general rule, but its universal application does not follow from what was there decided. In the second case cited, the defendant’s lease expired December 29. The notice to quit was given the day before, and was held to be without effect because premature. The notice (the contents of which are not stated in full in the opinion) was merely that provided by the statute, which requires the plaintiff “to notify the adverse party to leave the premises . . . which notice shall be served at least three days before commencing the action.” (Gen. Stat. 1915, § 7866.) Apart from the address, the signature, the date, and the description of the premises, it contained only the words: “I wish to notify you to leave, quit and surrender the following premises, now in your occupation.” This was clearly a demand for the immediate surrender of the premises, which is all that the statute absolutely requires, and was made at a time when the occupant was still entitled to hold them, so that the decision that it yras futile was entirely logical. True,' the action was not begun until ten days later, but nothing in the notice indicated that it was not to be brought after the lapse of the statutory period (three days) from the service.
The notice in the present case was of a very different character. It did not demand immediate possession. The portion of it which standing alone would be so construed was qualified by the subsequent statement that unless the premises were vacated by the 4th day of March suit would be brought. The defendant was thus allowed, by the terms of the notice, to retain possession for three days after the expiration of his lease and before the time set for beginning the action. For three full days after his right of occupancy had ceased, and before the time set for his departure had arrived he had notice that he was required to leave, and the fact that he acquired it by a writing delivered to him before his lease had expired in no way diminished its force or prevented its fulfilling both the letter and spirit of the statute.
We find no decisions holding this view to be too favorable to the plaintiff. Under similar statutes the courts of several states go further and hold (contrary to the decision in Douglas v. Parker, supra) that the notice may be served before the occupant’s right of possession expires, even when it amounts to a requirement to quit the premises at once, allowing no time for removal. (8 Standard Proc. 1097, note 48.) Other courts, under statutes more or less different, have held notices to be ineffectual because given before the right of occupancy ceased (same text, note 47; McDevitt v. Lambert, 80 Ala. 536, 540), but wé find no instance of the kind in which the facts were such as to present the question here considered. In most of the cases last referred to, perhaps in all of them, the notice involved was in terms or in effect a demand for immediate possession, made at a time when the owner was not entitled to it. Substantially the distinction on which we rely was recognized in Connell v. Chambers, 22 Neb. 302. There the court, although approving its earlier ruling to the effect that the notice may be served before the expiration of the occupant’s lease, held that in such case in order for it to be effective it “must, either in direct terms, or by clear and unmistakable implication, point out a day upon which the tenant is required to quit, which day must be at or after the termination of the lease.” (p. 309.)
The judgment is reversed, and the cause is remanded with directions to overrule the demurrer to the complaint. | [
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The opinion of the court was. delivered by
Marshall, J.:
The defendant appeals from a judgment convicting him of murder in the second degree. He complains of a number of matters.
One of these complaints is “that under no construction that can be placed upon the evidence in this case was the defendant, under the law, guilty of either degree of murder; and that the verdict should have been set aside and a new trial granted because the evidence shows conclusively that no offense greater than some degree of manslaughter was committed.”
There was evidence which tended to show the following facts:
John Long operated a gambling room in Hoisington, in Barton county. On the night of March 19, 1916, he, with Robert Lockridge, William Kimball, and a number of others, was in this room, gambling — playing poker and shooting craps. A quarrel arose, and fierce fights ensued between Lockridge and Kimball, in which Long took part. The entire party then left the gambling room — Kimball going to his room in a rooming house, and Long going to a restaurant. While Long was in the restaurant, Lockridge came in. Long saw Lockridge, and immediately went out the back door. Lockridge soon followed. Long went to Kimball’s room and asked for admission; this was at first refused, but upon a second request, Kimball recognized Long’s voice and admitted him. Long at once asked Kimball where his gun was. Kimball had a .45-caliber revolver in his hand. Long took the gun away from Kimball. He advised Long not to go outside and do any shooting. Long immediately went outside, and on the sidewalk said: “God damn you, I will shoot you.” He soon commenced shooting at Lockridge. The shooting occurred in an alley. Long shot at Lockridge four or five times, and hit him in the back. Lockridge had no firearms, and, when shot, was running away from Long.
Much of the evidence was conflicting, and many of the facts above stated were disputed by abundant evidence. The facts detailed were not all that tended to prove the defendant’s guilt, but they were sufficient to warrant the jury in finding the defendant guilty of murder in the second degree.
The defendant was not permitted to prove the exact language used by Lockridge at the time of the shooting and immediately- prior thereto. The witnesses were permitted to testify that Lockridge threatened to kill the defendant; that Lockridge cursed the defendant (the witnesses used the exact language of Lockridge in these respects) ; and that Lockridge applied to the defendant vile and obscene epithets, such as the witnesses did not want to repeat in the court room. The defendant insisted that the exact language sliould be repeated. The court said: -'You need not repeat any vulgar or obscene expressions that was made use of. You may designate the character of the language without repeating it.” This rule was followed throughout the trial. It appeared on the evidence introduced on the motion for a new trial that the epithets applied to the defendant by Lockridge were of the vilest character. Probably the witnesses should have been required to repeat the exact language, but it was not reversible error to refuse to do so. No substantial .right of the defendant was thereby violated. The jury must have understood that language which could not be repeated in the court room must have been of the vilest character. The defendant received all the benefit from that evidence that could have been received from the use of the exact language. The conclusion here reached is Supported by 2 Wigmore on Evidence, §§ 1159, 2180; 14 .Ency. of Ev. 219; Bell v. The State, 31 Tenn. (1 Swan’s Rep.) 42.
The defendant complains of the exclusion of certain evidence which he attempted to introduce on the cross-examination of William Kimball, who was a witness for the state. The following occurred :
“Q. About how many minutes was it before Mr. Long came to your door to get in after you saw him last? A. Something like ten or fifteen minutes, I think. Long and myself had been together about fifteen minutes before he came to the door to get in.
“Q. Was the deceased with you and Mr. Long fifteen minutes before? [Excluded.]
“Q. Do you know who it was that came up out in front of your room at the time that Mr. Long was getting the gun? [Excluded.]
“Q. How did you come to have this big gun in your hand when Long knocked at the door? A. Well, I had that in my hand for personal safety.
“Q. Were you expecting somebody to attack you?” [Excluded.]
The defendant pleaded self-defense, and contends that by these questions he sought to establish facts that were a part of the res gestee. The evidence was objected to because it was not proper cross-examination, and was excluded. In his exam ination in chief, Kimball was not questioned on any of these matters. The objections were, therefore, properly sustained.
Kimball was placed on the stand as a witness for the defendant, arid he could have been then questioned concerning everything connected with the shooting.
Another complaint is that the court refused to permit a witness to give the substance of the language used by Lock-ridge when he was going through the restaurant after Long. The following occurred at the trial:
“Q. Can you state to the jury in substance what Mr. Loekridge said? A. Not his exact words.
“Q. Not his exact words but what you remember in substance that he said?
“By Mr. Russell: Objected to as incompetent, irrelevant and immaterial.
“By the Court: I think it is a dangerous thing to do. If the witness knows what he said he may repeat it; but I think it is dangerous to attempt to say in substance what he said.
“Q. Do you know what he said in substance?
“By Mr. Russell: Objected to as incompetent, irrelevant and immaterial ; as the witness has testified in chief that he does n’t know. Could n’t remember.
“By the Court: Are you able to state now what language Loekridge used as he went through the room? A. No, I couldn’t say just the language he used.
“By Mr. Taylor: Can you tell in substance?
“A. No, none other than I heard him mumbling as he went through the restaurant.”
The last answer of the witness disposes of this proposition. He testified that he could not tell the substance of what Lock-ridge said. No error was committed.
The defendant sought to introduce evidence concerning what he believed to be the extent of his danger. He testified that Loekridge said he was going to kill him; that he believed that Loekridge ^intended to kill him; that Loekridge was trying to do so; and that he acted in self-defense in shooting at Loekridge, but did not intend to kill him. The defenant was asked the following question:
“Q. Now you may state, Mr. Long, whether or not, when you first went to Kimball’s room and grabbed the revolver — you may state to the jury what you believed was the extent of your danger.”
The defendant was not permitted to answer the question. He testified to the fullest possible extent of danger to himself. No greater degree of danger could be described.
The defendant complains that he was not permitted to show specific acts of personal violence on the part of Lockridge, nor to show that knowledge of these acts had been previously communicated to the defendant. Evidence was introduced on rebuttal which tended to show that Lockridge was a quarrelsome, turbulent, and dangerous man. This was done by showing his general reputation.
“Where character evidence 'is; offered in support of the contention that the deceased was the aggressor or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times. It may .not be shown that the deceased had engaged in frequent fights in which he used deadly weapons, and therewith made deadly assaults on his antagonists.” (13 R. C. L. 919.) (See, also, 6 Ency. of Ev. 780; 1 Wigmore on Evidence, §§ 63, 246.)
The defendant was not-permitted to answer the following question:
“Q. I will ask if you had heard Conversations, by persons round in that community, with reference to his being a turbulent, and quarrelsome , and dangerous man?”
The question was a proper one, and should have been answered. (The State v. Burton, 63 Kan. 602, 66 Pac. 633; Note, L. R. A. 1916 A, 1245.)
Was the defendant prejudiced by the: exclusion of that evidence? On the night of the shooting, he had seen enough to completely inform him that Lockridge was a quarrelsome, turbulent, and dangerous man. The jury must have understood that fact from the evidence. The exclusion of the evidence does not appear to have been prejudicial.
Complaint is made of the exclusion of the dying declaration made by Lockridge. It appears that Lockridge made a written dying declaration in the presence of the county attorney, the sheriff, and J. J. Norton. The state did not introduce the declaration in evidence, either in chief or in rebuttal. The defendant did not attempt to introduce it until after both parties had rested, although counsel for the defendant had knowledge that the declaration existed. The request for the introduction of the declaration came by way of a motion. The court denied the request in the following language :
“Now on this the 9th day of June, 1916, after the evidence in the case was closed by both the state and the defendant, and after the instructions were prepared and ready to be read to the jury; the defendant presents a certain motion, asking that the county attorney be put under oath, and required to give evidence concerning, and to produce a certain document, which, the defendant alleges in said motion, he understands to be a dying statement or declaration of the deceased, and to furnish the defendant with a copy thereof; and after due consideration, the court overrules said motion.”
It does not appear why the defendant did not attempt to introduce the declaration before he closed his evidence.
Under the circumstances, the request came too late. It does not appear that the introduction of the declaration would have been of any advantage to the defendant. It was not error to refuse to reopen the case for the purpose of permitting the declaration to be introduced.
Complaint is made of certain remarks made by the court to the jury. On the trial it became necessary to excuse one of the jurors. The court very carefully admonished the jurors concerning their duty during their separation, and, in the course of his remarks, stated:
“That some gentleman whose name I do not now remember had stated to him that one of the jurors had been seen and that there would be no verdict from this jury. Now I think that was simply a wild rumor. I sincerely hope that it is not a fact.” \
The court then instructed the jury concerning the great responsibility that rests on the shoulders of jurors, and the absolute necessity of their acting with the strictest integrity. One of the jurors then remarked:
“I think if you had been in the jury room, and seen how we were laboring consciensciously and to the best of our ability, I think you would be well satisfied in your own mind that the information given to you is absolutely false.”
To that remark the court replied:
“I don’t think there is anything to it. I think the wish was father to the thought in the breast of whoever circulated it. I don’t remember the person who made the statement; but I told my informant that I did n’t think there was anything to it at all.”
There was nothing in what the court said that was in the least degree prejudicial to the rights of the defendant, or that was in any way inconsistent with the duty of the court.
The defendant complains of the argument of counsel for the state. The argument as abstracted by both the defendant and- the state has been examined. It does not appear that there was anything improper in the argument. Everything that was said was based on the evidence introduced, and was justified by that evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
These appeals present another chapter in the “trading stamp” litigation and are a sequel to the case of The State v. Wilson, 101 Kan. 789, 168 Pac. 679, wherein the constitutional questions involved in the law relating to the use of trading stamps were considered and the law was upheld.
When the decision in The State v. Wilson was rendered the defendants in the present cases set about a revision of their methods of business in dealing with trading stamps and their use. New contracts were made between the trading-stamp companies and the merchants who distributed the stamps to their customers, and the defendants began to furnish and distribute trading stamps and coupons pursuant thereto. On the assumption that these revised modes of using the stamps did not conform to the provisions of the trading-stamp act (Laws 1917, ch. 331), these criminal cases were instituted. The Crosby case is a prosecution of a mercantile firm which distributed the stamps of the Sperry & Hutchinson (trading-stamp) Company; the second case is one against the Spepry & Hutchinson Company, which furnished the Crosby company with trading stamps; and the third case is one against another trading-stamp company, The Surety Coupon Company, which, under a somewhat different contract, furnished the stamps or coupons used and distributed by another mercantile firm, which is not before the court.
The respective informations against these defendants, in several counts, charged them with certain violations of the act,, some of which occurred before the decision in The State v. Wilson, and some with infractions of the act under the defendants’ revised mode of using the stamps. The trial court overruled the defendants’ motions to quash, so far as they were directed toward the counts covering violations of the act committed before defendants revised their mode of business, and sustained the motions to quash so far as they related to alleged offenses in the revised, mode of using the stamps. From the latter ruling the state appeals.
The informations contained copies of the contracts under which the defendants were doing business. One of the informations recited—
“That Crosby Brothers Mercantile Company, a corporation, organized and doing business under the laws of the State of Kansas at the County of Shawnee, in the State of Kansas aforesaid, and within the jurisdiction of this court on the --- day of December A. d. 1917, did then and there unlawfully use in, with and for the sale of its goods, wares and merchandise certain stamps known as S. & H. Green Trading Stamps and received by it from the Sperry & Hutchinson Company, a corporation of Boston, New Jersey, which said stamps entitled the purchaser so receiving the same with such sale of goods, wares and merchandise to procure from the said defendant company, free of charge, the sum of $2.25 in cash or merchandise of the value of $2.50, at the option of the holder thereof, for each book of 1200 stamps, said books to be redeemed in cash by said defendant company or in merchandise from their general stock at regular retail prices, at the option of the holder of such stamps in accordance with an agreement printed on the inside page of the cover of the said stamp book, as follows:
“ ‘notice.
“ ‘To the Public and to our Customers.
, “ ‘This book and the trading stamps which are issued by the undersigned are issued and received by you, and are to be redeemed as follows:
“ ‘When this book is filled by pasting therein tradin g stamps issued by the undersigned to the number of Twelve Hundred the same may be presented at our store and will be redeemed by us in merchandise out of our general stock at the regular retail price with a value of $2.50, or in cash in the sum of $2.25, at the option of the holder of this book.
“ ‘The above is the only agreement under which stamps will be issued and redeemed by us.
“ ‘Crosby Brothers Mercantile Company.’
“said stamps being furnished to said defendant company under a contract entered into between it and the Sperry & Hutchinson Company a copy of said contract being as follows:
“ ‘agreement.
“ ‘This Agreement made this 22d day of November, 1917, by and between The Sperry & Hutchinson Company, a corporation of the State of New Jersey, and The Crosby Brothers Mercantile Company of the State of Kansas.
“ ‘Witnesseth, It is mutually agreed by and between the parties hereto that the said The Sperry & Hutchinson Company is to furnish to the said The Crosby Brothers Mercantile Company, trading stamps to be issued by The Crosby Brothers Mercantile Company to its customers as a discount for the payment of any indebtedness paid within the time 'in which it allows such discounts. One of said stamps being issued for each ten cents represented in the payment of such indebtedness. The said The Crosby Brothers Mercantile Company agrees to pay to The Sperry & Hutchinson Company for such stamps the sum of $2.50 for each one thousand of said stamps.
“ ‘It is agreed that said stamps are furnished by The Sperry & Hutchinson Company to be issued by The Crosby Brothers Mercantile Company redeemable at their face value or more in cash or merchandise from the general stock of the said The Crosby Brothers Mercantile Company at regular retail prices at the option of the holder of said stamps.
“ ‘The said The Crosby Brothers Mercantile Company agrees to purchase stamps as herein contracted for in sufficient quantities from time to time to give the discount herein provided, upon the payment of any indebtedness paid within the time a discount is allowed.
“ ‘The Crosby Brothers Mercantile Company agrees to give in exchange for each filled trading stamp book containing twelve hundred (1200) stamps, consisting in whole of stamps furnished by The Sperry & Hutchinson Company merchandise, to the value of $2.50 as selected by the holder of such stamps from their general stock at the regular retail price thereof, or to give to the holder thereof the sum of $2.25 in cash, and such books so redeemed shall be endorsed showing whether they are redeemed in cash or merchandise, and with the name and address of the person presenting same.
“ ‘The Sperry & Hutchinson Company agrees to pay to The Crosby Brothers Mercantile Company the sum of $2.25 for each completely filled stamp book redeemed.
“ ‘The Crosby Brothers Mercantile Company agrees to deliver to The Sperry & Hutchinson Company for cancellation all of said stamps and stamp books redeemed as herein provided.
“ ‘It is mutually agreed -that a full settlement for all stamp books redeemed during any one month will be made not later than the 15th day of the following month.
“ ‘This contract to remain in full force and effect for the term of one year from this date.
“ ‘ijjr Witness Whereof, the parties hereto have hereunto set their hands'the day and year above written.
“ ‘The Sperry & Hutchinson Company,
“ ‘By F. W. Andress.
“ ‘The Crosby Brothers Mercantile Company.
“ ‘By W. T. Crosby, Pres.’
“without first having obtained a license from the County Clerk of Shawnee County, Kansas, as provided by Chapter 331, Session Laws of Kansas of 1917; contrary to the form of the statutes, etc.”
The trading-stamp law provides that before these stamps can be furnished or used in connection with sales of merchandise, a license, at an almost prohibitive fee, shall be procured from the co(unty clerk—
“Provided, however, that the provisions of this section shall not apply to the furnishing or issuance of any stamps, coupons, tickets, certificates, cards, or other similar devices, redeemable at their face value, in cash or merchandise from the general stock of said merchant at regular retail prices at the option of the holder thereof.” (Laws 1917, ch. 331, § 1.)
Counsel for defendants contend that the mode of doing business detailed in the contract as quoted above is saved from the general ban of the act by this proviso. But some discord between what the proviso permits and what the defendants are accused of doing, as shown by the contract, is readily noticeable. The law says the stamps which a merchant without a license may issue to his customers are to be redeemed at their, face value in cash or in merchandise, at the holder’s option, at regular retail prices. The contract mode of business pursued by the Crosby company prescribes that the stamps which that defendant issues will only be redeemed in numbers of 1,200 stamps. The proviso of the law contains no such limitation. The contract made also provides, and the Crosby company’s notice to its customers announced, that the redeemable value of the stamps is $2.50 per 1,200 in merchandise, but their cash value is only $2.25. The Crosby company also declares in its notice that only on these terms will the trading stamps issued by it be redeemed. The proviso of the statute prescribes that the stamps are to be redeemed at their face value in cash or merchandise at regular retail prices, at the folder’s.option, not at one value in merchandise and at a less value in cash.
Jt cannot be admitted that this mode of doing business is in compliance with the act and the privileges of the proviso'. It is urged that the redeemable value of less than 1,200 stamps would be too trivial to bother with; but that is only a reason for asking the legislature to change the law, and not a reason for violating it. Even that apology for breach of the law is wanting in the discrimination between the redeemable values in cash and merchandise. The Crosby company declares it will not do business in the way permitted by the statute, but will issue and redeem trading stamps in its own and a different way, or the way imposed upon it by the stamp company under the terms of the contract. In other words, this defendant’s notice to its customers simply avows that it is violating the statute. If the Crosby Brothers Mercantile Company wishes to distribute trading stamps and to redeem them according to its individual and independent notion of good business methods, that company must first procure a license from the county clerk of Shawnee county, which license will cost the sum of $6,000 per annum (sec. 2). If that company does not care to pay that large sum, annually for the privilege of handling trading stamps in its business in any way it pleases, it may refrain from using them at all, or it may, without paying such license fee and without a license, make or procure trading stamps of its own design from any printer or lithographer, and issue them to its customers on whatsoever terms it sees fit to impose- — provided that in so doing it respects the obligation imposed by the statute to redeem whatever number of stamps it does issue, in cash at the professed face value thereof or in merchandise out of its own establishment at the customer’s or holder’s option; but it may not impose restrictions as to numbers of stamps which it will redeem, nor can it prescribe a less redemptive value in cash than it allows in merchandise. Under the broad and inclusive terms of the act the Crosby company cannot engage in contractual relationship with a trading-stamp company for the'furnishing and using of trading stamps along the lines specified in the above contract, unless the Crosby company and the trading-stamp company are both prepared to pay the fee prescribed for a license so to do.
The court is compelled to hold that the several counts in the information which were quashed by the trial court sufficiently stated causes of action against the Crosby company.
It is again urged, as in the Wilson case, supra, that the statute violates the federal and state constitutions. The determination of those phases of the controversy was by no means free from difficulty, and some of the justices, including the writer, assented thereto with considerable misgiving, but the lapse of time has merely matured and confirmed our views of the correctness of the decision of the court as then announced. There may be room for fair debate as to whether the suppression of trading stamps as heretofore used, or their virtual suppression, for that is what this licensing act amounts to, was worth the attention of the legislature of a free state; but legislation may be ill-advised, puerile, or faux pas and yet not be unconstitutional, and the remedy for all such legislation must come from the legislature. The court is satisfied with the disposition of the constitutional questions as announced in The State v. Wilson and adheres to that decision. (See, also, Trading Stamp Cases, 166 Wis. 613.)
The case against the Sperry & Hutchinson Company does not present the slightest difficulty. It is charged with furnishing stamps in violation of the act, and the information details its mode of doing business. -It furnishes stamps to merchants and imposes upon those merchants, like the Crosby company, the terms upon which the- latter may use and redeem those stamps. As we have seen, those terms do not conform to the act. Moreover, the plain purpose of the statute is to forbid trading-stamp companies like defendant, except under license, to levy tribute upon the business of merchants through the artful attractions of their trading-stamp system. The Sperry & Hutchinson Company is no mere printer and lithographer of stamps to sell to whomsoever may care to buy. It is the inventor or promulgator of.a clever scheme whereby it may be worth while for a merchant to use its trading stamps and for the merchant to let it take a small toll from his business for such use.
The Sperry & Hutchinson Company’s modus operandi, as set forth in the information and conceded for the purposes of the motion to quash, is a plain, palpable and futile attempt to do by indirection what the statute plainly forbids. Its motion to quash should have been overruled in toto.
The same conclusion must be reached in the case against the third defendant, the Surety Coupon Company. It is not a mere printer or stationer engaged in vending its stamps. Slight differences there, are, indeed, between its contract with merchants and that of the Sperry & Hutchinson Company, but its mode of business is equally violative of the act. It fastens itself upon the business of Paxton & Paxton, a Topeka mercantile firm, by a contract to furnish the latter with trading stamps, and prescribes how the latter shall handle and dispose of the stamps. Indeed this defendant reserves to itself the ownership of the trading coupons furnished by it and binds its patron, Paxton & Paxton, not to use any trading coupons except its own, which probably violates the antimonopoly laws of this state, as well as the trading-stamp act, and binds Paxton & Paxton to cease to use or redeem trading coupons after the expiration.of their contract with defendant. The permissive use of coupons by a merchant redeemable in cash or merchandise, at face value, out of his own stock, which the statute permits, contains no limitation on the redemption period, and there is none, unless it is that prescribed by the code of civil procedure.
It needs no argument to show that if the use of trading stamps which the act of 1917 sought to regulate and restrict by license was an evil (and that was a legislative and not a judicial question, The State v. Wilson, supra; Rast v. Van Deman & Lewis, 240 U. S. 342), the act has failed' of its purpose if the practices of defendants as outlined in the informations are not within its scope. The court will not admit that the statute is fraught with any such weakness or futility.
Undoubtedly the legislature intended by the act to compel an emancipation of merchants from the dominion and control of the trading-stamp and coupon companies. All the informations sufficiently charged offenses under the act, and the judgment of the district court must be reversed, with instructions to set aside its ruling on the motions to quash, and for further proceedings consistent with the views herein expressed.
Reversed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal concerns a question relating to the law of garnishment. The material facts are simple. A. B. Ross gave his brother, J. G. Ross, a chattel mortgage on a mare to secure an indebtedness of $150. By permission and consent of the mortgagee, the debtor sold the mare to one F. B. Leuty upon an understanding that the purchaser was to account to J. G. Ross for the purchase money.
Before Leuty paid over the money to the mortgagee and assignee of the purchase money, A. W. Eggers obtained a judgment against A. B. Ross and garnished the money in the hands of Leuty as the property of the debtor.
The district court gave judgment for J. G. Ross.
The mare was one'of the only span of horses owned by A. B. Ross, and his wife had not signed the mortgage. (Gen. Stat. 1915, §§ 6506, 4700.) The wife, however, had another horse of her own. A. B. Ross and his wife were residents of Colorado. These facts furnish interesting points for debate in the briefs of counsel, but none of them is important here.
There is a familiar and long-established rule of law that attachments and garnishments only seize the debtor’s property; they do not affect property formerly owned by the debtor but which had been lawfully assigned or sold in good faith to others before the garnishment proceedings were effected. (Hall v. Terra Cotta Co., 97 Kan. 103, 105, 154 Pac. 210; Rich v. Roberts, 103 Kan. 116, 172 Pac. 996; Bank v. Schuetz, 103 Kan. 229, 173 Pac. 278.)
Here, A. B. Ross had assigned the proceeds of the sale of the mare to J. G. Ross, and the purchaser of the mare held that money for the latter before the garnishment proceedings were served on the purchaser. Consequently the garnishment reached nothing then belonging to the debtor, and the trial court’s judgment was correct.
Affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the value of exempt property sold on execution. The plaintiff recovered, and the defendants appeal.
The plaintiff, Saunders, and the defendant, Graff, were partners engaged in conducting a grocery and bakery under the firm name of Graff & Saunders. In August, 1915, Graff sold his interest in the business to Saunders. In 'December, 1915, Saunders sold the grocery to Graff, but retained the bakery, moved it to another location, and there pursued his trade and business as a baker. The defendant, the Central Mercantile Company, obtained a judgment against the firm of Graff & Saunders, and seized and sold on execution the oven and other implements forming the bakery outfit belonging to Saunders. Graff was the purchaser at the execution sale.
The defense to the action was that the sale, of December, 1915, was not made in compliance with the bulk-sales act. ..Graff’s testimony was to the effect that he bought back both the grocery and the bakery, and then for a consideration turned the bakery over to Saunders. Saunders’ testimony was that the negotiations produced the result stated, that is, that he turned the grocery back to Graff and kept the bakery. It must ,be assumed that the court accepted Saunders’ version of the transaction. Saunders became sole owner of the bakery in August, 1915. From that time forward until the sale on execution he owned it, and there is no dispute that the oven and other implements sold on execution were exempt, as necessary for the purpose of carrying on Saunders’ trade and business as a baker.
The bulk-sales act was not intended to modify or to curtail the benefits of the exemption law. It has been so decided in other states (McCormick v. Kistler, 175 Mich. 422, and Rich v. C. Callahan Co., 179 Ind. 509), and it must be true that the bulk-sales act was intended to operate only on property toward which creditors may look for satisfaction of their claims. While the statute is remedial, in that it is designed to frustrate fraud, and for that reason is to be liberally construed (some courts have held otherwise), there is no fraud in withholding exempt property from satisfaction of a debtor’s obligations. Creditors are not concerned with any disposition which the owner may make of it. The result is that whatever may be said of Saunders’ sale of the grocery without complying with the bulk-sales act, his right to claim as exempt the bakery outfit which he retained was not impaired.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The appellant, who prevailed in this court, directs our attention to a point urged in her brief which was not covered by our opinion. (Swader v. Flour Mills Co., ante, p. 378.) She asked-for an interpretation of the word “recover” in the text of section 5 of the compensation act, which reads—
“The workman may take proceedings against that person [the person causing the injury] to recover damages and against any person liable to pay compensation under this act for such compensation, but shall not be entitled to recover both damages and compensation.”' (Gen. Stat. 1915, § 5899.)
Appellant fears that in further proceedings in this case it may transpire that she might recover an uncollectible judgment “against the person causing the injury,” and that under our original opinion she might be put to an election between a large uncollectible judgment against such person and the reíatively small allowance made to her under the compensation act. No artificiality surrounds the word “recover” in this act. “Recover” here means “obtain,” “procure,” “get,” and the like; to get damages or compensation; not a judgment, but the benefits of a judgment; it means payment. Neither an uncollectible judgment against the wrongdoer nor an unsuccessful attempt to realize thereon would bar plaintiff’s right to compensation under the act. This must be the proper interpretation, for in making a law which it hoped to frame so simply that litigation under it would be reduced to a minimum, the legislature would hardly concern itself about how many uncollectible judgments a person might recover under the act, but it would wisely and justly provide that the injured party would only be entitled' to receive payment from the wrongdoer or from the employer, and not from both. | [
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The opinion of the court was delivered by
Burch, J.:
The appellants have filed a petition for a rehearing upon the ground that the decision rendered is contrary to the evidence and to the law as previously declared. ■ The court remains of its former opinion, and the petition is denied.
W. H. Mitchell, a defendant in the action against whom judgment was rendered, files a separate petition for a rehearing in which he claims that there are special reasons, applicable in his case, for a reversal. As no notice of appeal was ever served in behalf of this defendant, so far as the records of this court show, there is nothing before us upon which an examination could be made upon the merits of his contention. Therefore, this petition is also overruled. | [
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The opinion of the court was delivered by
Porter, J.:
In an action to foreclose two real-estate mortgages plaintiff was given judgment for part of the amount claimed and a decree of foreclosure, but claims error in the proceedings, and appeals.
During her lifetime, Amelia Staab owned two quarter- sections of farm land in Ellis county and certain town lots in Hays. On December 26, 1907, she borrowed from one Decker a thousand dollars and gave him a mortgage on one of the farms. The note and mortgage ran for five years. Amelia Staab died in 1908 and left a will giving a life estate in all her real property to her husband, Peter, with remainder over to their two sons, Jacob and Ambrose, share and share alike. The Staabs had met with financial and other difficulties; several civil judgments had been rendered against them which were liens on the real estate; a judgment had been rendered to prohibit them from selling or permitting liquor to be sold on some of the property in Hays; Peter and his son Jacob had been convicted of violating the prohibitory liquor law and were .serving,jail sentences with heavy fines against them. In these circumstances Ed F. Madden was employed to procure a loan on their real property for the purpose of paying the fines, costs, judgments against them, and debts.
A compromise was made with' the county for the payment of a portion of the fines and the release of the father and son. Madden secured the loan, which amounted to $4,050, from P. D. Brown, the three Staabs, and Mary Staab, the wife of Jacob, executing their note to Brown due in one year, and a mortgage covering all the property formerly owned by Amelia Staab, including the quarter section previously mortgaged to- Decker. The proceeds of the note was used to pay the various judgments and costs, several notes held by.banks and others, and the expenses connected with securing the loan, including a commission to Madden of $400. A small balance remaining after these disbursements was paid over to Jacob Staab, and he gave Madden a receipt in full of all matters connected with the loan. The instruments were executed November 12, 1909. The only payment on the note was $950, which was made in August of the following year. In 1912 Brown i bought the Decker note and mortgage, and this action was brought November 4, 1915, to foreclose both mortgages.
The defendants, Peter, Jacob, and Mary Staab, answered, claiming that Madden had agreed to pay the Decker mortgage out of the $4,050, and to charge a commission of $75, and had also agreed to pay the cost of procuring an abstract and the notarial fees.
Ambrose Staab answered separately, setting up substantially the same defenses, and in addition alleged that he was a minor at the time he signed the note and mortgage; that no consideration passed from Brown to him, and that his signature was for the purpose of surety only; that he had never affirmed his action executing the note and mortgage, and then elected to dis-affirm. Plaintiff replied by a general denial. The court called a jury to determine the facts.
At the trial Ambrose Staab was asked if he had a conversation with Madden after the note was given. His answer was:
“Well, when this hard winter came up, I think it was 1911 or 1912, or around there some time me and my father came in to borrow some money and went up to the bank and Bill says, ‘All right, I will let you have the money but I want you to sign this $4,050 mortgage and note, now that you are 21 years old.’ I says, ‘I won’t sign it.’ He says, ‘can’t give you the money.’ ”
The jury made findings that Ambrose Staab was twenty years and seven days old at the time he signed the note and mortgage; that he received a consideration to the extent of $651.86; that he had never ratified the transaction after he became of age; and that he had disaffirmed it by refusing to renew the note in the fall of 1911. Their finding is that the1 payment of the Decker note and mortgage formed no part of the consideration for the execution of the mortgage to plaintiff; that neither Ambrose nor Peter, his father, authorized Jacob to make an agreement with Madden to pay him a commission of $400, nor to pay the expense of examining the title and the notary’s fees. The agreement to pay Madden the commission of 10 percent was in writing and signed by Jacob alone, who receipted for the small balance remaining after the other disbursements of the proceeds.
The court made findings of its own, to the effect that Ambrose Staab had signed the note and mortgage before he'was of age, and disaffirmed his action within a reasonable time after he had attained his majority. The plaintiff was given a joint judgment against Peter and Jacob Staab for $3,581.12, and against Peter individually for $2,502.18, the two judgments to be a first-lien upon their interests in the lands; judgment for $1,173.49 of the aggregate amount was found to be due plaintiff from Ambrose Staab, which was declared a first lien upon his interest in the real estate. Instead of holding the Decker mortgage to be a first lien on the property described therein, it was lumped together with the subsequent mortgage which included other lands. The court ordered the interest of Ambrose sold separately to satisfy the separate judgment against him, the interest of Jacob sold separately to satisfy the judgment against him, and a separate sale of Peter’s interest sold to satisfy the entire judgment. Aside' from the principal errors complained of, it is claimed the court erred in making these orders respecting the sale; that the uncertainty as to the extent of title which a purchaser would obtain will deter bidders. It is further contended that the amount due on the Decker mortgage should have been declared a first lien on the land described therein, and that the order should have directed the land to be first sold to satisfy that lien.
In our view, the whole case turns upon the defense raised by Ambrose Staab. The court proceeded upon the theory that the evidence justified a finding that he had disaffirmed the contract after he came of age. If the trial court erred in this re'spect, the complications, and difficulties presented by the order directing the manner of sale disappear.
Our statute with relation to the. contract of an infant is different from those in many states. It declares that—
“A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining’ within his control at any time after his attaining his majority.” (Gen. Stat. 1915, § 6358.)
The legislature saw fit to declare that a minor shall be bound by all his contracts, whether for necessaries or otherwise, unless, within a reasonable time after he arrives at majority, he shall disaffirm them, and that where there still remains in his control after he has reached his majority, money or property paid to him by virtue of his contract, he must restore that to the other party. The evidence and the findings show that Ambrose Staab received a valuable consideration for executing the note and mortgage, and it appears also from the evidence that part of the proceeds of the loan went to pay liens against his 'interest in the real estate. The statute recognizes the common-law rule that where the money or property paid to him under the contract has been dissipated, restoration is not required of him. (Eureka Company v. Edwards, 71 Ala. 248; Reynolds v. McCurry et al., 100 Ill. 356.) The law is well settled, however, that if liens or charges against the property belonging to him have been satisfied by the money or property received, and he retains the property, he is considered as having within his control the money or property that went to satisfy the liens. Whether under' our statute a restoration of the consideration, or an offer to restore it, is a condition precedent to a disaffirmance by an infant of his contract, need not be determined. On the general question, see note to the case of Craig v. Van Bebber, 18 Am. St. Rep. 588, 594. The statute declares that he is bound unless he disaffirm within a reasonable time after he attains majority. Much learning has been expended by the courts in determining what, in a given case, will constitute a reasonable time in which to disaffirm. It is said to depend generally upon the circumstances of each case, and sometimes becomes a mixed question of fact and law and sometimes a mere question of law. It has been held that the question of what constitutes a reasonable time is a question of fact for the determination of the court or jury, dependent upon the nature of the action. (Wiley v. Wilson, 77 Ind. 596, and Scott v. Buchanan et al., 11 Humph. [30 Tenn.] 468.) The general rule is, that a reasonable time does not in any case extend beyond the period of the statute of limitations (Nathans v. Arkwright, 66 Ga. 179; 22 Cyc. 553), and the weight of authority seems to be that it is always safe íor a court of equity to follow by analogy the statute of limitations.
The court was in error in holding that the act of Ambrose Staab in refusing to re-sign the note after he had arrived at majority constituted a disaffirmance of his contract. While it is said not to be necessary that the disaffirmance shall be by an act or instrument of equal solemnity with the one sought to be avoided, or even that the disaffirmance be in writing, “it is for an infant desiring to avoid his deed, mortgage, etc., to signify his! desire, not only by refraining from any act of affirmance, but by performing some positive act of disaffirmance, which is of such a character as to clearly show his intention not to be bound by his act.” (22 Cyc. 554.)
His mere refusal to comply with a request that he sign the note and mortgage after reaching his majority, was not a disaffirmance of the original contract, which the statute declares was already binding upon him; the statute says nothing about a reaffirmance of the contract. He was already bound by it unless he announced his election not to be bound. Of course, after reaching his majority, he could, without any statutory provision, have made a new contract by reexecuting the instruments; but merely refusing a request to do an unnecessary thing in no wise impeached the validity of the original transaction.
It is well settled that in determining what constitutes a reasonable time in which a person who has executed an instrument during infancy shall disaffirm it much depends upon the particular circumstances of each case, but the authorities agree that the statute of limitations furnishes a safe rule in all cases, although under the circumstances of a. particular case it may be that the right should be exercised within a shorter period.
After the disability was removed, Ambrose Staab had one year in which to bring an action to set aside the instruments. (Civ. Code, § 18, Gen. Stat. 1915, § 6908.) He attained his majority-on November 5, 1910. His first act toward disaffirming the contract was when he filed his answer on February 1, 1916. He did not elect to disaffirm until more than fivp years after a cause of action accrued to him, and this cannot be held a reasonable time.
The evidence shows without dispute that the proceeds of the loan was paid out on claims, some of which were against the father and Jacob, some against all three of the Staabs,' and others against Ambrose alone. The written agreement with Madden was signed by Jacob Staab alone. It read:
“Hays City, Kansas, Nov. 12, 1909. We hereby authorize W. J. Madden to procure a loan for us, suéicient to pay all judgments against us and all expenses and to pay to Ellis County and State of Kansas judgments and agree to pay W. J. Madden a commission of 10 per cent for procuring the said loan for us and authorize the said W. J. Madden and request him to pay the said judgments for us.”
The finding that the father and Ambrose had never authorized Jacob to sign the agreement to pay the commission for procuring the loan established no defense; it was not necessary for them to sign it. If one agreed to pay the commission and paid it, the others must be held to have ratified his action just as they ratified the other payments. If either-of the three was not satisfied with the disbuisements made by Madden, he should have complained, at least in August, 1910, when a payment of $950 was made on the note.. The failure of all three to object to the manner in which the consideration was paid, until more than six years after the transaction, must be held to constitute a ratification and consent to the payments.
We think the various errors in the judgment and the orders of sale crept into the case because of the mistaken theory that Ambrose was released from full liability. Being equally liable on the note and owning the lands as tenants in common, no reason is seen why .the three might not pledge the estate as an entirety by their joint mortgage. (27 Cyc. 1044, and see, also, Hubbard v. Ogden, 22 Kan. 363.) Each received individually part of the consideration, and each became surety for the others, and it is clear that , the court should have ordered the real estate sold in its entirety. It is clear, too, that the mortgage executed by Amelia Staab in her lifetime is a first lien on the land described in the mortgage, and that land should have been ordered sold first to satisfy the $1,000 mortgage and interest. The plaintiff is entitled, of 'course, to recover taxes paid by- him.
The judgment will be reversed and the cause remanded with directions to enter judgment for the plaintiff for the full amount of the notes with interest, less the partial payment, for foreclosure of the mortgages and for orders of sale as herein suggested. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover sums of money paid for the account of the company at fault, and damages, consequent upon a collision between a passenger train of the plaintiff and a freight train of the defendant. The plaintiff recovered, and the defendant appeals.
The collision occurred at the crossing of the two railroads at the station of Moody, which, with the surroundings, is shown on the appended sketch. The passenger train approached Moody from the northwest. The freight train came from the south, and farther away from the southwest. After the two trains came from behind the hills indicated on the sketch they were visible to each other, and trainmen of each saw the other. The passenger train proceeded to the crossing stop sign, whistled for the crossing, and then proceeded toward the crossing. The crossing is gated, the normal position of the gate being across the plaintiff’s track. Before the passenger train reached the crossing the gate was turned across the defendant’s track. The passenger train consisted of an engine, a baggage car, a combination mail and passenger coach, and a passenger coach. The usual stopping place is with the mail car on the crossing. When about to stop the engineer of the passenger train perceived the freight train would not be stopped, and made an effort to clear the crossing. The engine of the freight train struck the passenger coach with tremendous force, inflicting much injury to persons and property. After negotiating with the defendant concerning the matter, the plaintiff settled, for the account of the company at fault, death and personal-injury" claims, physicians’ and surgeons’ bills, bills for nursing and for board of the injured, and paid the expenses incident to such settlements. The plaintiff also paid out sums of money to replace and repair equipment and other property destroyed and injured.
The gate was erected under a contract, the material portions of which read as follows:
“The object and purpose of said gate and signal lamp at Moody is to block the track of the party of the first part [M. K. Si T.] and to allow the parties of the second part [Mo. Pac.] to run their trains over said crossing without stopping (except when such gate shall be turned against them, in which case they shall respect the signals and stop their trains) but in no event shall any train be run over said crossing at a speed in excess of fifteen miles per hour. The normal position of said gate shall be across and at right angles to the track of the party of the first part, and the trains of the party of the first part shall be brought to a full stop before passing over said crossing, and the employees of said first party shall open the gate before and close the same after the passing of its trains over said crossing.”
In this instance the gate was opened in front of the passenger train, and closed in front of the freight train, by Walter Giesy, a hack driver, who acted under the direction of the station agent.
The plaintiff charged the defendant with negligence in respect to the manner in which the freight train was operated, and in other respects not now material. The defendant denied negligence on its part, and charged the plaintiff with negligence in four particulars: first, the passenger train did not come to a full stop before proceeding over the crossing; second, the gate was not operated by one of the plaintiff’s agents, servants, or employees; third, the person who did open the gate did not look or listen for a train on the defendant’s road; fourth, the plaintiff’s engineer proceeded over the crossing without looking or listening for a train on the defendant’s road.
The defendant’s account of the collision,' indicated id its answer and detailed in the testimony of its engineer and other witnesses, was this: At the top of the hill southwest of Moody the engineer tested the air, and found the braking appliances of his train in good condition. When about 3,000 feet from the crossing he made a ten-pound air reduction, and held it until he got off the curve and on the straight and level track. This reduced the speed of the train from thirty or thirty-five miles per hour to twenty or twenty-five miles per hour. About 1,500 or 1,600 feet from the crossing he made a second reduction, making twenty pounds in all, which reduced the speed of the train so that when it was within 600 feet of the crossing it was traveling about twelve or fifteen miles per hour. By making a further reduction he could have stopped the train before reaching the crossing. The engineer was on the right side of his engine, and before reaching the straight track was precluded from a view of the crossing. The fireman, however, looked toward the' crossing and advised the engineer the track was clear. When the straight track was reached the engineer saw the track was clear. When about 600 feet from the crossing, the track still being clear, he gave two blasts of the whistle —“whistled off” — put his valve at full release, and let loose of the brakes. When he released the air he knew he could not effectively use the air brakes again before reaching the crossing. When he was at the north end of bridge No. 114 (335 feet from the crossing) the gate was thrown in front of him, and at the same time he saw the passenger train come on the crossing. At practically the same time the front brakeman, who was riding on the engine pilot, gave him the stop signal. He immediately made an emergency application of the air, reversed the engine, and opened the sanders. He had no time to do more, and jumped from the engine, as did the fireman and head brakeman.
If the testimony for the defendant had been believed, it would have authorized a verdict for the defendant. It is very clear, however, that only a portion of it was credited by the jury. The jury doubtless believed the engineer’s testimony that when the freight train was 600 feet from the crossing, by a further' reduction of air he could have stopped the train before it reached the crossing. The jury found that when he was from 600 to 800 feet from the crossing he could have, with the, appliances at hand, stopped before he reached the crossing, and that after the gate was turned he could have stopped before reaching the crossing. .'The jury doubtless believed that the engineer released his brakes near the place where he said he did, about 600 feet from the crossing, and that by releasing the brakes he knew he lost, for the time, effective air control of his train. The jury doubtless believed the engineer of the freight train saw the gate turned against him, and saw the passenger train go immediately on the crossing. The jury found, however, that the engine of the freight train was from 800 to 1,000 feet from the crossing when the movement of turning the gate across the freight train’s track was finished. The jury found the engine of the passenger train was within from twenty to thirty feet of the crossing when the gate was turned, and the passenger train was in full view when the engineer of the freight train released his brakes. The jury found the freight train was moving at the rate of from fifteen to eighteen miles per hour when the gate was turned and when Ijhe crossing was reached, found the air was not applied- in emergency, and found the reverse lever and sand were not used.
The jury found specially that the passenger train was brought to a full stop, or approximately so, before going on the crossing. The evidence was that this stop was made at the usual place, in the vicinity of the stop board, 176 feet from the crossing. The jury found that as the passenger train approached the crossing from a point-175 feet distant it was at all times under control, that when within 100 feet of the crossing it was moving at the rate of from two to four miles per hour, and could have been stopped within ten feet, that the gate was turned when the engine was within twenty to thirty feet of the crossing, and that the engine was then moving at the rate of four miles per hour. The jury further found that the engineer of the passenger train went on the crossing believing the freight train employees would observe and obey the gate' signal to stop; that the engineer of the passenger train was prevented from knowing the freight train would not or could not stop, because no warning was given; and that after discovering the freight train was beyond control, he made every possible effort to get the passenger train off the crossing. The. findings of fact are appended to this opinion.
As indicated by its answer, the defendant relied on' breaches of the gate contract as a defense to the action. Some observations respecting the contract will greatly simplify the discussion by rendering unnecessary separate consideration of a number of assignments of error.
Broadly speaking, the contract embraced three subjects: the function of the gate, the operation of trains at the crossing, and the operation of the gate itself. The gate was a signal. It had two functions: first, and chiefly, to block the plaintiff’s track; second, to block .the defendant’s track. Any train approaching on the plaintiff’s track would find the gate closed against it. Normally, a train approaching on the defendant’s track would find the track clear, but the gate might be closed against it. A train approaching on the plaintiff’s track must be brought to a full stop before going on the crossing. A train approaching on the defendant’s track, finding the gate open, may proceed without stopping; finding the gate closed, it must respect the signal, and stop. No train should go; over the crossing at a speed in excess of fifteen miles per hour. Since the gate is normally open to the defendant’s trains, and normally closed to the plaintiff’s trains, the plaintiff operates it, opening and closing it.
The situation which gives rise to this controversy is not covered by the contract. The defendant has no contract for a clear crossing at all times. The contract provides that when the gate is turned against the defendant’s trains they must respect the signal and stop. There is no rule, however, stated in terms or derivable by implication from terms' stated, by which to determine when the gate may be opened to allow one of the plaintiff’s trains to pass in front of one of the defendant’s trains. How shall the matter be determined? The public is interested in two respects, convenience and safety. Each company is a common carrier, serving the public. It is important that traffic be not unnecessarily and unreasonably impeded, and it is important that the legal duty to use due care for the protection of persons and property be observed. If one of' the plaintiff’s passenger trains should arrive at the gate when one of the defendant’s freight trains is just coming out of the hills southwest of the station, the passenger train ought to open the gate and proceed to dispatch its business at the station. This principle ought to govern so long as the gate may safely be closed against the freight train. If the two trains approach neár the same time, the defendant has the right of way. But if the plaintiff’s train arrive so far ahead of the other that the other may safely be signalled, by means of the gate, to stop, the other must stop if the signal be given. Because the crossing is a gated crossing at a station, the defendant’s trains approach subject to the contingency that the gate may be rightfully closed against them, and they must be operated accordingly.
The contract was made just before section 8413 of the General Statutes of 1915, relating to the erection of works or fixtures rendering it safe for engines and trains to pass over grade crossings without stopping, became effective. The implication from that statute is that the defendant is obliged to stop its trains for the crossing, even when the gate is in their favor. However that may be, the gate may be turned against them when safety will permit.
The breach of contract first pleaded as a defense was that the passenger train did not come to a full stop. The finding of the jury was to the contrary, the answer to the question whether or not the train came to a full stop being, “Yes, approximately so.” (Finding 11, first series.) The argument is made that if the passenger train had come to a full stop, the freight train would have had time to approach so near to the crossing that the gate could not have been safely turned against it. There was abundant testimony that the train actually came to a dead stop. Other testimony was that if all motion did not entirely cease, it would be necessary to observe the wheels very closely to detect the fact. The engineer said he thought he came to a dead stop — if not a dead stop, you would call it a stop, anyway, and he thought it was a dead stop. The jury evidently based its finding on this testimony, and it was clear that so far as practical' consequences were concerned the equivalent of a full stop was made.
The next breach of the contract pleaded in defense was that the gate was not opened by a proper person. The term used in the contract to designate the persons to operate the gate was “employees.” The answer alleged the contract' provided that the plaintiff’s servants, agents and employees were to open and close the gate, and that the plaintiff failed to have its servants, agents, and employees open the gate. More specifically it was alleged that the plaintiff’s servants, agents, and employees failed to operate the gate as provided for in the contract, by permitting other persons who were not in the employ of the plaintiff to operate the gate. On the face of the contract the word “employees” was used, not to designate a particular class of employees, but to fix the burden and responsibility of opening and closing the gate on the plaintiff. When the answer was drawn the defendant understood the contract to distinguish, not between classes of employees, but between representatives of the plaintiff and outsiders. Under the stress of the trial the apparent meaning of the contract and the interpretation of it recognized by the answer were both abandoned, and a third meaning was proposed. The word “employees” became a “technical” term in “railroad circles,” and in the contract meant either trainmen or a trained signal man. Evidence was introduced in support of this highly specialized signification, and the evidence, was extended to show the duty of a signal man. Some evidence of the latter kind was excluded, but the defendant’s general superintendent told the jury what the duty of a signal man is. He said the signal should not be touched unless sufficient distance be allowed for timely warning, At first he said that if both trains were in sight, the signal should not be touched at all. Applying his rule, however, he said that if the plaintiff’s train- were at the proper place, about 200 feet from the crossing, and the defendant’s train were 4,200 feet away, the gate might be turned, but not if the defendant’s train were only 1,000 feet away.
In further support of the defendant’s interpretation of the contract, the defendant introduced in evidence a rule found in the plaintiff’s time card requiring trainmen to open gates blocking the plaintiff’s line. The proof was, however, that this rule was dormant, so far as it affected the Moody crossing, and that the agent at Moody was authorized to operate the gate there. The plaintiff ,had the right, of course, to show abrogation of one of its own rules.
It will be observed that the governing principle relating to closing the gate in front of one of the defendant’s trains, stated by its general superintendent, that sufficient distance should be allowed for timely warning, is essentially the same as the governing principle relating to the same matter stated above. The witness derived his rule from the duties of a signal man. The court derived its rule from the legal duty to use due care.
In the brief of the defendant it is said:
“The object and purpose of the gate, at Moody was to permit the appellant to run its trains over the crossing without stopping, unless the gate or signal was against it. Of course, this contract did not contemplate that the gate or signal should be turned against the appellant’s trains when they were in such close proximity as to require extreme measures to be resorted to, to bring its train to a stop before reaching the crossing; the only sane construction that could be placed upon that part of the contract is that the gate or signal- should only be turned as against the appellant’s train when it was a sufficient distance from the crossing so that it could be stopped by the exercise of reasonable and ordinary care on the part of those in charge of the same.”
The governing principle here stated is essentially the same as that announced by-the court. The defendant’s counsel derive their rule from the contract. The court'holds the contract is silent on the subject, and derives its rule from the legal duty to use due care.
From the foregoing it is clear the result reached by the defendant’s general superintendent, by the defendant’s counsel, and by the court, is substantially the same, and, that being true, it is not of the slightest consequence what employee of the plaintiff operated the gate, provided sufficient distance were allowed to give timely warning so that the trainmen could stop the freight train by the exercise of reasonable and ordinary care. The plaintiff had the right to give the signal and stop the freight train, under the conditions stated. It was of no consequence to the engineer of the freight train whether the person who turned the gate on behalf of the plaintiff had just been graduated from a school for signal men, or had just come in from the cornfield. If the conditions stated were met, it was the duty of the engineer to recognize the signal and stop, no matter who acted for the plaintiff. Failing to do so, responsibility for the consequences rested on him. What are the facts ?
The jury found the freight train was moving at the rate of from fifteen to eighteen miles per hour when the gate was turned. The plaintiff’s engineer testified that in railroading the most important rule is that in case of doubt you must take the safe side, and that he, and any one, would “take the chances” of going on the crossing when the freight train was 800 or 900 feet away and going at the rate of twenty miles per hour. Highly qualified expert witnesses for the defendant, after having been given all the data necessary to an opinion, testified that the freight train could have been stopped by service application of the air in 950 feet when going twenty miles per hour, and in 600 feet when going fifteen miles per hour. The defendant’s engineer testified to reducing speed by service applications so that when he was within 600 feet of the crossing he was running at the rate of from twelve to fifteen miles per hour. He then testified that by further reduction he could have stopped before reaching the crossing. On this testimony the jury found specially that the freight train could have been stopped before reaching the crossing after the gate was turned, and could have been stopped before reaching the crossing if the gate had been turned when the engine was from 600 to 800 feet from the crossing. The movement of setting the gate against the freight train was completed when the engine was from 800 to 1,000 feet from the crossing. The result is, the findings of the jury, supported by the defendant’s own testimony, show that the gate was properly turned against the freight train, on the defendant’s own theory of the case. Not desiring to place the defendant in the attitude of having made concessions, either of law or fact, the court holds that the findings of the jury show the gate was properly turned against the freight train under the principles of law governing the case.
In the course of the trial the plaintiff introduced in evidence a rule promulgated by the defendant for the guidance of its employees, which reads as follows:
“Q-22. All trains must approach drawbridges and railroad crossings at grade under full control. ... At crossings gated against foreign roads, trains may pr-oceed at reduced speed, without stopping, when line is clear.”
The defendant introduced in evidence a rule common to both companies, which reads as follows:
‘’‘98. Trains must approach the end of double track, junctions, railroad crossings at grade, and drawbridges, prepared to stop, unless the switches and signals are right and the track is clear.”
The defendant undertook to mitigate the.apparent restrictive quality of its rule Q-22, and to piece out its contract and claimed right to run the Moody crossing, by offering testimony that the term “full control” has a technical meaning as applied to the operation of railroad trains approaching a crossing gated against a foreign line. Several different statements of this technical meaning were offered. The one chosen by the defendant as its favorite is this: Some of the engine crew must maintain a sharp lookout ahead, and the train must be able to stop within the distance the track is seen to be clear and the line of rails unbroken. In this instance the crossing came within the engineer’s vision when he was 1,600 feet or more from it. Applying the rule, if, in case of need, he could stop within that distance, his train -would be under full control, and the track having been seen to be clear and the line of rails unbroken for that distance, the crossing would not be regarded as an obstruction. The defendant’s general superintendent desired to elucidate the subject as follows:
“Trains must be operated, at a point where the signals come within the range of vision of the engineer, at a speed which would enable those in charge of said train to bring it to a stop within a safe distance from said crossing, in the event the gate and signal were found set against-said train.”
In short, the claim was that if an engineer can see a clear crossing a mile away, and could stop before reaching the crossing, his train is “under full control,” and as one of the defendant’s affidavits said, he then releases his brakes, and may go over the crossing at not to exceed the rate permissible at that crossing. The “contract rate,” it will be recalled, was fifteen miles per hour.
The court declined to receive some of the evidence tendered, and gave the following instruction relating to the proper method of approaching a crossing of the kind in controversy:
“It is the duty of those in charge of a train approaching such a crossing as the one in question of another line of railway to approach such crossing with train under proper control the entire distance to such crossing. By proper control is meant under such control that the train can be brought to a stop promptly if need arises, and this is the law regardless of special rules or instructions upon the subject, and a failure to maintain such control is negligence.”
On the face of it rule Q-22 is a rule of safety, applicable when and where there is a likelihood of danger. It covers two subjects: first, approach to crossings at grade, and, second, the movement of trains over gated crossings when the crossing has been reached. Approach means to come near to, and does not relate to the operation of trains anywhere else than where danger is to be apprehended. Applied to the freight train in controversy, which, under the circumstances, was obliged to anticipate obstruction of the track by the gate when only 800 feet’away, the proposed meaning would determine the question of full control 1,600 feet or more away. On its face, the first portion of the rule is concomitant with rule 98, which means that trains must approach grade crossings prepared to stop, /and not proceed unless signals are seen to be right and the track clear.- No “technical” meaning of “prepared to stop” was hazarded.
Rules of the kind under consideration are not rules of law. They are merely limitations placed by the employer on the conduct of employees. In relation to third persons they are merely evidence of what the employer considers proper con-duct. They do not establish the legal measure of duty to third persons, which may be more or less than the rule prescribes. If a rule be reasonable, a court may declare violation of it to constitute negligence.
Regarding rule Q-22, as a creation of the defendant, having a cryptic meaning concealed, by a few common English words simply and grammatically arranged and understood only by the. initiated, the court might have permitted the defendant to show what it meant. Ordinarily, rules of this kind, containing no term the meaning of which is not perfectly clear, are to be interpreted by the court. Sometimes genuinely technical expressions are used, and sometimes the practical application of a rule to a particular state of facts may not be clear. In such cases evidence of how those governed by the rule un derstand it may be helpful. The general principle relating to the reception of such evidence is stated by Wigmore as follows:
“Expert interpretation of words or phrases. Here it is obvious that the interpretation of the meaning of the document in respect to ordinary words, being a part of the .function of the court . . ., is not for a witness to speak to. But so far as the words are technical, and the witness speaks to technical usage or meaning, there is no prohibition; the court must determine anew in each instance whether it needs any testimonial aid to interpret the word or phrase in dispute.” (3 Wigmore on Evidence, § 1955, p. 2601.) ,
In this instance the real purpose of the evidence offered was to establish a general standard of right and duty. In the light of the facts found, the meaning contended for would make the rule void, or at least wholly irrelevant, because it ignored the obligation resting on the engineer of the freight train to anticipate, under the circumstances, a rightful change of the position of the signal within half the distance he could see the crossing. Consequently prejudicial error was not committed in rejecting the evidence.
As a matter of fact, the defendant did get its interpretation of the rule quite clearly before the Jury, but the court saw fit to cover the legal duty involved by the instruction which has been quoted. The court based its instruction on the opinion of the United States circuit court of appeals for this circuit, in the case of Kansas City, Ft. S. & M. R. Co. v. Stoner, 51 Fed. 649, where it was said:
“Aside from the provisions of any specific rulel upon the subject, the law requires of parties charged with the control and management of trains moving upon intersecting lines of railway that as they approach a crossing they must exercise, due care to secure the safe passage of the train over the same, and in this respect they owe this duty not only to those whose persons or property may be upon the train controlled by them, but also to those who may be upon the train of the other intersecting line. In the performance of this duty it is incumbent upon the parties in control of the train that they shall exercise a proper lookout for the approach of another train, and they must also have their own train under proper control, so that if need arises, it can be promptly stopped.” (p. 652.)
Under control, under full control, and under proper control, all come to the same thing in application, and are all relative and not absolute'terms. A train running free at its highest rate of speed may be under full control. Running in a heavy fog, the engineer of a train should be able to stop it within the distance he can see ahead. Under a great many circumstances it is sufficient to adjust control to the distance the engineer can see along the track. The fact that under control and under full control are not absolute but are relative terms accounts for the different meanings which railroad men give them when they attempt to express themselves. It so happened that early in the trial the engineer of the passenger train was asked to give his judgment as to when a train is under control. He said, “When a man can stop it in a short distance.” In the case of Neary et al. v. Northern Pac. Ry. Co. et al., 37 Mont. 461, 19 L. R. A., n. s., 446, a rule requiring trains to approach grade grossings prepared to stop, and to approach and pass through yards under full control, was under consideration, and the court said:
“The words ‘under full control,’ as used in this rule, are understood by railroad men to mean ‘ready to stop at any moment; there is danger ahead.’ ” (p. 471.)
In this instance the court was concerned with the legal duty to be fulfilled at a gated crossing, the gate of which might under certain circumstances', be properly turned against a train normally having a clear track. The court said that trains should approach that crossing under “proper control,” and that proper control meant such control that the approaching train could be brought to a stop promptly should need arise. Promptly is the adverbial form of the word prompt, which means ready and quick to act as occasion demands (Webster’s New International Dictionary). One of the occasions affecting the freight train in this case was that the gate might rightfully be turned against it. Therefore, as applied to the facts of this case, the instruction was correct.
It may be assumed that in answering special questions employing the words “full control” the jury understood the words to refer to the proper kind of control described by the court. That meaning is important, however,, in but three special findings, all in the second series — the first, the first part of the third, and the fourth. Those findings may be eliminated from consideration without affecting the result, and the instruction defining proper control may be eliminated without affecting the result. Valid findings unaffected by the instruc tions clearly establish the situation confronting the engineers of both trains, and the manner in which they dealt with that situation. This court is able to apply to the findings the proper rule of law. For the same reason, various assignments of error relating to expert testimony and instructions regarding the duty of an engineer at a gated crossing do not require individual discussion or mention.
The defense that the person who opened the gate was riot an employee of the plaintiff, and did not exercise due care to ascertain if a train were approaching on the defendant’s track, needs little further discussion. The agent at Moody was a woman. There was evidence that she was in the habit of asking some one to turn the gate. Who performed the physical act of manipulating the structure for her was of course wholly immaterial. In this instance the evidence was that the agent was on the platform when the decision to turn the gate was made. The testimony, including that of the man who turned the gate, was that the agent authorized the signal, except the testimony of a witness for the defendant, who was discredited by an express finding of the jury. That the signal was rightfully set against the freight train was determined by special findings already considered.
Little need be said with reference to the defense that the plaintiff’s engineer did not use due care to ascertain if a train were.approaching on the defendant’s track. As stated before, each train was visible to employees of the other after they came from behind the hills on opposite sides of the station. The special findings were to the effect that after the passenger train came in sight of it, the engineer saw the freight train; that from a point 1,000 feet from the crossing up to the crossing the engineer’s view of the freight train was unobstructed ; and that within that distance he looked for the freight train. The testimony of the engineer of the passenger train was not very clear with respect to his observation of the freight train. The jury were authorized to infer, however, that while he did not look at or watch the freight train in the sense that by special act he gave it monopoly of his eyes, he was visually cognizant of the movement of the freight train. He testified that after stopping for the crossing he looked, and that the gate was thrown against the freight train when it was more than 800 feet away. The jury found specially that he went on the crossing in the full belief that the freight train would observe and obey the signal to stop displayed by the gate.
The petition pleaded facts showing that the engineer of the freight train was guilty of reckless and wanton disregard of the safety of the passenger train, its passengers, and crew. The jury were not instructed with reference to liability of the defendant for such conduct, notwithstanding contributory negligence on the part of the plaintiff. The findings of fact, however, establish the allegations of the petition. If. it were necessary, this court could apply the law, disregard the subject of contributory negligence on the part of the plaintiff, and direct judgment for the plaintiff.
The trial was conducted by able attorneys, skilled in the art of examining and cross-examining witnesses, and skilled in the trial of train-accident cases. Witnesses expressed themselves, not merely in different but in discordant ways, concerning the same subject. In some instances, what the witness really intended to say was left uncertain. Contradictory testimony was given respecting most of the material facts. Accepting, as this court must, the evidence most favorable to the plaintiff, and the inferences from the evidence most favorable to the plaintiff, the findings of fact were sustained by sufficient evidence.
The foregoing covers everything' essential to the fixing of liability for the i collision on the defendant. Nothing else in the case requires extended discussion. The duty of the plaintiff to exercise extraordinary care toward its passengers was not owed to the defendant, and the principles governing the liability of a carrier to its passengers do not apply to the accountability of the defendant to the plaintiff. The letters and telegrams passing between the officials of the two companies authorized the plaintiff to settle personal-injury claims for the company at fault, and the law implied a promise to reimburse the plaintiff if the defendant were liable. Physicians’ and surgeons’ bills were incidental to the personal-injury claims of passengers. As soon as the personal-injury claims were settled, the duty to reimburse the plaintiff arose, and interest on the amount was properly allowed.
The judgment of the district court is affirmed.
FINDINGS OF FACT.
FIRST SERIES.
“Q-l. After said passenger train which was approaching Moody crossing had reached a point just past the hill, which was approximately 2,200 feet' northwest of said crossing, did the engineer on said passenger train see the freight train of defendant approaching said crossing from the southwest? A. Yes.
“Q-2. Did the engineer on said passenger train again look for said freight train at any time after he had reached a point within 1,000 feet of said crossing and before his said engine went onto said crossing? A. Yes.
“Q-3. If you find that the engineer of the passenger train either did or did not look (at any time after he had reached a point within 1,000 feet of the crossing and before his engine went onto said crossing) for the approaching freight train, state what there was, if anything, to have prevented him from seeing said approaching freight train at any point within said distance. A. Nothing.
“Q-4. What distance was the engine of the passenger train from the crossing at the time that Walter Geisy, the hackman, had finished turn- ’ ing the gate against the defendant’s freight train? A. '20 to 30 ft.
“Q-5. What distance was the engine of the defendant’s freight train from the railroad crossing when Walter Geisy, the hackman, had finished turning the gate from its’ normal position against the plaintiff across the track of the defendant company? A. 800 to 1,000 ft.
“Q-6. When the engine of the passenger train was within a distance of 100 feet from said crossing, at what rate of speed was it moving? A. 2 to 4 miles per hour.
“Q-7. At the rate of speed that you find said passenger train to be moving, in your answer to question No. 6, in what distance could it have been stopped by applying the air brakes in emergency? A. 10 feet.
“Q-8. At what rate of speed was plaintiff’s passenger train moving at the time said gate was turned from its normal position against defendant’s train across the track of the defendant? A. 4 miles per hour.
“Q-9. At what rate of speed was defendant’s freight train moving at the time said gate was turned from its normal position against it and across defendant’s track? A. 15 to 18 miles per hour.
“Q-10. Was Walter Geisy, ,the hackman, informed, before turning the gate against the defendant’s freight train, that by so doing in all probability he would cause a wreck? A. No.
“Q-ll. Was the passenger train of the plaintiff brought to a full stop prior to going over said crossing on October 13, 1909? A. Yes, approximately so.
“Q-12. After the gate had been turned from its normal position against the M. K. T. train tó a position against the approaching freight train of the Misspuri Pacific Railway Company, was there anything to have prevented those jn- charge of the plaintiff’s engine from discovering said approaching train, and knowing that it either was,not going to stop before crossing over said crossing, or could not stop before doing so? A. Yes, no warning.
“Q-13. After the crossing came within the range of vision of the engineer on defendant’s freight train, could he, with the appliances at hand, have brought his train to a stop before reaching the crossing if the gate at any time had been turned against said freight train when the engine was within 800 to 600 feet of the crossing? A. Yes.
“Q-14. After the gate had been turned from its normal position to a position across the defendant’s track, could the freight train have been stopped before reaching the crossing? A. Yes.
“Q-15. At what rate of speed was the defendant’s freight train moving when it reached said crossing? A. 15 to 18 miles.”
SECOND SERIES.
“1. Did the Missouri Pacific employees on train No. 192 have their train under full control at any -time after the engineer released his brakes at a point 600 feet or more before he arrived at the crossing at Moody station? A. No.
“2. From the time the Missouri Pacific train came out of the cut 4,200 feet from the crossing until it arrived at the crossing, did the employees on said train have a clear and unobstructed view, had they looked, of the M. K. & T. train, while it moved from a point near mile post 56 to the crossing? A. Yes.
“3. Did the engineer of the M. K. & T. train go upon the crossing in the full belief and assumption that the employees of the Missouri Pacific train would approach with their train under full control and would observe and obey the signal displayed by the gate to stop? A. Yes.
“4. C'ould the Missouri Pacific employees on train No. 192 have stopped their train in time to have prevented the collision after they saw plaintiff’s train entering upon the crossing if they had operated their train under full control at the time they saw the M. K. & T. train go upon the crossing? A. Yes. ■ '
“5. Did plaintiff’s employees make every possible effort to get the passenger train off the crossing after they saw that defendant’s freight train was beyond control? A. Yes.
“6. Did the M. K. & T. employees have their train under control at all times as they approached said crossing from a point about 175 feet northwest of the crossing? A. Yes.
“7. Do you find the Missouri Pacific Railway Company, defendant herein, negligent in the following particulars, which negligence was the proximate cause of the collision:
“(a) Failure of the Missouri Pacific Railway Company to make proper and sufficient rules for the safe operation of its trains on approaching crossings? A. No.
“(b) Release of the brakes by the Missouri Pacific employees in charge of train No. 192, causing them to lose control of their train, when plaintiff’s train was in full view approaching the crossing and could have been seen by Missouri Pacific employees had they looked? A. Yes.
“(c) Violation of the rules promulgated by the Missouri Pacific Railway Company to govern their employees in operating trains on approaching crossings? A. Yes.
“(d) Approaching said crossing by. Missouri Pacific train No. 192 at too high speed? A. Yes.
“(e) Failure of the Missouri Pacific employees to use the reverse lever, sand, and brakes, when by so doing their train could have been stopped before arriving at the crossing? A. Yes.
“ (/) Failure of the Missouri Pacific employees to give warning signals after their train' was beyond their control? A. Yes.
“(g) Release of the brakes by the Missouri Pacific employees, knowing that when they released said brakes their train would be beyond control, and also knowing that the M. K. & T. passenger train was approaching and close to the crossing? A. Yes.” | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one by the state to recover money paid to the defendant for his services as secretary of the Panama-Pacific exposition commission. Judgment was rendered for the defendant on the pleadings and a stipulation regarding certain facts, and the plaintiff appeals.
The legislature of 1913 passed an act providing for the representation of the state of Kansas at the Panama-Pacific international expositions at San Francisco and San Diego, Cal. A commission was authorized to encourage and promote full and complete exhibits of the resources and interests of the state and its citizens at the expositions, and provide and maintain buildings for the state exhibits, for official headquarters of the state, and for the comfort and convenience of its citizens and exhibitors. The sum of $50,000 was appropriated to carry out the purposes of the act. The commission, of which the governor was ex officio chairman, consisted of five members appointed by the governor. The members of the commission were to receive no compensation for their services, but were entitled to actual and necessary expenses. The commission was authorized to appoint, with the approval of the governor, a secretary, and to fix his compensation for all services performed in carrying out the provisions of the act. The state auditor was authorized to draw warrants on the state treasurer for expenditures of the commission, on duly itemized and verified vouchers, signed by the secretary and approved by the governor as ex officio chairman. The commission was required to close its accounts, make an itemized and verified report of its disbursements to the state auditor, and return to the state treasurer any unexpended balance of money, within ninety days after the close of the expositions. The commission was authorized to convene within thirty days after appointment, on notification by the secretary of state, in the city of Topeka, to perfect its organization for the transaction of the business devolving upon it. The defendant was appointed a member of the commission, and when the commission organized was appointed secretary. As secretary he discharged the duties and performed the services required of him/ and received the compensation allowed by the commission. He did not participate with the other members of the commission in his selection as secretary, or in the fixing of his compensation, or in the approval of his vouchers.
It is quite clear that a very unfortunate but perfectly innocent mistake has been made. The commission could no more pay one of its own members compensation to do work in furtherance of the object of the creation of the commission than it could let to itself the contracts for the erection of the exposition buildings. It is much debated in the briefs whether or not the members of the commission held “office,” within the meaning of the statute prohibiting officers of various kinds from doing or having done for their own profit any work in and about their offices, or over which they have supervision, direction, or control. It is not necessary to decide the question. The members of the commission were charged with the execution of an important public trust, as agents, at least, of the state, and the same public policy which underlies the statute forbids an agent of a private individual, even, or any one acting in a fiduciary relation, to tempt his own loyalty by entering into any transaction which requires him to play a dual role. It makes no difference that the defendant did not participate in the forbidden acts, or that no fraud or wrong was intended, or resulted. The prohibition was laid on the commission as a body not to disburse the public funds to the advantage or profit of its own membership, in order to forestall enticement to subordinate the public to private interest.
No one would for a moment question the fidelity or integrity of the members of the commission, or of the other state functionaries through whose hands the defendant’s vouchers passed; but they could not, singly or all together, cure or waive the defect in the commission’s authority. The legislature alone can do this, and the defendant must be remitted to that body for relief.
Under the pleadings and the stipulation, the services rendered by the defendant as secretary of the commission were necessary to the proper carrying out of the provisions of the act creating the commission, and were of full and actual value equivalent to the amount allowed him by the commission as compensation. The judgment of the district court is reversed, and the cause is remanded with direction to adjudicate against the state the facts just recited, and render judgment in favor of the state according to the prayer of the petition. | [
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Th.e opinion of the court was delivered by
Marshall, J.:
The.defendant appeals from a judgment of conviction on an information in part reading:
“That on the 12th day of February, 1918, in the County of Nemaha and State of Kansas, one Frederick Shumaker, jr., did then and there, unlawfully, publieally [publicly] defile, defy or cast contempt on the flag of the United States of America by then and there saying in words as follows: ‘It is nobody’s business.’ . . .”
The rest of the language charged to have been used expressed a very vulgar and indecent use of the flag, and the court is of the opinion that the exact language should not find a permanent place in the reports of its decisions.
The defendant’s first contention is that'the verdict is contrary to law and is not sustained by the evidence. This contention is based on the proposition that the language used was not used in a public place.
The statute under which the defendant was convicted is section 3706 of the General Statutes of 1915, and in part reads-:
“Any person who . . . shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt, either by words or act, upon any such flag, standard, color, or ensign [of the United States], shall be deemed guilty of a misdemeanor.”
The defendant was in a blacksmith shop in the town of Wet-more when he used the language for which he was convicted. A blacksmith shop is a place to which the people of a community resort for the purpose of having machinery and tools repaired and iron work done. It is a public place. (Cemetery Association v. Meninger, 14 Kan. 312; City of Howard v. Stroud, post, p. 743, 65. Pac. 249; 6 Words and Phrases, 5806; 4 Words and Phrases, Second Series, 23; 14 A. and E. Encycl. ofL. 678;32Cyc. 1249.)
The next proposition urged is that the language used did not cast contempt on the flag. In response it must be said that it is hard to conceive of language that would express greater contempt for the flag of the United States than that used by the defendant. Such language will not, cannot, be used by any man in any place concerning our flag, if he has'proper respect for it. The m&n who uses such language concerning it, either in jest or in argument, does not have that respect for it that should be found in the breast of every citizen of the United States. Sudh language concerning our country’s flag will not be used except for the purpose of casting contempt on it.
The state was permitted to prove that about a year previous, in -February, 1917, on the day of the funeral of General Funston, the defendant went into the city of Wetmore and observed the United States flags at half-mast, and said: “What in hell is going on? I see you got the rags on the poles.” The defendant complains of the introduction of that evidence. It was competent for the purpose of proving the intent or motive with which the defendant used the language charged in the in formation. (The State v. Burns, 35 Kan. 387, 11 Pac. 161; The State v. Stevens, 56 Kan. 720, 722, 44 Pac. 992; The State v. Cooper, 83 Kan. 385, 111 Pac. 428; The State v. Hetrick, 84 Kan. 157, 163, 113 Pac. 383.)
The defendant complains of the rejection of evidence by which he sought to establish his intent, motive, and purpose in .using the language qharged. An examination of the abstracts, both for the plaintiff and for the defendant, fails to disclose the evidence that was excluded. The error, if there was error, in rejecting that evidence is not available to the defendant, for the reason that the court is unable to determine whether it was admissible or inadmissible.'
The defendant complains of the following instruction:
“If you believe from the evidence in the case beyond a reasonable doubt that the defendant, Frederick Shumaker, jr., uttered the words, or in substance uttered the words, either by way of argument or otherwise, as charged is said information, then the court instructs you that such words so spoken constitutes a violation of the section of the Crimes Act hereinbefore quoted.’*
What has been Said concerning the effect of the language used, applies here. .The language itself expressed contempt for, and cast contempt on,-the United States flag; and the court was justified in instructing the jury that the language used constituted a violation of the statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff bank sued on a promissory note. The verified answer and cross petition alleged that the note was given in conditional payment for a bull tractor, that it was agreed between the plaintiff, by its officers, and the defendant that if the tractor failed to work satisfactorily the note should be returned and the sale canceled; that the tractor failed to work; and that there was a refusal to comply with the conditions of the note. The trial" court placed the burden of proof on the defendant, sustained a demurrer to his testimony, and entered judgment for the plaintiff without submitting the matter to the jury. The defendant appeals.
I. W. Crumley, cashier oí plaintiff bank,' and his son advertised a bull tractor for sale, stating that it would “do the work of eight horses easy.” The defendant read the advertisement in a newspaper and wrote to Mr. Crumley, or to the bank, inquiring about a tractor, and was informed that his note was good for one any day he wanted one. Mr. Crumley brought the tractor down, and he and another man who came with him, or whom he followed, plowed one round with a 14-inch gang plow, stopping every little while. The defendant asked Mr. Crumley what the trouble was, and he said something was not properly adjusted, and that they would adjust it so that it would be in perfect working order when they got to the house. After visiting around awhile, Mr. Crumley said they had better fix up a little paper to have something to show, and presented a note to the defendant, payable to the plaintiff bank, for $630, which the defendant signed. In a few days the defendant went to work with the tractor and found that the radiator was leaking and that chewing gum had been put on to mend the leaks. Upon notification Mr. Crumley and an expert and a branch manager came out, whereupon Mr. Crumley was shown the leak and given the chewing gum and saw where the radiator was leaking, shooting in streams. He agreed to furnish a new radiator, but did not do so, simply writing afterwards that one could be had in Colby by coming after it and paying the charges. There was trouble with the crank-shaft bearings, with the radiator, and with the gasoline tank. Some three or four attempts to adjust the machinery failed to make it operate successfully. The defendant repeatedly stated to Mr. Crumley that he did not want the machine unless it would work, and was as often told by him that it would have to give satisfaction “or we won’t let you have it.” Mr. Crumley requested the defendant not to call him up over the telephone when the machine was not giving satisfaction, as he thought it would be a bad advertisement. The defendant testified that the greatest amount of work he did in any half day was eight rounds, and that a 15-year-old boy with five head of horses made as high as 15 rounds in a half day.
It is argued that there was no express warranty, and no implied warranty upon which the defendant could rely, only a mere assurance after the purchase of the tractor that it would work, and that it was kept too long before attempting to rescind. But the verified averment of a sale on condition .that the tractor should work satisfactorily was to some extent supported by the evidence referred to, and in the absence of some imperative reason why the defendant could not prevail — and none is shown in the record — the jury should have been permitted to weigh and consider such evidence. (Mentze v. Rice, 102 Kan. 855, 172 Pac. 516, and cases cited.)
It is suggested that the answer was an attempt to rescind and recover the note because of failure of consideration, and that the defendant has not brought himself within the law of rescission. As to the latter the record does not advise us, but it is not difficult to discover in the answer an attempt to plead a failure of consideration, which failure the evidence tended to uphold.
Whatever the ultimate facts or rights of the case may be, the demurrer was erroneously sustained.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
The district court of Morris county sustained a demurrer to plaintiff’s petition in an action sought to be maintained against the defendant on account of certain matters which transpired in a foreclosure suit in the United States district'court. In the federal suit, the present defendant, W. F. Guthrie, obtained a judgment foreclosing certain mortgages on plaintiff’s land in Morris county. While that suit was pending, the federal court appointed a receiver for the mortgaged ■property. That receiver collected the rents, not only during the pendency of the foreclosure litigation, but during the eight een months’ redemption period also; and he delivered all these rental moneys to the clerk of the United States district court. On application of Guthrie, the clerk of the federal court paid all these rental moneys to Guthrie and others. The petition fails to disclose (what appellant in his abstract aliunde supplies) that the clerk of the federal court paid out these moneys by orders of court, and that the federal court had jurisdiction of the subject matter, of the parties, and of the funds about which the present lawsuit is sought to be maintained.
From the mere statement of the foregoing, it should be obvious that this suit cannot be maintained. If any improvident, illegal, or erroneous orders touching the disposition of these rental moneys, or part of them, were made in the federal court, that court had the power to correct arid set aside those orders. No other court can do so. When a court has jurisdiction of a subject matter and of the parties, its jurisdiction is exclusive; no other court may meddle therewith, except through the orderly procedure of appeals. Where the subject matter of a lawsuit has been determined in one jurisdiction, it cannot be the subj ect of another and different lawsuit by the same parties in another jurisdiction. This is elementary law. Nearly fifty years ago, this simple, practical and necessary rule was announced :
“When a tribunal, having jurisdiction of the subject matter and the parties, has'once decided a question, it is res ad judicata between those parties, and cannot be relitigated by them in an original proceeding before another tribunal. The party complaining of such decision .or judgment should correct it by proceedings in error or appeal; and, failing to do so, he is estopped from further inquiry.” (Anthony v. Halderman, 7 Kan. 50, syl. ¶ 3.)
(See, also, Ewing v. Mallison, 65 Kan. 484, 488, 489, 70 Pac. 369; The State v. Lawrence, 76 Kan. 940, 943, 92 Pac. 1131; Yeager v. Aikman, 80 Kan. 656, 661, 663, 103 Pac. 132; 23 Cyc. 1055; 15 R.C.L. 835-837.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J,:
The plaintiffs appeal from an order sustaining the defendants’ demurrer to the plaintiffs’ aménded and supplemental petition. The plaintiffs seek to enjoin the collection of special taxes levied by the defendants, to pay fo:r public improvements made along real property owned by the plaintiffs. They also seek to enjoin the general taxes levied by the city on that property. They attack the validity of the ordinance by which the property in question was annexed to Kansas City. They allege that the ordinance, is void for the reason that the land was not contiguous to, and did not touch, the boundaries of that city, and for the further reason that the description of the property, as recited in the ordinance, was indefinite and uncertain! The plaintiffs further allege that “neither Grant Place, Cissna Place, Griswold Brown’s Survey, Elmgrove Place, Hazel Rose, or Longwood Addition, theretofore platted and lying between the said city limits of Kansas City, Kan., and the property here in controversy, had been added to, annexed, taken in or made a part of said city” prior to the 16th day of November 1909, the day on which the ordinance questioned was passed. There is no allegation in the petition that none of the property sought to be annexed by the ordinance was contiguous to the boundary of Kansas City, and there is no allegation that the property between the city and the property owned by the plaintiffs was not annexed by that ordinance.'
Under section 1041 of the General Statutes of 1915, property consisting of one body of land may be annexed to a city of the first class at one time, if the whole of the tract thus annexed' is contiguous to the city, although parts of the tract may be owned by different persons. (Hurla v. Kansas City, 46 Kan. 738, 27 Pac. 143.) If the plaintiffs can maintain this action, their petition should show, not only that their property was not contiguous to the city, but also that the property between theirs and the city was not then being annexed.
The defendants insist that the plaintiffs cannot maintain this action for two reasons: First, that the plaintiffs are collaterally attacking the validity of the proceedings to annex their property; second, that those proceedings cannot be ques tioned by any one except the state through its proper officers. In Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624, this court said:
“The validity of proceedings taken by city officers under statutory authority extending the corporate boundaries of a city so as to annex a tract of land can only be questioned in a direct proceeding prosecuted at the instance of the state by proper public officers.” (syl.)
This rule has been followed in a number of cases, among which are Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Railway Co. v. Lyon County, 72 Kan. 16, 84 Pac. 1031; Gardner v. Benn, 81 Kan. 442, 105 Pac. 435; Railroad Co. v. Leavenworth County, 89 Kan. 72, 130 Pac. 855; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010; The State, ex rel., v. City of Hutchinson, 102 Kan. 325, 169 Pac. 1140.
Even if the ordinance is void, and even if -the plaintiffs have a legal right to maintain this action, yet they must fail because of section 1 of chapter 104 of the Laws of 1913 (Gen. Stat. 1915, § 1042), which reads:
“That all ordinances' and proceedings of any city of the first class haying a population of more than forty-five thousand inhabitants which have been heretofore passed providing for the extension of the corporate-limits of said city are hereby ratified and confirmed and such extensions shall be deemed and held valid in all respects: Provided, however, That this act does not affect any suits now pending in any courts in the state of Kansas.”
Even if the lands owned by the plaintiffs were absolutely separate and apart from the city, and entirely disconnected from it in every way, yet the legislature had power to ratify the act of the city in annexing those lands. The legislature could have authorized such annexation in the first instance and could, therefore, ratify such annexation after it was made. (Mason v. Spencer, County Clerk, 35 Kan. 512, 11 Pac. 402; Newman v. City of Emporia, 41 Kan. 583, 21 Pac. 593; The State, ex rel., v. Burton, 47 Kan. 44, 48, 27 Pac. 141; Leavenworth v. Water Co., 69 Kan. 82, 76 Pac. 451; Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016; The State v. Adams, 85 Kan. 435, 116 Pac. 608; 2 McQuillin on Municipal Corporations, § 707; 36 Cyc. 1016.)
Certain special assessments levied on the lands in controversy were enjoined, as to part of those lands, in 1913, for the reason that the lands assessed were not within the taxing district for the improvements for which the assessments were made. The city thereafter levied those assessments' on the land within the taxing district. The part of the street improved was between Seventeenth and Nineteenth streets; but the assessments were relevied on the property between Eighteenth and Nineteenth streets. These streets constituted the boundaries of the block, and, under section 1231 of the General Statutes of 1915, the assessments were properly levied on the land within that block. Section 1231, in part, reads:
“For all paving, repaving, macadamizing, remacadamizing, curbing, re-curbing, guttering and reguttering of the streets and alleys, the special assessments shall be made for the full cost thereof on each block separately.”
This statute controls.
The city had power to relevy the special assessments on the property liable therefor. (Gen. Stat. 1915, § 1216; Manley v. Emlen, 46 Kan. 655, 27 Pac. 844; Kansas City v. Silver, 74 Kan. 851, 85 Pac. 805; Kansas City v. Schwartzberg, 78 Kan. 402, 96 Pac. 485; Shepherd v. Kansas City, 81 Kan. 369, 375, 105 Pac. 531.) Numerous other decisions of this court might be cited.
The amended and supplemental petition alleges that a number of special assessments were illegal and void for various reasons. That petition discloses that none of those assessments was. attacked by any action in any way within thirty days from the time the.amount due was ascertained. For this reason those assessments cannot now be questioned. (Gen. Stat. 1915, § 1217; Park Association v. City of Hutchinson, 102 Kan. 488, 171 Pac. 2, and cases there cited.)
General'taxes were properly levied on .the property owned by the plaintiffs, after that property had been annexed to Kan-' sas City.
The petition does not state a cause of action in favor of the plaintiffs, and the judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The defendant was convicted of violating the prohibitory liquor law. She was sentenced to pay a fine and to be committed to the state industrial farm for women. She appeals from the portion of the sentence assessing the fine.
The fine was assessed pursuant to section 1 of chapter 215 of the Laws of 1917,' commonly known as the bone-dry law. The ground of the appeal is that, as to the defendant, the provision for fine was repealed by an act passed later in the same legislative session, chapter 298, establishing a state industrial farm, and providing for detention there of females above the age of eighteen years convicted of criminal offenses.
Section 23 of chapter 298, the repealing section, reads as follows:
“All laws and parts of laws relating to the management, control, sentence and imprisonment of females over the age of eighteen in conflict with this act are' hereby repealed.”
This section of itself repealed nothing, and the substantive provisions of the act must be examined to determine how far they are inconsistent with other statutes. The title of the act reads as follows:
“An Act establishing an institution for the detention and care of women convicted of criminal offenses, providing for the government of the same, and making appropriation therefor.”
All the provisions of the act are strictly relevant to the subject thus expressed. Section 5 relates to sentence on conviction of an offense punishable by imprisonment, and is confined strictly to detention. Nothing else in the act affords the slightest intimation that punishment for crime shall be limited to detention, and the court concludes the legislature intended to do' no more than discontinue imprisonment in the county jail and in the penitentiary, and substitute restraint at the state industrial farm.
The provisions for the release of women committed to the state industrial farm appear to be such as to forbid detention for the payment of fines and costs; but they do not forbid the assessment of fines and costs according to the penal laws denouncing them.
The judgment of the district court is affirmed. | [
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The opinion of the oourt was delivered by
Johnston, C. J.:
This action was brought to enjoin the enforcement of a judgment for alimony. A demurrer to plaintiff’s petition was sustained, and from this ruling he appeals.
From the petition, it appears that Ludie Bassett sued her husband for a divorce, and after a trial on October 13, 1916, a judgment was given in her favor. It recites:
“It is ordered, adjudged and decreed that the plaintiff he and she is hereby divorced of and from the defendant for his fault and - wrong as set forth in plaintiff’s petition; that the plaintiff, Ludie Bassett, be and she is hereby awarded alimony in the sum of fifteen hundred dollars, five hundred, dollars to be in cash of which two hundred and fifty dollars has already been received, and five hundred dollars a year for a period of two years hereafter, payable one and two years from date hereof.”
The custody of a son was given to the husband, and it was further provided that payment of the alimony adjudged should be in full of all claims for alimony or on any other account against the husband. He paid $1,000 of the amount adjudged, after which, and on November 1, 1916, she assigned the judgment to the defendant, John C. Waters. On October 2, 1917, a few days before the last installment became due, she died. The defendant, John C. Waters, was proceeding to enforce the judgment by execution, when this proceeding was begun.' The contention of the plaintiff is, that the award of alimony was strictly personal for the support of the divorced wife; that it was subject to modification; and that it terminated upon her death. The nature and effect of the judgment must be determined from its terms. The court had power to decree alimony to the wife in the form of support payable periodically, which would be subject to modification on account of changed circumstances, or to award her permanent alimony in the form of a final judgment enforceable as an ordinary judgment at law. (Scott v. Scott, 80 Kan. 489, 103 Pac. 1005.) As will be observed, the judgment in question was not a periodical allowance for the maintenance and support of the former wife, but it was absolute in form and for a gross sum based on the marriage obligation of the husband, with all the characteristics and conclusiveness of any other judgment for debt. The finality of such a judgment has been determined- in a case where permanent alimony was awarded in a lump sum payable in installments, which was held to be absolute and conclusive, not only as to the divorce, but as to the question of alimony, and it was held that the court was without power thereafter to change the judgment because of a change of circumstances, or for any other reason. (Mitchell v. Mitchell, 20 Kan. 665.)
It has been said that:
“A decree of alimony is generally considered a debt of record as much as any other judgment for money. Accordingly the wife in whose favor an allowance has been made occupies the position of a judgment creditor of her husband, and as such she is entitled to avail herself of all the remedies given to judgment creditors. Thus she is entitled to the issuance of execution to enforce the payment of the award, and the same may be levied on the personal property of her husband or on his real estate if necessary.” (1 R. C. L. 951.)
(See, also, Coffman, Admr., et al., v. Finney, Admr., et al., 65 Ohio St. 61.)
The fact that the lump-sum judgment awarded the divorced wife was payable in three installments did not take from it the character of finality. (Mayer v. Mayer, 154 Mich. 386.) Whatever the rule may be in other states, judgments for alimony in the form and character of the one under consideration are final and conclusive, subject to assignment, and, in the absence of a reservation therein, may be enforced as ordjnary judgments for debt are enforced.
Judgment affirmed. | [
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The opinion of the court was delivered by'
Johnston, C. J.:
A rehearing has been granted in this appeal. On the former hearing the judgment in favor of the defendant was affirmed upon the ground that plaintiff’s alleged cause of action was barred by the statute of limitations. (Engelbrecht v. Herrington, 101 Kan. 720.) The rule of law declared in- the first opinion is conceded to be correct and applicable in ordinary cases of breach of contract, but it is contended that because of the agreement and conduct of the parties a trust arose in favor of the plaintiff, and that the proceeds of the farm sold by his father in 1909 became a trust fund in the hands of the father, and that the statute of limitations did not run until the plaintiff obtained knowledge of the repudiation of the trust.
First, it is said that the question of the statute of limitations was not sufficiently pleaded to raise an issue in the case. In his answer the defendant set forth a general denial and then alleged that “plaintiff’s pretended cause of action is barred by the statute of limitations.” The allegation as to this defense is not as specific as it should have been, but no reply was filed and no question was raised as to the sufficiency of the allegation at the trial. An attack as against generality or as to the statement of conclusions of fact in a pleading should be raised by motion, and such an objection is not good even when raised by a demurrer. (Meagher v. Morgan, 3 Kan. 372; L. L. & G. Rld. Co. v. Leahy, 12 Kan. 124; McPherson v. Kingsbaker, 22 Kan. 646; Neosho County v. Spearman, 89 Kan. 106, 130 Pac. 677.) No objection having been made as to the form and sufficiency of the averment on the trial, nor yet in the brief filed at the first hearing of the appeal, it cannot be raised at this time.
The question then is, Did the contract between the father and son create a trust which prevented the statute of limitations from running against his action? The plaintiff contends that as an express trust is created by agreement which specifically defines the persons, property, and purpose of the trust, the agreement between Andrew Engelbrecht and himself created an express trust, and that in case of such a trust the statute Jdoes not begin to run until there has been a denial or repudiation of the trust. The contract sought to be enforced and upon which a trust is claimed was not in writing. It related to lands, and under the statute an express trust concerning real estate can only be created by a writing signed by the party creating the same or by his attorney lawfully authorized in writing. (Gen. Stat. 1915, § 11674; Knaggs v. Mastin, 9 Kan. 532; Gee v. Thrailkill, 45 Kan. 173, 25 Pac. 588.)
Aside from this objection, the contract is one which cannot be enforced, because of the prohibition of the statute of frauds. Under that statute a contract for the sale of lands or of any interest therein is void and unenforceable if it, or some memorandum of it, is not in writing. It is likewise void if it is one not to be performed within a year. As the contract in question was oral, and there is a finding by the jury, which the court adopted, that it was not capable of performance within one year, and further that it was- not the intention of the parties that it should be performed within that time, it must be deemed to be void unless it is taken out of that statute by some fact or circumstance in the case. (Gen. Stat. 1915, § 4889.) Plaintiff contends that performance of the contract on his part was sufficient to take it out of the statute. Performance by him is the equivalent of payment of the purchase price of one-half of the farm, but, under the authorities, that will not take a parol contract concerning lands out of the statute. In Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591, there is a discussion as to what will take a parol contract for the sale of lands out of the statute, and, after stating that improvements made after the death of one of the contracting parties and without authority from his heirs would not have that effect, and also that mere constructive possession would not remove it from the operation of the statute, the court, in speaking of performance to the extent of payment of the purchase price, said;
“In reference to this the general rule is, that payment of the purchase price does not take such a contract out of the reach of the statute of frauds. (Edwards v. Fry, 9 Kan. 423; Fry on Specific Performance, §403; Browne on Statute of Frauds, §463.) This is upon the ground that the money can be recovered back by action, and so no fraud will be accomplished if the parol contract is not enforced.” (p. 284.)
In Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708, it is decided that “a parol agreement to convey land and full payment of the purchase price, will not alone operate to pass the title thereto where no possession of the land'is taken under the agreement, and no memorandum thereof is in writing.” (syl. ¶ 3.) . In Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568, it was stated that payment of the purchase price alone is not sufficient to take the case out of the statute, nor is such payment accompanied by possession enough unless the possession is open, notorious, exclusive, continuous, and obviously in pursuance of the contract. (See, also, Baldridge v. Centgraf, 82 Kan. 240, 108 Pac. 83.) The general rule is that every parol contract concerning lands is within the statute of frauds and perjuries and unenforceable except where the performance cannot be compensated in damages. The fact that the consideration for the contract was to be paid 'in services, and not in money, makes no difference in the application of the rule. If the value of the plaintiff’s services may be determined and compensation made in money the case is not taken out of the statute. (Baldwin v. Squier, 31 Kan. 283, 1 Pac. 591.) Any dispute there might have been on that subject is settled by the answer given by the jury to special interrogatory No. 11, submitted by the court, which is as follows:
“Can Peter Engelbrecht be fairly and reasonably compensated in money for the services he rendered on the farm from the spring of 1884 to 1889? Ans. Yes.”
This finding, which met the approval of the court, together with the conceded facts that there was no possession and no performance except services rendered in payment of the consideration — something which it is found can be measured and computed in money — makes it clear that the verbal contract is within the statute, and unenforceable.
The judgment must therefore stand affirmed. | [
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The opinion of the court was delivered by
West, J.:
Chapter 308 of the Laws of 1917, section 6, provides that the Kansas state board of review shall examine films,
“and shall approve such films, reels, folders, posters and advertising matter which are moral and proper; and shall disapprove such as are cruel, obscene, indecent or immoral, or such as tend to debase or corrupt morals.”
On May 5, 1917, the film known as “The Birth of a Nation” was presented to the board, and in-the afternoon, after some discussion, it was announced that after certain eliminations had been made the picture would be passed, and a card or certificate approving it and indorsing the eliminations required was prepared. These eliminations were agreed to. The film was left with the board until the evening of Monday, May 7, when it was shipped to a representative of the picture company, the certificate having been signed and delivered. On May 9, 1917, the following order was mailed the producer:
“The Board of Review of Motion Pictures, Kansas, hereby orders the recall of the film ‘Birth of a Nation’ for reexamination, and we are giving you the official thirty days’ notice. In the meantime, of course, there must be no exhibition of the picture in the state.”
Section 17 of the act is as follows:
“The board may order a reexamination of any film, or reel, approved by it, upon giving 30 days’ written notice to the owner of said film or reel. At such reexamination the board may make such order as would be proper upon the original examination.”
The order to return was not complied with, and the state brings this action in mandamus to compel the producer to deliver up to the board of review the certificate heretofore issued and waive all rights thereunder, or in the alternative immediately to submit such picture to the board for review and reexamination in accordance with the notice, or show cause why it has not done so.
The defendants plead the order of approval, and allege that all the members of the board were satisfied therewith until two of them were adversely influenced by certain prominent and influential outside persons; that there is no just cause or reason to recall the picture; that the recall was not the voluntary act of the board done in good faith, but that two members yielding to outside pressure ordered the return, not for reexamination, but for rejection; that there is nothing in the film as eliminated which authorizes rejection; and that there is resting on the defendants no duty “resulting from an office, trust, or station” (Gen. Stat. 1915, § 7646), so as to make mandamus applicable.
The controversy has assumed much wider proportions than need'be covered by this opinion.
The court having considered each point and argument, each claim, charge and countercharge, the majority decide and hold that the certificate of approval was given and received subject to subsequent recall of the film for reexamination; that- upon such recall a duty arose of a public or quasi-public character to comply therewith; that the matter of censorship being one affecting public morals, the duty to return is of such nature that its performance may be required by mandamus. In view of the presumption that public officers will do their duty and act fairly, the evidence of opinions already formed by two members of the board, and of the pressure of views expressed to them by others, does not raise the counter presumption that in such reexamination such members will not act in good faith. Should bad faith be actually shown, relief may be had in the courts.
The writ is allowed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The public utilities commission appeals from a judgment of the district court of Shawnee county enjoining an order of the commission issued in April, 1915, directing the plaintiff to publish and observe a new and reduced schedule-of freight rates on mine chats, gravel, and rough stone, from Galena to the several stations on its railway in Kansas within 150 miles of that city. The order was made pursuant to a hearing before the commission upon the complaint of the Galena commercial club. Within 30 days thereafter, the railway company brought this suit, charging that the freight rates sought to be established by the commission were unlawful, unreasonable, and discriminatory—
“That the said order and schedule of rates is unjust and that its enforcement by the defendant would deprive this plaintiff of its property without due process of law and deny to it the equal protection of the law.”
Issues were joined and certain statistical and opinion evidence was introduced, and certain incidents touching the commercial .aspects of the trade in chats in and near Galena were estáblished; and by agreement of parties the evidence presented to the commission at its hearing was also introduced. The finding of the district court read:
“The court finds the issues in favor of the plaintiff and against the defendant, and that the schedule of rates promulgated by the defendant on the 5th day of April, 1915, over the lines of the plaintiff railroad, from its station at Galena to other stations on its line, within the state of Kansas, on mine chats, gravel and rough stone is unreasonably low and discriminatory and would be unjust to the plaintiff company.”
On this finding the rates were enjoined, and the errors as signed challenge the sufficiency of the evidence upon which the judgment'is based.
In this behalf the defendant’s argument begins'with a reminder that the rates fixed by the commission are presumed to be reasonable, and that the burden is on the plaintiff railway to show the contrary. We do not understand that the plaintiff disputes this as an abstract principle. The railway company assumed the burden in the district court of overturning that presumption. Whether the evidence adduced in its behalf did overcome that presumption, or — to put it more precisely — whether the evidence was of sufficient probative force to justify the trial court in finding that the presumption was overthrown and the contrary established, is the only question which this court can consider. To determine this we have not only perused the abstract but the transcripts of the evidence presented to the commission and to the trial court. This evidence tends to show that for certain rate-making purposes Galena is grouped with certain neighboring Missouri towns, including Joplin which is less than eight miles away, and that this group of towns enjoys the same freight rates on chat, etc., except that at the time this rate was being considered by the commission, and for about a year prior thereto, there was in effect in Missouri a statutory rate on chats, etc., less than, the then prevailing Kansas and interstate rates. The evidence tends to show that for several years prior to the filing of the complaint before the defendant commission by the Galena commercial club, the shipment, of chat had practically ceased, except for use as railway ballast. This was partly caused by the fact that Galena chat was not of so good a quality as the chat obtainable in Joplin and the other towns grouped with Galena. Another reason was that these other towns grouped with, Galena had better facilities for loading the chat; and the cost of loading and transportation is practically all that the chat is worth. At the points of production it has no substantial value. The Missouri statutory rate, which appears to have been accorded considerable weight by the commission in fixing the rate complained of, had not been long in effect, and it was not voluntarily acquiesced in by the railway company, and that rate has since been substantially increased by the Missouri state commission. Freight rates', voluntarily established by carriers, and rates established by authority of law, —whether by legislatures or by commissions — and rates judicially determined to be reasonable and just, are practical and valuable aids in rate-making and in determining the fairness of a disputed rate, provided, of course, that the similarity of the traffic conditions is established or a proper allowance is made to overcome existing differences in traffic conditions. (Railroad Co. v. Utilities Commission, 95 Kan. 604, 616, 148 Pac. 667.) But a freight rate imposed upon a carrier by whatsoever authority, which the carrier has not assented to, and which it has not had a reasonable time and opportunity to contest, is of very little probative value, either for rate-making or for determining the reasonableness of a questioned rate, even if the density of traffic and other pertinent conditions attending it are similar, or their proper relationship be conceded or established. It would seem that the abrogation of the' Missouri rate from the Joplin group points used by the defendant commission as an aid in determining the rate from Galena here complained of, and the granting of a substantially higher rate in Missouri, were evidential circumstances of considerable force which the trial court could properly consider in determining the reasonableness and justice of the commission’s order establishing rates out of Galena.
■ The evidence ¿Iso showed that the use of chat, etc., from the Galena-Joplin group of shipping points comes in competition with the use of gravel from Emporia, Council Grove, and Chanute, and with the use of crushed stone from Iola and Junction City; and the- trial court might properly give some consideration to those facts. We would not intimate that a rate from Galena could not be reduced because it would unsettle competitive conditions elsewhere, but it is proper to consider all these facts in determining whether a rate reduction is fairly designed to measure the respective rights of shipper and carrier, or to discriminate in favor of a shipper or shipper’s club against rivals in business, while largely losing sight of the just rights of the carrier. If the commission’s rates from Galena are established, it would be possible for Galena chat to invade and preempt a wide marketing territory in which the producers of gravel and crushed stone now meet and compete under lawful and long-established Kansas freight tariffs. Furthermore, if the rates out of Galena are to stand, Joplin and the other near-by points in the same group would be entitled to a reduction in their interstate rates so that they might continue to enjoy their trade in Kansas territory. This is the doctrine of the Shreveport case. (Railroad Commission of La. v. St. L. S. W. Ry. Co., 23 I. C. C. 31; Houston & Texas Ry. v. United States, 234 U. S. 342, 58 L. Ed. 1341; Railroad Co. v. Utilities Commission, 95 Kan. 604, 626, 148 Pac. 667.) Under the doctrine of these cases the plaintiff railway is forced to the alternative of contesting the Galena rates, on which little or no traffic moves and which could in no event become other than a negligible factor in its business, or subject itself to the likelihood of seeing its revenues depleted by a corresponding reduction in the interstate rates from the other Joplin group points. Furthermore, if the Joplin interstate rates were reduced, the superior quality of Joplin chat would again drive the inferior Galena chat out of the market.
Whether this was the course of reasoning by which the trial court arrived at its finding and judgment, we cannot say; but these considerations were well within the purview of the evidence. There was considerable opinion evidence of experts, both for the plaintiff and the defendant. Some of these were traffic men of large experience, and while their eagerness to serve their employers was a thing to be considered in weighing their testimony, they were subjected to skillful cross-examination, and the experienced trial judge who heard them testify must be deemed to have given proper weight to their testimony. Since expert and opinion evidence is competent, its value must largely be left to the trial judge, who sees and hears the witness, his manner of testifying, his apparent candor and familiarity with the subject, and any interest he may appear to have in the controversy. In our opinion, the great preponderance of this class of testimony, whatever its worth might be, was that the rates complained of were unreasonably low.
Besides, the reductions required by the order of the commission are themselves of some evidential potency. These reductions run from 8 percent to 75 percent, and average 34 percent below the former long-established rates on1 which this commodity has freely moved from points grouped with Ga lena in southeastern Kansas and southwestern Missouri for many years.
It is finally urged that the railway company did not produce any figures showing the cost of moving chat from Galena, and therefore it was not clearly proved that the rate complained of is noncompensatory. But the courts have recognized that this sort of evidence is seldom, if ever, available; and until railroads and shippers, or legislatures and commissions and courts, or all of them together, can settle and agree upon some arbitrary factor to be included as the proper proportionate burden of investment, maintenance, administration, taxation, wages, service, etc., which every commodity hauled by a railroad should bear, the evidence which appellant says was wanting in this case will be wanting in every case; and if the failure to produce that particular line of evidence is fatal to the carrier’s cause, it would always be useless to seek judicial redress. A freight-rate lawsuit is in most respects like any other lawsuit. It has to be decided on the evidence which the parties can .and do present, and justice cannot be withheld because a rate complained of cannot be shown with the precision of a mathematical theorem to be noncompensatory.
After a painstaking study of this record the court can discern no ground, for a reversal, and therefore the judgment is affirmed. | [
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The opinion of the'court was delivered by
West, J.:
This action was brought to enforce specific performance of a contract. The defendant prevailed, and the plaintiff appeals, assigning numerous errors which may all be considered under one head — that the contract should have been decreed valid instead of void. The trial was by the court, and the subsidiary questions as to the reception of evidence and the ruling on various motions need not be discussed.
The following is the contract sued on:
“Be it remembered, that the Irrigation Loan and Trust Company has sold and C. W. Oswald has thi? day purchased Lots 117, 119 and 121, South Main Street, Hutchinson, Kansas, for and in consideration of the sum of Eleven Thousand ($11,000) Dollars to be paid on or before June 3, 1910, with interest at the rate of 6% per annum payable semi-annually until paid.. It being understood that the property sold includes the lots mentioned, the buildings thereon, and between ninety ($90) and One hundred ($100 ) Dollars due from the Rock Island Railway on the switch track running through said property. And that this contract also includes the office furniture and equipment in the office of said building.
“It being further understood that second party, C. W. Oswald, shall take charge of said property at once and collect the rents therefrom. That the title to the said premises shall be delivered to the said Oswald within ten days after the payment hereof and written demand is made therefor, or if not demanded, then within ten days after June 3, 1910. Said title to consist of full warrantee deed and to be free from all incumbrances and abstract of title furnished. And in case there is any incumbrance which is not removed by said time, then the amount thereof shall be retained by C. W. Oswald pending the removal of such incumbrance.
“Provided further, that said party of the first part, the company, hereby agrees upon written demand at any time prior to June 3,1910, and the payment of $330, being the interest on said purchase price to June 3, 1910, to repurchase said property at same price $330 excepted providing the same is tendered back in its present condition, natural wear and tear and loss by fire excepted, and carry $1,000 insurance payable to first party.
“It being further provided ¡that no change shall be made in the improvements of said premises prior to the time final payment is made hereon except upon written permission. Time being the essence of this contract and if repurchase is made under the terms hereof then this contract shall be cancelled; otherwise, to remain in full force and effect.
“Dated the 3rd day of December, 1909.
The Irrigation Loan and Trust Co.,
By F. W.- Casner, President.
C. W. Oswald.
“Provided that upon payment of $4,000 and interest on June 3, 1910, or before, first party will accept as balance payment in full first mortgage for seven thousand on said property at 6% annual interest made by second party principal payable in any multiple of $100 at any interest paying date.”
The answer denied the averments of the petition and alleged, among other things, that the plaintiff company, through its president and general manager, F. W. Casner, proposed to give the defendant an option on the real estate described; that Casner prepared the instrument sued on, which he represented was merely an option; and that relying on such representation, the defendant signed it. It was further alleged that on May 19, 1910, the defendant wrote Casner a letter in order to give him notice that he intended to pay $330 “in full satisfaction of the terms of said option,” setting out a copy; that hearing nothing in reply, the defendant, on or about June 11, ■1910, forwarded to the plaintiff a check for $330, “in payment of the amount due according to the terms of said option,” which Casner refused.
On the trial it was admitted that.the plaintiff and defendant executed the contract; that the defendant went into possession of the property and collected the rents; and that.on June 7, 1910, plaintiff tendered the instruments and transfers referred to in the abstract, and still tendered them.
The court found as facts that the contract was prepared in duplicate by Casner after a conference with Oswald, and one or both copies were immediately delivered to Oswald, who delivered them to his attorney in this action for examination, correction and approval; that the attorney made several changes by interlineation, and returned the contract to the defendant; that Casner and Oswald met at an office where the duplicate copies were talked over, and they discussed the interlineation, and by mutual agreement made certain changes, after which the contracts were completed as they now stand and were signed in duplicate; “(Sixth:) That F. W. Casner did'not misrepresent the contents of said contract to defendant or mislead him in any way;” that the defendant, after the plaintiff had made tender under the contract and had made demand for the purchase price, sent- F. W. Casner a check on June 11, 1910, for $330, which check was returned to the defendant; and “(Thirteenth.) That defendant is a successful business man of Hutchinson, Kansas, fifty years old, with a good education, good eyesight and is not laboring under any physical or mental disability and is possessed of all his faculties, and was at all times named in this suit.” It was further found that the letter of May 19 was not personally received by Casner, and that the company had no place of business in Kansas, and that its business was transacted by Casner, whose post-office address was Kansas City, Mo.; that the letter was “duly addressed to F. W. Casner, Kansas City, Missouri,” with proper postage and return card, and was never returned to the sender.
The court concluded as matters of law that the contract was one of sale, and also an option contract — an option to resell and not to purchase; that the letter of May 19 was a sufficient demand and notice that the defendant “intended to insist on his rights under the option to resell to the plaintiff”; and that on making his tender of $330 good the defendant should have judgment for costs.
It is clear that the defendant is bound by the terms of the contract, which he deliberately entered into with full knowledge or means of knowledge as to its contents and meaning, and that no representation or previous conversation can affect the situation.
But two questions arise — the meaning of the contract, and the effect of the defendant’s letter and remittance. The instrument recites that the company has sold and Oswald has purchased the described lots for $11,000, to be paid on or before June 3 ,1910; that the property sold included the buildings thereon; that the title to the premises should be delivered to Oswald within ten days after payment and written demand. This meant the title papers, for the next clause recited that “said title” should consist of full warranty deed and abstract of title.
The clause after the signature provided for payment of $4,000 cash and a mortgage for the remaining $7,000.
All these things taken together foreclose any question as to the instrument’s being a contract for the purchase of the lots by Oswald. It was a contract of sale by plaintiff company, and the trial court was right in its conclusion.
The provision that upon written demand at any, time prior to June 3, 1910, and the payment of $330 the company agreed to repurchase the property at the same price, $330, providing it be tendered back in its present condition, natural order, and free from loss by fire, and kept insured for $1,000, is what the trial court rightly termed it, an option to resell, and the final clause in the body of the contract was significant:
“Time being the essence of this contract and if purchase is made under the terms hereof that this contract shall be cancelled; otherwise to remain in full force and effect.”
So under this plain agreement Oswald could require the company to take the property back only'on condition that he make written demand before June 3, 1910, and pay $330.. What he did was to write a letter on May 19, in which he spoke of his efforts to sell the property and the price placed on it, which he deemed too high, repeatedly referring to the deal as an option matter, and said—
“Now I think the only thing for me to do is to pay you tha $330 interest and make a new option along the lines I suggested when we made this deal last September. ... If you will telephone me the next time you are in the city I will meet you at the hotel or at the theatre, or any place that suits you so we can talk the matter over without being disturbed. If we can not make a satisfactory deal I will be willing to give you a check for the interest and close the deal. I thought I had better write in time so you could see me and if could not make a deal some kind we could close this one to our satisfaction.”
All this letter amounts to'is a suggestion that the parties get together and make a new contract, and that in case they should be unable to do so, the defendant would want to take advantage of the option in the present one. It is not an assertion of any present right to demand that his option to sell be met. It is not a demand in writing; the letter does not tender or even suggest a tender of the required amount of money, but suggests the future payment thereof in case the parties do. not at some subsequent time come together upon a new contract. There is nothing in this letter which amounts to any sort of compliance with the contract by way of demanding the repurchase of the lots by the plaintiff company within the specified time. It appears that the parties did pot get together and did not meet until about the 7th day of June, four days after the expiration of the essential time fixed by the contract, at which time Casner tendered a delivery of the deed and abstracts. Instead of accepting these instruments, the defendant, four days still later, mailed a check to Casner for $.330, which was returned. True, at the meeting on the 7th of June Oswald advised Casner of the letter he had. written on the 19th of May, and of his refusal to carry out the contract, and his desire to pay the $330 and surrender possession at once. This was hot acceptable to Casner, neither was it in accordance with the terms of the contract.
The conclusion that the letter of May 19 was a sufficient demand or notice on the contract is not justified by the facts and findings or the terms of 'the agreement entered into by the parties.
For this error the judgment is reversed and the cause remanded with directions to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover from the defendant $1,000, one-half of the amount named in a beneficiary certificate issued by the defendant to Daniel Gorman Carver, the plaintiff’s husband. The other $1,000 had been paid under a compromise and settlement which, the plaintiff alleged, had been brought about by the ■ fraudulent representations of the defendant. The jury found in favor of the plaintiff.
The defendant says:
“The principal question in this case, if not the only one, is whether or not there was a valid compromise and settlement; but before the plaintiff had any right to bring this action upon the Benefit Certificate in question; she should have tendered back the thousand dollars already paid, and sued for the full amount, which would have given the defendant an opportunity to have defended against the whole policy.”
The plaintiff alleged that the defendant, through its president, had falsely represented to the plaintiff:
“That the said Daniel Gorman Carver had made false statements of his soundness of health, that he had no hardening of arteries, in his application for said benefit certificate, which rendered the said benefit certificate absolutely void.”
The plaintiff also alleged that she believed those statements and that she relied and acted on them.
The jury, in answer to special questions, found that the defendant’s representative made a misrepresentation to the plaintiff in making the settlement of her claim on the beneficiary certificate of her deceased husband; that the misrepresentation consisted of an “express statement as to answer made by Mr. Carver in his application for membership”; that the defendant’s representative practiced, fraud in making such settlement; and that the fraud consisted of the misrepresentation referred to.
The principal question argued was presented to the trial court by a demurrer to the plaintiff’s evidence, by requesting the court to instruct the jury to render a verdict in favor of the defendant, by a motion to set aside the verdict and render judgment for the defendant, and by a motion for a new trial. The question resolves itself into one proposition, and that proposition is: Was there evidence to prove the fraud alleged?' There was evidence which tended to prove that the president, of the defendant, an incorporated fraternal beneficiary society, had said to the plaintiff that Daniel Gorman Carver had died of Bright’s disease and arteriosclerosis, or hardening of the arteries;'that Carver had said in his application for the beneficiary certificate that he did not have Bright’s disease or hardening of the arteries; that those statements made by Carver were false; and that the plaintiff’s' claim was void. The-application for the beneficiary certificate contained the following questions and answers, among others:
“Have you suffered with appendicitis? No. . . . Disease of' Heart? No. Brain? No. Kidneys? No. . . . Have you suffered with dropsy? No. ... Or other diseases? No. If so explain fully giving dates of attack.”
The report of the defendant’s medical examiner contained', the following:
“Note: An examination of urine is necessary in every case.
“17. Was urine passed by applicant? Yes. Give date. December 30,. 1912.
“18 Color: Amber. Acid or alkaline? Acid. Specific gravity: 1020. Albumen: None. ..‘Sugar: None.
“19. Are the functions of the kidneys and bladder healthy? Yes.” .
If the report of the medical examiner was true, the jury was justified in believing that Carver, did not have Bright’s disease at the time he signed the application.1 The proof of death stated that Carver-had been treated for arteriosclerosis five' years previous to his death, and had.beén treated for Bright’s disease, but did not state when the latter treatment occurred. The proof of death also showed that Carver’s death was caused by arteriosclerosis. The application, the medical examiner’s réport, and the • beneficiary certificate -were dated December-30, 1912. Carver died on-December 11,- 1915. There was nothing in the evidence to indicate that Carver knew anything-about his being afflicted with either arteriosclerosis or Bright’s disease. From the evidence the jury was justified in concluding that the representations made by the defendant’s president, were false, and that they were fraudulently made.
The defendant contends that the plaintiff should have-tendered back the $1,000 received by her, and cites 12 p. J., 355, in support of that contention. The defendant cites a. general rule. To that rule there are numerous exceptions. This action comes within one of these exceptions, as is shown by 12 C. J. 356, 357; and comes within the rule declared in Railway Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066. There, this court said that it was not necessary to tender back the amount received from a railroad company on account of personal injuries, for which a release had been signed on the payment of a stipulated sum of money. (See, also, Railway Co. v. Lovelace, 57 Kan. 195, 201, 45 Pac. 590.) Judgment in the present action was rendered for the difference between the amount paid and the face of the policy. That was proper. (Railroad Company v. Doyle, 18 Kan. 58.)
Complaint is made of the admission of evidence in behalf of the plaintiff tending to show that she was not a business woman; that she was in poor health; that she was in straitened financial circumstances; and that she was shocked at learning that her husbánd had made false statements, in the application for membership. The issue being tried was the false representations of the defendant. Evidence concerning the .subjects named was hardly material, but it cannot be said that the admission of that evidence was prejudicial. , .
The defendant requested certain instructions numbered 2, 3, 4, 5, and 6, says they were not given, and alleges error thereon. The difficulty with this complaint is that those instructions were, in substance, given by the court, and most of them were given in practically the language in which they were, requested.
The defendant complains of the following instruction:
“4. When the plaintiff’s deceased husband made application to the defendant for a beneficiary certificate, it was his duty to exercise good faith in answering the questions propounded in the application and not to practice any evasion, fraud or suppression of facts which would enable the officers of the defendant to determine whether he was an acceptable member, and the defendant had no right to complain of the answers and base a refusal thereon to pay the claim unless the evidence shows to the satisfaction of the jury that there was evasion or fraud practiced by the deceased and a purpose on his part to conceal some facts which the applicant naturally (under the circumstances) would suppose was contemplated by the question, which misled the defendant and it thereby issued the certificate which might not otherwise have been issued.”
The instruction involved good faith on the part of Carver. The defendant argues that good faith had nothing to do with its fraud. The representation was that Carver had falsely stated that he did not have arteriosclerosis nor Bright’s disease. The application contained the following:
“I hereby declare and warrant that I have answered all the questions in this application truthfully arid will submit and abide by these answers as to the validity of any policy that may be issued from the same.”
The instruction correctly stated the law. (Insurance Co. v. Woods, 54 Kan. 663, 39 Pac. 189; Farragher v. Knights & Ladies, 98 Kan. 601, 159 Pac. 3; Sharrer v. Insurance Co., 102 Kan. 650, 171 Pac. 622.)
Because of the nature of the false statements that Daniel. Gorman Carver was charged to have made in his application, it was proper to give the instruction.
Complaint is made of the following instruction given by the court:
“The law favors compromises and settlement of disputes between parties, . . . where no fraud or deception has been practiced and the settlement is fully understood and freely and voluntarily made and entered into.”
In Railroad Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066, this court, in substance, said that if a release of a railroad from further liability for personal injuries is fairly obtained and understandingly executed, it will constitute an effectual bar to recovery for injuries. In this and in other particulars, Railway Co. v. Goodholm is very similar to the present action, and on the proposition now under consideration it is controlling. There was no error in giving that instruction.
The court instructed the jury that:
“Physical weakness or mental worry alone, are not sufficient to avoid á settlement . . . ; neither are financial distress nor threat or fear of litigation alone sufficient to avoid a release.”
Complaint is made of the use of the word “alone.” The defendant does not point out wherein the instruction was wrong,. It does not appear to have been erroneous.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
NUSS, J.:
In 2002 the City of Wichita (City) acquired real property owned by Sealpak Company, Inc., (Sealpak) through condemnation. The City appeals the district court’s exclusion from evidence of a statement made by Sealpak’s owner in a 2000 property tax appeal concerning the value of Sealpak’s land. Our jurisdiction arises under K.S.A. 26-504, which allows direct appeals to the Supreme Court from any final order in an eminent domain proceeding.
The sole issue on appeal is whether the district court erred in excluding Smith’s statements. Because we hold that the court committed reversible error, we remand for a new trial.
FACTS
Sealpak is a producer of polysulfide sealants, which are primarily used to seal aircraft wings and other parts. On May 7, 2002, the City filed a petition to acquire Sealpak’s real property through condemnation under the Kansas Eminent Domain Procedure Act, K.S.A. 26-501 et seq. Pursuant to K.S.A. 26-504, tire district court appointed three appraisers who later valued the property at $450,000. On September 23, 2002, the City acquired Sealpak’s property.
Sealpak appealed the appraisers’ award to the district court. According to the pretrial order, the sole issue was “the amount of just compensation, i.e., the fair market value of the real property taken, by condemnation at the time of the taking.” Prior to trial, the City filed a motion in limine to exclude evidence regarding Sealpak’s unwillingness to sell and the cause of prior flooding of Sealpak’s property. Sealpak filed its own motion in hmine to exclude evidence about any property tax assessment or purported appraisals by Sedgwick County for tax purposes. The City opposed this motion, particularly as it would exclude a statement made in March 2000 by Sealpak’s owner, Donald Smith, that the value of the property was only $150,000.
The district court granted Sealpak’s motion.
Prior to voir dire, the court heard the City’s proffer of evidence. The only proffered witness was Smith, who stated that Sealpak had paid $28,000 for the land and spent another $315,000 to construct the building in 1970, for a total cost of $343,000. Sealpak had experienced considerable flooding problems with its building, which he believed that tire City had caused. Smith acknowledged, however, that Sealpak had unsuccessfully sued in 1994, claiming the City had caused the flooding.
Smith also testified during the proffer that the county tax valuation for the property had been approximately $150,000 for several years prior to 2000. He stated that in 2000, he had received a notice from the Sedgwick County Appraiser’s Office indicating that the appraised value was now $185,560. Smith appealed. On the appraiser office’s form he marked as the reason for appeal “Value is over market value,” and on the line stating “Owner s opinion of value” he stated, “$150,000.” His information was signed and dated March 22, 2000. Smith believed that the 2000 tax valuation should remain at $150,000 because of the flooding conditions. He later attended a hearing before the County Appraiser and again opined that the property value was $150,000. The County then lowered the valuation to $152,790.
Smith further proffered that at trial he would testify the fair market value of die property was $1.1 million. He admitted that no improvements had been made between his appeal dated March 2000 and the taking in September 2002. At the end of the City’s proffer, the court reiterated that the evidence was not admissible.
At trial, tire jury was presented with four property valuations. At the high end was Smith’s. He added his total land value of $444,312 ($2 per square foot) to a general contractor witness’ estimate of building replacement value less depreciation ($658,417), for a total of $1,102,729.
The next highest appraisal came from Sealpak’s expert, F. Lee Jones, a real estate appraiser. He used the market comparison approach and the cost approach to conclude the property was worth $850,000.
The next highest appraisal came from Grant Tidemann, a commercial real estate broker who had served as one of the three court-appointed appraisers. In testifying for the City, Tidemann used replacement cost as his standard and concluded that the property was worth $450,000.
The lowest appraisal in evidence came from Bemie Shaner, a real estate appraiser who testified for the City. Like Jones, he used both market comparison and the cost approaches; he concluded the property was worth $390,000.
The jury found that the value of the land on the date of the taking, September 23, 2002, was $712,500. Judgment was entered for Sealpak in the amount of $262,500, the difference between the jury’s verdict and the amount previously paid by the City pursuant to the appraisers’ award, plus interest. The City appealed.
ANALYSIS
Issue 1: Did the district court err in excluding evidence of state- merits regarding the valuation of property made by the property’s owner during a property tax appealP
Our first consideration when examining appellate challenges to a district court’s exclusion of evidence is relevance. See State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004). Generally, all relevant evidence is admissible. K.S.A. 60-407(f); State v. Meeks, 277 Kan. 609, 618, 88 P.3d 789 (2004). Relevant evidence is defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
It is well settled that a landowner is a competent witness to testify as to the value of his or her property. City of Wichita v. Chapman, 214 Kan. 575, 580, 521 P.2d 589 (1974). Accordingly, there can be no doubt that a landowner’s opinion of his or her property value is relevant in an eminent domain action in which the sole issue is fair .market value of the taken property. See K.S.A. 26-513(b) (If the entire tract of land is taken in an eminent domain proceeding, the measure of compensation is the fair market value of the property at the time of the taking.).
For the same reason, out-of-court statements made by the owner which are inconsistent with his or her valuation position at trial are relevant and can be admissible as admissions against him or her. See 5 Nichols on Eminent Domain § 18.12[1] (3d ed. 2003); K.S.A. 2004 Supp. 60-460(g) (admissions by parties); L. & W. Rly. Co. v. Butts, 40 Kan. 159, 19 Pac. 625 (1888). Indeed, this court has held: “Admissions against interest made by a party are the strongest kind of evidence and override other factors. [Citations omitted.]” Kraisinger v. C.O. Mammel Food Stores, 203 Kan. 976, 986, 457 P.2d 678 (1969).
According to Gard & Casad’s Kansas Code of Civil Procedure (4th ed.), K.S.A. 60-407 is our statutory acknowledgment of the “fundamental principle that the primary test of admissibility of evidence is its relevancy to the issue being investigated and that the trier of fact should have all of the relevant evidence which is offered unless some overriding consideration of policy or expediency requires its exclusion.” (Emphasis added.) 4 Gard & Casad’s Kansas C. Civ. Proc. 4th Annot. § 60-407 (2003). In the instant case, we therefore must review the reasons given by the district court for excluding from evidence otherwise relevant and admissible admissions against interest by a party, which we have held are “the strongest land of evidence.”
The district court explained its rationale for excluding Smith’s statements of $150,000 in property value as follows:
“And then there’s the defendant’s motion which . . . has to do with the . . . evidence concerning the appraisal.
“And I’ve read the briefs in this case and I think I’ve already noted the distinctions between the cases cited by Mr. Robison [Sealpak’s counsel] and the case cited by Mr. Rapp [City’s counsel]. But there is one other distinguishing factor, which was the appraisal process was 2000 [where Smith opined the value was $150,000] — and the date for this [value at time of City’s taking], I believe, is September of 2002. And nobody’s told me if there’s any evidence one way or the other that could account for any distinction or difference in value over that period of time, you know. . . . I can imagine what it would or would not be. But without you all having taken evidence or testimony or discovery on that, I agree, when the law says that, as a general rule, the appraisal should not come in. And I don’t dispute the Avery [v. City of Lyons, 181 Kan. 670, 314 P.2d 307 (1957)] decision, however, under the facts and circumstances of this case, the defendant’s motion in limine is going to be sustained.”
When asked to clarify its ruling, the court stated, “The City’s not going to be able to bring in either the ’99 or 2000 appraisal, nor will they be able to bring in his statement of value at 150,000.”
Sealpak had argued to the district court, and continues to argue on appeal, that Smith’s opinion of the value of $150,000 was inadmissible because it was made in a property tax proceeding, citing Mettee v. Urban Renewal Agency, 213 Kan. 787, 518 P.2d 555 (1974). The City had responded, and continues to argue on appeal, that the statements were admissions by Sealpak and therefore admissible as an exception to the general rule, citing Avery v. City of Lyons, 181 Kan. 670, 314 P.2d 307 (1957). As noted, the district court reviewed both decisions before making its decision.
In Mettee v. Urban Renewal Agency, 213 Kan. 787, this court agreed with the district court’s ruling that had excluded evidence of the tax assessed on the property at issue. “[Ajssessed valuation of property for tax purposes is not admissible to establish the value of the property.” 213 Kan. at 789. The Mettee court quoted from Love v. Common School District, 192 Kan. 780, Syl. ¶ 1, 391 P.2d 152 (1964): “An appraisal of real estate made by a third party not available for cross-examination is not admissible in evidence to establish the value of that property even though the figures from such appraisal be recorded on a document filed in a public office.” As further support, the Mettee court quoted from 5 Nichols on Eminent Domain § 22.1 (3d ed.):
“ ‘It is almost everywhere the law that the value placed upon a parcel of land for the purposes of taxation by the assessors of the town in which it is situated is no evidence of its value for other than tax purposes. This rule of exclusion has been applied in the determination of value in eminent domain proceedings. . . . The assessment is res inter alios acía, and is inadmissible upon general principles of the law of evidence. Such evidence has been rejected on the ground that the assessed value is based on a valuation for a different purpose, and that it represents an ex parte statement of the assessor which is not subject to cross-examination. Although the assessment roll, considered as a public document, has been admitted in actions other than condemnation proceedings, as an exception to the hearsay rule, even as evidence of value, the rule of exclusion has been justified as a rule of practicably. Although the assessor is required to appraise the value of die properly, it is an open secret that the assessment rarely approaches the true market value.’ ” (Emphasis added.) 213 Kan. at 788-89.
On the other hand, in Avery v. City of Lyons, 181 Kan. 670, this court held that it was error to exclude from evidence personal property tax-assessment sheets given to the county clerk by the owner of a store building later damaged by fire. Plaintiffs’ assessment sheets revealed he had provided values considerably less than the values to which he testified at trial. The court acknowledged that property assessments rarely reflect the actual market value of the property and that the stock of merchandise may fluctuate from day to day. It nevertheless found that the evidence was admissible, citing 31 C.J.S., Evidence § 283; 20 Am. Jur., Evidence § 385; and several articles in the A.L.R. See 181 Kan. at 673-74. As in the instant case, the Avery court observed that the values at the time of the property destruction were directly and specifically in issue and that the tax assessment sheets had been signed and filed by one of the plaintiffs. 181 Kan. at 673.
The Avery and Mettee holdings can be reconciled as evidenced by an A.L.R. article cited by the Avery court titled “Valuation for taxation purposes as admissible to show value for other purposes.” It states:
“ ‘Although, as previously indicated, assessed valuation, as such, is not generally admissible on the question of the value of property, an owner’s valuation of his own property, or a valuation in which he has participated, for tax purposes, is usually held admissible in proceedings other than tax proceedings where the value of the property is in issue, in most instances on the ground that the owner’s valuation constitutes an admission against interest, where he seeks to establish a higher value for a purpose other than taxation.’ ” 181 Kan. at 674 (citing 39 A.L.R.2d 209, p. 230).
5 Nichols on Eminent Domain § 18.12[1] (3d ed. 2003) is in accord:
“Statements made by or attributable to the owner which are inconsistent with his valuation position at trial are admissible as admissions. They are thus considered exceptions to the hearsay rule of exclusion, and may be introduced by the condemning authority as substantive evidence of value.
....
“Statements of the owner, which may become admissions . . . [include]
....
“(6) a statement made to the tax assessor that his property is not as valuable as the assessment.”
In light of these authorities, we hold admissible the statements by defendant Sealpak’s owner, in property tax proceedings, that the County’s appraised value of $185,560 was “over market value” and that “Owner’s opinion of value” in March 2000 was $150,000. More specifically, we reject Mettee and Love as inapplicable under our facts, i.e., the excluded valuations at issue here were not made by third parties unavailable for cross-examination.
Because the evidence was relevant and otherwise admissible, and because the rule in Mettee and Love does not apply, other bases must exist to support exclusion. See 4 Gard & Casad’s Kansas C. Civ. Proc. 4th Annot. § 60-407 (2003). Sealpak suggests that the district court exercised its discretion and excluded the evidence because the probative value of the admission was outweighed by the substantial prejudice it would cause to Sealpak. See K.S.A. 60-445; State v. Dreiling, 274 Kan. 518, 549, 54 P.3d 475 (2002). The district court, however, made no mention of this weighing as the basis for its ruling.
Moreover, while property improvements occurring between the two valuation times can be a basis for excluding the earlier valuation, see Love v. Common School District, 192 Kan. 780, the district court observed that no evidence of improvements had been presented. As stated previously, Smith had testified at the proffer hearing that no improvements had been made between March 2000 and September 2002. Accordingly, property improvements do not provide a valid basis for exclusion.
With no basis for the exclusion, the remaining determination is whether the exclusion was harmless or reversible error. Sealpak contends that for the City to receive a new trial, the City must show it was prejudiced. This rule is effectively set out in K.S.A. 60-261:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” (Emphasis added.)
Here, the jury was presented with 2002 valuations of $1,100,000 by Smith; $850,000 by Jones; $450,000 by Tidemann; and $390,000 by Shaner. It was not allowed to hear the lowest valuation — $150,000 by Smith in 2000 — and found the value of the property to be $712,500. Had the jury been allowed to hear Smith’s earlier valuation, his admission could have impacted the jury’s deliberations. Kraisinger v. C.O. Mammel Food Stores, 203 Kan. at 986 (admissions against interest by a party are the strongest kind of evidence).
The jury could have found that Smith’s widely varying opinions made him incredible and could have entirely discounted his testimony. See 5 Nichols Eminent Domain § 18.12[1] (“In addition to serving as substantive evidence of value, the owner’s admissions may be tendered for impeachment purposes should the owner testify on the issue of valuation.”); Welton v. Iowa State Highway Com., 211 Iowa 625, 635, 233 N.W. 876 (1930) (out-of-court state ments by plaintiff of his farm value to the tax assessor, which contradict his testimony, are admissible and did affect his credibility).
Smith’s lost credibility could also have affected the jury’s view of the weight and credit to be given the testimony of his only other witness, an expert whom he had hired, whose appraisal was $400,000 greater than, and almost double that of, the next highest appraiser’s valuation. See PIK Civ. 3d 102.20; PIK Civ. 3d 102.50 (“The testimony of experts is to be considered like any other testimony and is to be tried by the same tests, and should receive such weight and credit as the jury deems it entitled to, when viewed in connection with all the other facts and circumstances, and its weight and value are questions for the jury.” [Emphasis added.]).
Even were the jury to actually consider Smith’s low valuation along with all other evidence in formulating its verdict, problems still remain. Its $712,500 verdict was closer to Sealpak’s two appraisals of $1,100,000 and $850,000 than the City’s two appraisals of $450,000 and $390,000. A jury factoring in Smith’s low evaluation most likely would render a verdict lower than the one rendered without it. In short, under these circumstances, we conclude “it would ignore human realities” to say that the valuation of $150,000 could not have affected the jury’s verdict. Love v. Common School District No. 28, 192 Kan. at 784.
Similarly, in the pre-K.S.A. 60-261 case of L. & W. Rly. Co. v. Butts, 40 Kan. at 161, the court reversed and remanded for new trial a judgment for the landowner in a condemnation proceeding because of erroneous exclusion of his out-of-court statements to the appraisers. Although the landowner’s testimony on value was “nearly the same” as other witnesses, it apparently was greater than what he had told the appraisers.
Accordingly, we hold that the failure to allow Smith’s 2000 valuation into evidence affected the City’s substantial rights.
Finally, the parties devoted considerable attention to what Smith would or would not be permitted to discuss as an explanation for his $150,000 valuation. Since his valuation is an admission against interest, he has the right to offer an explanation, including that prior flooding was the cause. See Avery v. City of Lyons, 181 Kan. at 673; Raines v. Central States Fire Ins. Co., 136 Kan. 506, 508, 16 P.2d 485 (1932); 5 Nichols Eminent Domain § 18.12[1] (because an owner s admission against interest is not conclusive but, rather, constitutes substantive evidence of value, the owner is free to introduce evidence in explanation of the circumstances attending the admission).
Toward that end, concern has been expressed that Smith’s testimony could lead to a “trial within a trial” regarding the flooding. We disagree. Smith is entitled to explain that his low valuation was based upon flooding problems. However, he is barred from blaming the City, as this issue was determined adversely to him and his company in the 1994 litigation.
Reversed and remanded for a new trial.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a habeas corpus action brought by Michael A. Bankes, a prisoner in the Hutchinson Correctional Facility (HCF). Bankes was convicted of indecent liberties with a child and sentenced to 4 to 15 years in prison in 1990. Some time after his sentencing, Bankes’ unit team at the HCF recommended that he participate in the Sexual Abuse Treatment Program (SATP). In order to be admitted into SATP, Bankes was required to admit guilt for the crime of which he was convicted. This admission of guilt, along with any other information which Bankes conveyed to SATP counselors, could be turned over to authorities and used against Bankes in future proceedings. Due to this required admission of guilt, Bankes refused to participate in SATP. As a result of his refusal to participate in SATP, Bankes’ privilege incentive level was reduced from a level 2 to a level 1, pursuant to the Kansas Department of Corrections Internal Management Policies and Procedures (IMPP) Rule 11-101 (1998). Because of this reduction in his privilege incentive level, Bankes lost his personal TV and certain canteen privileges. Moreover, for each program review period in which Bankes refused to participate in the recommended SATP, he did not receive any good time credits pursuant to K.A.R. 44-6-124. This denial of good time credits resulted in an extension of Bankes’ parole eligibility date and his conditional release date. Both IMPP 11-101 and K.A.R. 44-6-124 were amended to create this outcome after Bankes had been sentenced and served part of his sentence. Based on these consequences for his refusal to participate in SATP, Bankes filed a petition for habeas corpus in Reno County District Court, alleging that K.A.R. 44-6-124 violated his privilege not to incriminate himself and constituted an ex post facto law. The Reno County District Court dismissed Bankes’ habeas corpus petition for failure to state a claim. Bankes appealed this ruling to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Bankes’ 4- to 15-year sentence did not include any order for Bankes to participate in any kind of psychological or psychiatric treatment for sexual offenders. The Kansas Department of Corrections (KDOC) placed Bankes in the HCF. At the time of his placement with the HCF, Bankes was not ordered to participate in any kind of psychological or psychiatric counseling for sexual offenders.
Further, at the time Bankes was sentenced to prison, KDOC had set out regulations in K.A.R. 44-5-104 and K.A.R. 44-5-105. K.A.R. 44-5-105 required that all inmates incarcerated in a KDOC facility be subject to a program plan conducted by a unit team within 1 month of an inmate’s admission into prison. The plan could assign an inmate to participate in a certain program, but “the inmate [could] not be penalized for refusal to participate in a formal program plan.” K.A.R. 44-5-104 classified the security level of the inmate. The inmate’s security level determined his supervision requirements and his allowable privileges and freedoms. The factors necessary to determine an inmate’s security level, pursuant to K.A.R. 44-5-104, and the supervision and privileges associated with each level were set out in the Secretary of Corrections’ Internal Management Policies and Procedures manual (IMPP).
On February 9, 1993, and July 11, 1994, Bankes’ program plan •was reviewed by his unit team. These reviews did not order Bankes to attend a program for sexual offenders, and it classified Bankes as a medium security inmate pursuant to K.A.R. 44-5-104.
Good time credits are applied to an inmate’s minimum sentence to determine his or her parole eligibility date and are applied to the inmate’s maximum sentence to determine his conditional release date. K.A.R. 44-6-101(g), (m); K.A.R. 44-6-108. Upon reaching the conditional release date, an inmate is entitled to be released. See K.S.A. 22-3718; Beck v. Kansas Adult Authority, 241 Kan. 13, 29, 735 P.2d 222 (1987).
K.A.R. 44-6-108(c) (1989), which was in effect when Bankes committed his crime, stated, in pertinent part, that “[t]o establish the conditional release date, good time credits, not forfeited, shall be presumed earned and shall be applied to the maximum sentence term when first computed.” (Emphasis added.) Thus, it was presumed for the purpose of conditional release that the inmate earned all available good time credits, and his or her conditional release date was predicated on that presumption. For parole eligibility; on the other hand, no such presumption applied, and the credits were tallied as earned to establish parole eligibility. See K.A.R. 44-6-108(b) (1989).
K.A.R. 44-6-124 (1989) provided guidelines for awarding good time credits for parole eligibility. No guidelines for the award of good time credits for conditional release were necessary, as 100% was presumed. The regulation stated:
“(1) Inmates with no class I offenses during the review period shall receive at least 50% of good time credits allocated for that period.
“(2) Inmates with no class I or II offenses during the review period shall receive at least 60% of the good time credits allocated for that period.
“(3) Inmates with no class I, II, or III offenses during the review period shall receive at least 70% of the good time credits allocated for that period.
“(4) Inmates with no class I, II, III or IV offenses during the review period shall receive at least 80% of the good time credits allocated for that period.
“(5) The balance of the credits above the percentages listed in paragraphs (a)(1) to (a)(4) shall be awarded by the unit team based on factors of good work, behavior, and on other performance factors related to effective rehabilitation of the inmate.” K.A.R. 44-6-124(a) (1989).
The regulation went on to further provide that the unit team had the discretion to refuse to award all or part of the portion of credits for which it had discretion based on an inmate’s refusal to participate in recommended programs. K.A.R. 44-6-124(b) (1989).
K.A.R. 44-6-125(b) provided for the forfeiture of those good time credits “earned” for parole eligibility as well as those used to “create the conditional release date.” It stated:
“Forfeit only on minimum until parole eligibility. Prior to parole eligibility, forfeited good time credits shall be subtracted from the amount of good time credits earned toward the parole eligibility only, and not from those credits used to create the conditional release date. After parole eligibility is established, forfeited credits shall be subtracted from the credits used to form the conditional release date.” K.A.R. 44-6-125(b)(1989).
Thus, for purposes of parole eligibility, an inmate under the system as it existed at the time of Bankes’ conviction was forced to earn his or her good, time credits toward parole eligibility, while good time credits for a conditional release date were awarded at the outset. For the purposes of earning parole eligibility, an inmate with no class I offenses during the review period would receive at least 50% of the good time credits for that period. An inmate with no class I, II, III, or IV offenses was guaranteed to receive at least 80% of the allocated good time credits. The balance of the credits were discretionary and could be awarded or not awarded for failure to participate in a program.
In January 1995, KDOC amended K.A.R. 44-6-124 to its present form. In pertinent part, it provided that “[a] refusal by an inmate to constructively work or participate in assigned programs shall result in the withholding of 100% of the good time credits for that program classification review period, unless the inmate is determined by the facility health authority to be physically or mentally incapable of working or participating in a particular program or detail.” K.A.R. 44-6-124(g)(6). K.A.R. 44-6-142 was also amended and now provides that, rather than all available good time credits being presumed earned for purposes of conditional release, such credits were now subject to being earned as the sentence progressed, in the same manner as used for the calculation of parole eligibility.
In addition to these regulatoiy amendments, the Secretary of Corrections also revised the Department’s internal management policies and procedures. Under IMPP 11-101, KDOC defined a new privilege incentives level system, the factors necessary to move up or down an incentive level, and the supervision and privileges associated with each level. This revised IMPP 11-101 is called the “Level System,” and it created a system of incentives and privileges to encourage inmates to participate in programs. Under the level system, there are three levels at which an inmate can be classified. Under level 1, inmates can watch the general TV and spend $20 per payroll period at the canteen. Under level 2, an inmate can have a personal TV, and the inmate can spend $80 per payroll period at the canteen. Obviously, the higher the level at which an inmate is classified, the more privileges and liberties the inmate receives. Under IMPP 11-101, if an inmate is assigned to participate in a certain program and the inmate refuses, then the inmate can be moved down an incentive level and lose the privileges associated with the higher level.
In 1995, Bankes participated in a 120-day program plan review by his unit team. He was assigned to participate in SATP. Bankes refused to voluntarily sign the program review or to participate in SATP. Pursuant to K.A.R. 44-6-124, 100% of Bankes’ good time credits for this review period were withheld due to his refusal to participate in the assigned program.
At his next program review, the unit team again suggested that Bankes participate in SATP. Bankes continued to refuse to participate in such treatment. Pursuant to K.A.R. 44-6-124, 100% of Bankes’ good time credits were again withheld due to his refusal to participate in SATP. Eventually, Bankes was reclassified, under IMPP 11-101, from a level 2 of privileges and incentives to a level 1, due to his refusal to participate in SATP, and Bankes lost the privileges associated with a level 2.
One of the main reasons Bankes refused to participate in SATP is that SATP requires each offender to “accept responsibility for the offense in which he was involved.” In order to voluntarily be admitted into SATP, the program requires that the offender admit guilt to the crime of which he or she was convicted. As the SATP admission document states:
“This is to confirm that I understand the criteria for being accepted into the S.A.T.P. (Sexual Abuse Treatment Program) at Hutchinson Correctional Facility, which includes an admission of Guilt for my sex crime. I realize that I am being allowed to participate in an evaluation for acceptance into S.A.T.P. with the understanding that I followed through with an Admission of Guilt. This document will serve as my official Admission of Guilt to the following: [space provided for the inmate to write in the crime to which they are admitting guilt].”
Bankes objected to this admission of guilt requirement and refused to participate in SATP because of this requirement. At trial, Bankes denied that he committed the crime. Bankes continues to deny that he committed the crime and is currently pursuing an appeal of his conviction in federal court. According to Bankes, confessing guilt for the purpose of admission into SATP would jeopardize his appeal and subject him to perjury charges based on his testimony at trial.
In addition to requiring an admission of guilt for the crime for which the inmate is convicted, SATP also requires a participant to sign releases allowing the disclosure of confidential information gained by the SATP staff to KDOC personnel, the Kansas Parole Board, and HCF-SATP coordinator and staff.
Further, SATP requires participants to submit to polygraph testing as a part of the “treatment process.” An unwillingness to participate in the polygraph testing as a part of the treatment is considered a violation of the program agreement and can result in the termination of SATP treatment. Prior to taking a polygraph test, the SATP participant must provide an admission of guilt in his or her own words, an autobiography, a complete sexual history, and a complete confidential polygraph questionnaire. The polygraph results are only to be used for therapeutic purposes and are not to be used to determine guilt or innocence.
Finally, SATP requires participants to submit to a plethysmograph examination to evaluate the inmate’s sexual arousal intensity and interests. Although the plefhysmograph testing is voluntary, if the inmate should refuse to complete the evaluation or fail to cooperate with the evaluation, it will be noted and reported to the SATP treatment team and may constitute grounds for termination from the program.
In 1994, the Kansas Legislature enacted K.S.A. 59-29a01 etseq., the Kansas Commitment of Sexually Violent Predators Act. Under this Act, if KDOC has information about an inmate convicted of a sexually violent offense which indicates that the inmate has a mental abnormality or personality disorder and meets the criteria for a sexually violent predator, then KDOC must give written notice of this information to the Attorney General before the inmate is released from prison so that the Attorney General can evaluate whether the inmate is a sexually violent predator and, if so, pursue commitment proceedings. KDOC is required to turn over this information even if it was gained through SATP. K.S.A. 1997 Supp. 59-29al6; K.S.A. 1997 Supp. 59-29a03.
The effect of the amendments to IMPP 11-101 and K.A.R. 44-6-124 on Bankes has been substantial. Prior to his refusal to participate in SATP, Bankes was assigned to a level 2 incentive level. Under this level, he was allowed his own personal TV and was allowed to spend $80 per pay period at the canteen. However, once Bankes refused to participate in SATP, his incentive level was reduced from a level 2 to a level 1 pursuant to IMPP 11-101. This reduction in incentive level resulted in Bankes losing access to his own personal TV and only being allowed to spend $20 per pay period at the canteen. Further, the amendments to K.A.R. 44-6-124 have affected both Bankes’ parole eligibility date and his conditional release date. Prior to the 1993 amendment, his conditional release date was fixed by the presumption that all available good time credits were earned. Thereafter, that date could only be changed if he lost credits for committing offenses. However, under the 1993 amendment, Bankes became subject to a mandatory loss of 100% of his good time credits for failing to participate in a program. Thus, if he failed to participate, he would stop earning good time credits, and for every good time credit he failed to earn, his conditional release date would be extended. Thus, Bankes is now forced to earn good time credits toward conditional release, whereas under the prior regulations, he could only lose them for his improper behavior. He is also forced to earn good time credits toward parole eligibility, whereas previously he was guaranteed at least a percentage (80%) of available credits should he not have any Class I, II, III, or IV offenses.
The withholding of Bankes’ earned good time credits lengthens his sentence for each plan review period he continues to refuse to participate in SATP. Thus far, KDOC’s action has lengthened his parole eligible date from November 26, 1994, as of February 9, 1993, to at least November 8, 1998, as of June 21, 1996, assuming he earns all his future good time credits by participation in SATP. His conditional release date has been lengthened from November 11, 2009, at the time of his incarceration, to at least May 5, 2011, as of November 5, 1996, assuming he earns all future good time credits. Bankes’ release date, without receiving any future good time credits due to his continued refusal to participate in SATP, is July 21, 2024. This increase in jail time results from his refusal to participate in SATP, which requires him to not only admit to the crime he was convicted of, but to admit to other possible violations of the law by providing a complete sexual history to his SATP therapists. Should Bankes make these admissions, they can be released to law enforcement agencies without any guarantee that they will not be used against Bankes in any future criminal proceeding.
On December 26, 1996, Bankes filed this habeas corpus action in the District Court of Reno County against his unit team members, the HCF warden, and the Secretary of KDOC. In this action, Bankes claims that KDOC’s requirement that he admit guilt for the crime of which he was convicted and participate in SATP violates his privilege not to incriminate himself as embodied in the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Further, Bankes asserts that K.A.R. 44-6-124, which mandates KDOC to withhold his good time credits for refusing to participate in SATP, constitutes an ex post facto law by increasing the punishment for a crime for which he had already been convicted. The District Court of Reno County dismissed Bankes’ habeas corpus petition for failure to state a claim for which relief could be granted. Bankes appealed.
I. FIFTH AMENDMENT
“Proceedings on a petition for writ of habeas corpus filed pursuant to K.S.A. 60-1501 are not subject to ordinaiy rules of civil procedure. To avoid summary dismissal of a K.S.A. 60-1501 petition, allegations must be made of shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Swisher v. Hamilton, 12 Kan. App. 2d 183, Syl. ¶ 1, 740 P.2d 95 (1987), rev. denied 242 Kan. 905 (1987).
The question of whether K.A.R. 44-6-124 violates Bankes’ privilege not to incriminate himself or whether it is an ex post facto law is a question of law. The district court found there was no merit to this question and dismissed Bankes’ habeas corpus petition for failure to state a claim. However, “this court’s review of conclusions of law is unlimited.” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Thus, the district court’s conclusions are not binding on this court.
The Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights provide identical language that “[n]o person 'shall be compelled in any criminal case to be a witness against himself.’ ” The Kansas Supreme Court has ruled that the provisions of § 10 of the Kansas Constitution Bill of Rights grant no greater protection against self-incrimination than does the Fifth Amendment to the United States Constitution. The purpose of the constitutional provisions, both state and federal, is to prohibit the compelling of self-incriminating testimonial or communicative acts from a party or a witness.
The Fifth Amendment not only permits a person to refuse to testify against himself at a criminal trial in which he is the defendant, but also “privileges him not to answer official questions in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), reh. denied 466 U.S. 945 (1984); Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 94 S. Ct. 316 (1973). In all such proceedings:
“a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. . . . Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution.” Lefkowitz, 414 U.S. at 78; see Minnesota v. Murphy, 465 U.S. at 426.
In Allen v. Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986), the defendant challenged the Illinois State Sexually Dangerous Persons Proceedings Act. The defendant was charged with committing the crimes of unlawful restraint and deviant sexual assault. The State of Illinois filed a petition to have the defendant declared a sexually dangerous person under an Illinois involuntary commitment procedure. Two psychiatrists testified at the commitment trial and gave an opinion as to the defendant’s sexual dangerousness. Based in part on this testimony, the trial court committed the defendant as a sexually dangerous person. The defendant appealed his commitment to the United States Supreme Court. The Court held that the Illinois proceeding for involuntary commitment of a sexually dangerous person was a civil proceeding, as opposed to a proceeding of a “criminal” nature. Therefore, it concluded, the defendant’s Fifth Amendment privilege against self-incrimination did not apply to him during such proceedings; thus, his Fifth Amendment privilege was not violated. However, in upholding the statute, the United States Supreme Court specifically noted that the Illinois Supreme Court had ruled that a person the State attempts to commit under the Act is protected from the use of his or her compelled answers in a psychiatric evaluation in any subsequent criminal case, as opposed to civil, in which he is the defendant. 478 U.S. at 368.
In Kansas, as in Illinois, commitment as a sexually violent predator is a civil proceeding, not a criminal proceeding. Since the Fifth Amendment does not apply in civil settings, the petitioner’s compelled information required by SATP can be used against him in a civil commitment proceeding as a sexually violent predator. The Allen case does not allow the use of compelled information in future criminal cases — other sex crimes, perjuiy, etc. — but it does allow use of the compelled information in future civil cases, such as a commitment for a sexually violent predator.
In view of our ruling this day in Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227 (1998), that the 1993 amendment to K.A.R. 44-6-124(g)(6) violated the Ex Post Facto Clause to the United States Constitution, we follow that decision. Later in this case, we find that many of the defendant’s arguments concerning the Fifth Amendment are moot.
The United States Supreme Court has held that the Sexual Predator Act, allowing a person’s confinement for treatment as a violent sexual offender, is civil in nature; thus, the Fifth Amendment to the United States Constitution does not apply. We see no valid reason to interpret § 10 of the Kansas Constitution Bill of Rights any differently. This, however, does not end our inquiry. The question remains as to information the defendant must furnish which subsequently can be used against him in a criminal proceeding. The State of Kansas must either give the defendant immunity from prosecution, or be subject to the well-recognized policies behind the privilege of self-incrimination and the legitimate need of governments to protect its children. Thus, if the State coerces a defendant into furnishing possible incriminating testimony by giving a prisoner no choice but to furnish incriminating information or serve a longer sentence for failure to do so, the State may not use that information or its fruits in subsequent criminal proceedings. See Lefkowitz v. Turley, 414 U.S. 70; Allen v. Illinois, 478 U.S. 364. We again note that the coerced information can be used in a civil proceeding, subject to the rules of evidence.
The housing assignment given to an inmate, his or her custody classification, granting of parole, spending fimitations at a canteen, regulation of visiting hours, withholding of good time awards, and regulation of other daily activities which are not atypical and do not pose a significant hardship within a prison, do not involve a liberty interest or violate the defendant’s Fifth Amendment right by compelling him to incriminate himself and participate in SATP. See Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996); Lile v. Simmons, 23 Kan. App. 2d 1, 929 P.2d 171 (1996); Gilmore v. McKune, 22 Kan. App. 2d 167, 915 P.2d 779 (1995); Davis v. Finney, 21 Kan. App. 2d 547, 902 P.2d 498 (1995).
In State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991), the question, similar to the one in the case at hand, was whether an inmate could be compelled, as a prerequisite to admission in a sexual therapy program, to admit guilt, where completion of such a program was required in order to allow him to keep his suspended sentence. 249 Mont, at 83. The Montana Supreme Court found that compelling the inmate to do so would cause a Fifth Amendment violation, absent any grant of immunity for the statements. 249 Mont, at 91. In so finding, the Montana Supreme Court reasoned:
“Even though the defendant has already been convicted of the crime that he denies, our system still provides, as noted in [Thomas v. United States, 368 F.2d 941 (5th Cir. 1966)], for opportunities to challenge that conviction. For example, the defendant still had the right to challenge his conviction, based on newly discovered evidence, or by collateral attack. These are important rights guaranteed to every defendant under our criminal justice system, but would be rendered meaningless if the defendant could be compelled to admit guilt as a condition to his continued freedom. Furthermore, while such a defendant would be foreclosed from invoking the protection of such procedures to establish his innocence, the reliability of an admission of guilt under such circumstances would be highly suspect. In addition, by admitting guilt in this case, the defendant would have to abandon his right guaranteed by the Fifth Amendment, not only as to the crime for which he has been convicted, but also to the crime of perjury. He testified in his own defense during his trial and denied committing the offense with which he was charged.” 249 Mont, at 90-91.
Upon analyzing questions in conjunction with an inmate’s probation, the United States Supreme Court noted in Minnesota v. Murphy:
“Our cases indicate, moreover, that a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationer’s ‘right to immunity as a result of his compelled testimony would not be at stake’. [Citations omitted.]” 465 U.S. at 435 n.7.
Thus, respondents, in administering their Sexual Abuse Treatment Program, can insist that the petitioner admit responsibility, so long as his or her admission is not used against the petitioner in later criminal proceedings.
This is not a terribly satisfactory outcome. Bankes stands convicted of the offense, but maintains his innocence. He would consequently be forced to admit guilt which he does not acknowledge in order to participate in SATP and to keep his level 2 privileges. Whether Bankes and society will benefit from Bankes’ treatment under those circumstances is not for the court to decide in this case. However, this situation does not appear to rise to the level of a Fifth Amendment violation; thus, this issue fails.
II. EX POST FACTO
Bankes argues that K.A.R. 44-6-124 constitutes an ex post facto law. According to Bankes, this regulation imposes an additional punishment on him after he had already been sentenced for the crimes of which he was convicted.
This issue has been decided on this day in Stansbury, 265 Kan. 404. To the reasoning in that case, we would add that trial judges are aware of conditional release dates and how they are computed. When the defendant was sentenced, most trial judges would have considered the maximum time the defendant would have to serve in setting the sentence.
For the reasons set forth in Stansbury, the application of K.A.R. 44-6-124 by KDOC to Bankes, due to his refusal to participate in SATP, violates the ban on ex post facto laws contained in the United States Constitution. Thus, as to the ex post facto issue only, the trial court’s dismissal of Bankes’ habeas corpus petition for failure to state a claim is reversed.
McFarland, C.J., concurring and dissenting: I dissent from the majority opinion’s determination that K.A.R. 44-6-124 constitutes an ex post facto law in reliance upon Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227 (1998). I concur with the balance of the majority opinion.
Lockett, J., concurring and dissenting: I dissent from the majority’s determination that withholding good time credits from a person who claims to be innocent and will not acknowledge guilt in order to participate in sexual abuse treatment program does not rise to the level of a Fifth Amendment violation. The majority requires an individual who may or may not be innocent to serve a longer sentence than those who admit guilt. Punishing Bankes for refusing to admit guilt is not violative of Bankes’ constitutional rights under the Fifth Amendment, it is violative of Bankes’ constitutional equal protection and due process rights under the Fourteenth Amendment.
I concur with the balance of the majority opinion.
ALLEGRUCCI, J., joins in the concurring and dissenting opinion of Lockett, J. | [
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The opinion of the court was delivered by
Larson, J.:
In this case we must decide who suffers the loss after an attorney improperly obtained settlement drafts from two insurance companies, forged his client’s endorsement on the checks, deposited the checks in his trust account, and then converted the funds. The question arises in the context of a suit for conversion by the client, Jerry C. King, against his Kansas attorney, John L. White, the insurance companies Auto-Owners Insurance Company (Auto-Owners) and American Family Mutual Insurance (American Family), and the depository bank, Commerce Bank, N.A. (Commerce).
The trial court granted summary judgment in favor of King against all defendants but . ultimately held that the loss falls upon Commerce, although granting judgment against White, who is currently incarcerated. The trial court further determined that King was only entitled to recover a two-thirds interest in the drafts due to his contingency fee agreement with White.
The appeals and cross-appeals raise numerous issues, most of which pertain to interpretations of Article 3 of the Uniform Commercial Code (UCC): (1) Does the impostor defense of K.S.A. 84-3-404(a) protect a depository bank that paid the instruments in good faith? (2) If the impostor defense is applicable, does it also protect a drawee of an instrument who pays in good faith? (3) Does King’s ratification of the settlement agreements also ratify White’s actions in endorsing and depositing the instruments representing the settlement proceeds? (4) May the true payee of a draft sue the drawee for paying on a forged endorsement when the payee has also sued the collecting bank? (5) Does Article 3 of the UCC permit conversion liability for nonbank drawees? (6) May King recover for conversion of a draft payable to the estate of King’s wife? (7) Is King required to bear the loss occasioned by the wrongful conduct of his agent? (8) Is an attorney entitled to a contingency fee after entering into an unauthorized settlement agreement and fraudulently endorsing and converting the settlement proceeds?
Factual statement
Jerry C. King and his wife, Judith, were involved in an automobile accident in January 1994. King sustained personal injuries in the accident, but his wife was killed. King employed White to represent him in his claims for personal injuries and wrongful death.
Although King and White did not enter a written agreement regarding White’s representation, the essential terms of the representation are not disputed. White was to pursue King’s claims or causes of action with respect to possible recovery against the State of Alabama, the driver of the other vehicle, and the owner of the vehicle. In exchange, White was to receive one-third of the amounts recovered.
White negotiated a policy-limits settlement of $25,000 for King’s wrongful death claims and $3,500 for his personal injury claims with Auto-Owners, the.insurance carrier of the driver of the other vehicle involved in the accident. White also negotiated a settlement with American Family for the full amount of underinsured motorist benefits available under King’s policy. White represented to both insurance companies that he was authorized to act on King’s behalf, although King had not authorized settlement with either party and was unaware that settlements had been reached.
Auto-Owners drew a draft payable through Michigan National Bank (MNB) in the amount of $28,500, copayable to King, individually and as surviving spouse of Judith, and to White. American Family drew a draft payable through United Missouri Bank, Northwest (UMB) in the amount of $25,000, copayable to White and the Estate of Judy King.
White received the drafts, endorsed his name, forged King’s signature on the drafts without King’s knowledge or consent, and deposited the drafts into his trust account at Commerce. Commerce granted provisional credit to White’s trust account and presented them to the “payable through” banks for final payment. Auto-Owners and American Family authorized payment of the drafts. White later withdrew the proceeds of the drafts from his Commerce trust account and converted them to his own use. White did disburse $2,257.84 to King for his share of the $3,500 personal injury settlement after deducting his contingency fee and expenses, but King remained unaware of the remaining settlement amounts.
After King discovered these events, he filed suit alleging counts of fraud against White and conversion against White, Commerce as depository bank, MNB and UMB as drawee banks, and American Family and Auto-Owners as drawers or nonbank drawees. White confessed judgment, and judgment was entered against him. The remaining defendants filed cross-claims and motions to dismiss, and Commerce, the insurance companies, and King all moved for summary judgment. King dismissed his claims against MNB and UMB after it was established they were collecting banks rather than drawee banks.
In ruling on the motions for summary judgment, the trial court found Commerce was the depository bank for both drafts pursuant to K.S.A. 84-4-105(2); MNB and UMB were intermediary or collecting banks pursuant to K.S.A. 84-4-105(4) and (5) and K.S.A. 84-4-106(a)(l); Auto-Owners and American Family were makers/ drawers pursuant to K.S.A. 84-3-103(3) and (5) and also drawees pursuant to K.S.A. 84-3-103(2) and K.S.A. 84-4-104(a)(8).
The trial court ruled that K.S.A. 84-3-404, pertaining to impostors, did not govern the liabilities of the case because White did not act as an impostor within the meaning of the statute. The court held Commerce liable to King pursuant to K.S.A. 84-3-420(a) as a depository or payor bank which took an instrument bearing a forged endorsement. The court also held the insurance companies liable to the payee due to their status as drawees pursuant to K.S.A. 84-3-420(a). The court found MNB and UMB not liable through their status as collecting banks.
The court determined that the extent of King’s interest in the forged instruments was the amount of the drafts less White’s attorney fees. The court also found that although King’s action for conversion of the drafts may constitute ratification of the settlement agreements, it did not constitute ratification of White’s separate wrongful act of forging King’s endorsement and converting the draft amounts. The court further rejected a claim that King must bear the loss occasioned by the wrongful conduct of his agent and a claim that King released one of the insurance companies. The court concluded King was not required to elect his remedy and was not barred from pursuing actions against the remaining defendants after suing White and the collecting banks.
The court found that Commerce, Auto-Owners, and American Family were entitled to indemnity from White and that the insurance companies were entitled to indemnity from Commerce pursuant to K.S.A. 84-3-417, the presentment warranty statute. The court also found that Commerce and the insurance companies were jointly and severally liable to King on the drafts pursuant to K.S.A. 84-3-116(a), and each is entitled to contribution pursuant to 84-3-116(b), The court granted judgment of $33,333.33 against Commerce and $16,666.66 against both Auto-Owners and American Family.
Commerce and Auto-Owners appeal, and American Family cross-appeals. King also cross-appeals the determination that White was entitled to one-third of the proceeds from the settlement checks. We have jurisdiction under K.S.A. 60-2102(a)(4) of a case transferred to this court pursuant to K.S.A. 20-3018(c).
Standard of review
A party is entitled to summary judgment if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” K.S.A. 60-256(c). We have said:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
The issues in this case involve interpretations of Article 3 of the Kansas UCC and other questions of law over which we have unlimited review. See Marais des Cygnes Valley Teachers’ Ass’n. v. U.S.D. No 456, 264 Kan. 247, 249, 954 P.2d 1096 (1998)
In Estate of Soupene v. Lignitz, 265 Kan. 217, 220, 960 P.2d 205 (1998), we said:
“ “We initially note our fundamental rule of construction that it is the intent of the legislature, where it can be ascertained, which governs the construction of a statute. See City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. We will not read into legislation provisions which do not there exist. See Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 633, 802 P.2d 1231 (1990).’ Marais des Cygnes Valley Teachers’ Ass’n. v. U.S.D. No. 456, 264 Kan. 247, 954 P.2d 1096 (1998).
“Although appellate courts will not speculate as to the legislative intent of a plain and unambiguous statute, State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997), where the construction of a statute on its face is uncertain, the court may examine the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various suggested interpretations. Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996).
“ ‘Ordinarily, there is a presumption that a change in the language of a statute results from the legislative purpose to change its effect, but this presumption may be strong or weak according to the circumstances, and may be wanting altogether in a particular case.’ Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 684 P.2d 1143 (1982). However, we have also stated: ‘Ordinarily, courts presume that, by changing the language of a statute, the legislature intends either to clarify its meaning or to change its effect.’ (Emphasis added.) Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989) (citing U.S.D. 512, 231 Kan. 731).”
Impostor defense
Commerce first argues the endorsement of White is that of an impostor posing as King’s agent and is therefore effective as King’s endorsement to Commerce as a payor who paid in good faith. Commerce relies upon the amended version of K.S.A. 84-3-404 to support its position, which in applicable part provides:
“(a) If an impostor, by use of the mails or otherwise, induces the issuer of an instrument to issue the instrument to the impostor, or to a person acting in concert with the impostor, by impersonating the payee of the instrument or a person authorized to act for the payee, an endorsement of the instrument by any person in the name of the payee is effective as the endorsement of the payee in favor of a person who, in good faith, pays the instrument or takes it for value or for collection.”
The Official UCC Comment to 84-3-404 states:
“Subsection (a) changes the former law in a case in which the impostor is impersonating an agent. Under former Section 3-405(l)(a), if Impostor impersonated Smith and induced the drawer to draw a check to the order of Smith, Impostor could negotiate the check. If Impostor impersonated Smith, the president of Smith Corporation, and the check was payable to the order of Smith Corporation, the section did not apply. See the last paragraph of Comment 2 to former Section 3-405. In revised Article 3, Section 3-404(a) gives Impostor the power to negotiate the check in both cases.”
The Kansas Comment to this statute reads:
“This section codifies the ‘impostor’ and ‘fictitious payee’ rules, throwing the loss for forged indorsements on the issuer who was duped into issuing an instrument to the wrong person. These rules are a codification of variations of the general negligence provisions of 84-3-406. ... If the section is successfully invoked, the loss arising from a forged indorsement is shifted away from later ‘holders’ and on to the issuer. Note that the ‘impostor’ rule has been expanded to cover situations where a misrepresentation of agency is involved and the instrument is made payable to the real principal. The ‘fictitious payee’ rule has been broadened to include indorsements which are substantially similar.
“Subsection (a). The rule stated in this subsection validates the indorsement where the issuer intended the instrument to go to that impostor him or herself, or as agent of the named payee, or a confederate. The key words in the statute are ‘to issue the instrument to the impostor, or to a person acting in concert with the impostor.’ The controlling factor is whether the issuer intended the person receiving the instrument to receive it. The subsection can only be invoked by a good faith payor or transferee for value.”
Prior to the enactment of the revised Article 3 in 1991, the impostor defense was codified at K.S.A. 84-3-405(l)(a) (Ensley 1983), which provided:
“(1) An indorsement by any person in the name of a named payee is effective if
(a) an impostor by the use of the mails or otherwise has induced the maker or drawer to issue the instrument to him or his confederate in the name of the payee.”
The Official UCC Comment to this section states:
“ ‘Impostor’ refers to impersonation, and does not extend to a false representation that the party is the authorized agent of the payee. The maker or drawer who takes the precaution of making the instrument payable to the principal is entitled to have his indorsement.”
The impostor defense as it existed prior to the 1991 revision has been discussed in numerous cases and treatises; the revised version, however, which added impersonations of agents, has hardly been addressed by any authority. Clark & Clark, The Law of Bank Deposits, Collections and Credit Cards (1995 and 1998 Supp.), which extensively discusses cases under the old impostor defense provision of § 3-405, has litde to say about the effect of the revision. It does seem clear from cases both before and after the revision that someone must still impersonate someone else in order for the impostor defense to apply. There must be an impersonation of an actual agent; a misrepresentation of agency authority is generally not sufficient to invoke the defense.
One of the few cases to discuss the revised impostor defense and to reach this result is Title Ins. Co. v. Comerica Bank, 27 Cal. App. 4th 800, 32 Cal. Rptr. 2d 735 (1994). The case involved a son who obtained a loan by falsely representing to a lender that he was his mother’s agent by forging a power of attorney. The lender issued a check payable to the mother, and the son forged her endorsement. The California Court of Appeal ruled that even if the case were decided under the revised UCC impostor provision, the defense would not apply because the son never impersonated his mother. The court held that the comment to § 3-404(a) “makes it clear that impersonation is still required to invoke the impostor rule, whether the perpetrator of the deception pretends to be the principal or the agent. Misrepresentation of the perpetrator’s agency status does not suffice.” 27 Cal. App. 4th at 807 (citing Intelogic v. Merchants Nat. Bank, 626 N.E.2d 839, 845 [Ind. App. 1993]).
Another recent case which discusses the revised impostor defense, Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1550 (9th Cir. 1996), agreed with Title Insurance and stated:
“Where a person merely represents that he or she is an agent of an actual existing principal and the check is issued in the name of that principal, it is the bank that bears the loss because it was in the better position to detect a fraudulent indorsement — the bank paid to someone other than an existing principal while the drawer was only tricked about the true powers of the agent.”
One case decided under the prior impostor defense provision involved facts very similar to those before us in the present case. In Clients’ Sec. Fund v. Allstate Ins., 219 N.J. Super. 325, 530 A.2d 357 (1987), the New Jersey Superior Court held that the impostor rule did not apply to an attorney who forged the signatures of clients on settlement drafts. The court ruled:
“The term ‘impostor’ refers to ‘impersonation’ and does not extend to a false representation that the party is the authorized agent of the principal. Uniform Commercial Code Comment § 2. . . . ‘Impersonation’ is the act of pretending or representing oneself to be another. Black’s Law Dictionary, (5 ed. 1979) at 679. Such impersonation is of an identity, either real or fictitious, with which the drawer believes he is dealing. [Citation omitted.]
‘We are satisfied that on the facts before us, the ‘impostor rule’ is inapplicable. Allstate did not deal with Yucht as an ‘impersonator’. Yucht never pretended to be someone other than himself. He always represented that he was the attorney for the claimants: he never claimed to be the clients themselves. It was Allstate’s intent to deal with both Yucht and his respective clients and it so issued the settlement drafts. It was Yucht’s misrepresentation of fact that his clients had agreed to settle, rather than imposturing, that ‘. . . induced the maker ... to issue the instrument[s] to him. . . .’ [Citation omitted.] Yucht strengthened this misrepresentation by presenting forged releases to Allstate. There was no intent on Allstate’s part that Yucht should supply the indorsements of his clients. The forged indorsements were therefore not rendered ‘effective’, and thus the loss was not shifted to Allstate as the drawer of the settlement drafts.” 219 N.J. Super, at 331-33.
This same reasoning is likewise applicable to the present case, despite the revised version of the impostor defense. Here, although White’s misrepresentation of his authority to settle the claims on behalf of King may have induced the insurance companies to issue the drafts, the drafts were not issued to an impostor. The insurance companies made the drafts payable to both White and King and intended King himself, not anyone pretending to be King, to receive the proceeds. The insurance companies did not intend for White to forge King’s endorsements, and the forged endorsements may not be deemed effective.
The trial court correctly concluded that the impostor defense of K.S.A. 84-3-404(a) has no application to the facts of this case and Commerce may not invoke its provisions to avoid liability. As the impostor defense is not applicable to this case, we need not discuss the claim made by the insurance companies that the impostor defense should also apply to them as drawees.
Ratification
Commerce argues that because King ratified the settlements with the insurance companies, he has also ratified White’s forged endorsements on the drafts. Commerce cites a string of cases for the proposition that a principal’s election to ratify an unauthorized act requires ratification of the whole act, as a principal may not accept the benefits of the act and reject its burdens. See, e.g., Adrian v. Elmer, 178 Kan. 242, 284 P.2d 599 (1955); Watson v. Woodruff, 154 Kan. 61, 114 P.2d 864 (1941). King argues White’s unauthorized settlements of two separate claims are separate and distinct from and unrelated to White’s subsequent forgery and conversion. We agree with the trial court’s conclusion that King’s ratification of the unauthorized settlement of the claims does not constitute ratification of White’s separate wrongful act of forging King’s signatures to the drafts.
White’s acts of settling King’s claims with the insurance companies were separate and apart from his additional acts of forging King’s endorsements on the settlement drafts. This is not a situation where only one act confers both benefits and liabilities. Such might be the case if King wanted to both accept the benefits of the settlements by obtaining the settlement amounts, but reject the burdens, such as the release of all further claims against the insurance companies pertaining to the accident.
Here, however, there are two very distinct acts: obtaining an unauthorized settlement and forging an endorsement. There is no reason why King should not be permitted to ratify one but not the other, especially when we have long held that granting authority to an attorney to handle a lawsuit does not generally confer authority to endorse an instrument on behalf of the client. See Pearcy v. First National Bank, 167 Kan. 696, 700, 208 P.2d 217 (1949). The trial court correctly determined that Commerce’s position on this issue has no merit. The settlement and the conversion are two separate and distinct transactions.
Conversion suits against both collecting bank and drawees
Both Auto-Owners and American Family assert that King has no cause of action against them as drawees on the instruments paid on the forged endorsements because King sued their respective collecting banks, MNB and UMB, as well as Commerce. They essentially rely upon a 1973 California case, Cooper v. Union Bank, 107 Cal. Rptr. 1, 507 P.2d 609 (1973), and apre-UCC Kansas case, Mackey-Woodard, Inc. v. Citizens State Bank, 197 Kan. 536, 419 P.2d 847 (1966), to contend that a payee cannot sue both a collecting bank and the drawee for conversion.
These cited authorities provide little support for the insurance companies’ position, which also runs counter to the express pro visions of K.S.A. 84-3-420 regarding conversion. Further, this argument, which would be an important defense in an action for conversion, has not been mentioned in any recent cases or in the legal commentaries. See, c.g., Clark, ¶ 12.03.
In addition, we point out that Mackey-Woodard merely holds that a plaintiff must elect his or her remedies and can either pursue a tort action for conversion or a contract action to recover proceeds. If a plaintiff chooses the latter, the plaintiff loses the right to recover against the drawer and drawee because he or she has thereby ratified the payment to the collecting bank. The case does not hold, however, that if the plaintiff chooses to pursue a conversion action, he or she is deemed to have ratified the payment of the proceeds and cannot sue the drawee.
The insurance companies appear to suggest their argument has more merit when collecting banks are sued in addition to the depository bank and drawee. Insofar as their argument is premised on this distinction, it lacks any merit under the facts of this case. UMB and MNB were never sued in their capacity as collecting banks and were dismissed from the suit when it was determined they were not the drawees of the drafts, but merely payable through banks.
We hold that a suit for conversion against the collecting bank does not prohibit a claim also being made against the drawees.
Conversion liability of nonbank drawees
Auto-Owners next makes the argument that the revised version of the UCC eliminates the conversion liability of a nonbank drawee. The prior provision on conversion liability, K.S.A. 84-3-419(1) (Ensley 1983), stated that an instrument was converted if it was paid on a forged endorsement. K.S.A. 84-3-420(a) now provides that a conversion occurs when “a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment.”
Auto-Owners cites no authority in support of its interpretation of the effect of the revision. Nothing in the comments to the section remotely implies that the intended effect was to remove conversion liability from nonbank drawees, nor do the authorities dis cussing the new revision comment upon this possibility. Furthermore, Auto-Owners claims that all cases holding nonbank drawees liable relied upon the old provision. However, the 1998 supplement to Clark’s treatise does again specifically discuss the issue of when an insurance company plays a dual role as both drawer and drawee and cites two recent cases where insurance company drawees were held fiable for conversion, although both relied upon UCC 3-419(l)(c). See Mandelbaum v. P&D Printing, 279 N.J. Super. 427, 652 A.2d 1266 (1995); Glazer v. First American Nat. Bank, 930 S.W.2d 546 (Tenn. 1996). Clark did not discuss how the revision could have changed the result in such cases.
We do not believe the Kansas Legislature, by enacting the revised code, intended to change established law permitting a conversion action by an intended payee against a nonbank drawee who paid on a draft with a forged endorsement. K.S.A. 84-3-420(a) does not discuss who is liable for the conversion, but merely defines what a conversion is. Further, the Official UCC Comment 2 to 84-3-420 discusses how the former 84-3-419 was amended “because it is not clear why the former law distinguished between the liability of the drawee and that of other converters.” This implies that all drawees should be treated as converters in a forged endorsement case such as this, and nothing in this comment indicates that non-bank drawees should be considered a special case apart from other converters.
We refuse to adopt the defense suggested by Auto-Owners and rule that the revised Article 3 does not prohibit actions for conversion against nonbank drawees.
Recovery for draft payable to wife’s estate
American Family claims that King has no standing to sue for conversion of a check made payable to the Estate of Judy King; however, this precise issue was never raised to the trial court. At the hearing in which the court pronounced judgment, American Family noted:
“American Family’s position is that Jerry King, as the heir-at-law, could have ultimately obtained a portion of the proceeds of the settlement, if not all of them, and that’s why he elected to sue for the proceeds. I think he has a valid claim to the proceeds, but he doesn’t have a valid claim to the instrument.”
This statement provides no real indication that American Family was arguing that King had no standing in this suit.
We follow our general rule that an issue not raised before the trial court cannot be raised for the first time on appeal. Ripley v. Tolbert, 260 Kan. 491, Syl. ¶ 6, 921 P.2d 1210 (1996). Furthermore, when American Family originally authorized payment, the settlement draft only contained King’s forged signature, not a signature of King on behalf of his wife’s estate. American Family obviously intended for King to receive the proceeds of the check or it would not have approved the payment on the forged endorsement of his name. This point has no merit.
Agent’s wrongful conduct
American Family argues that King should bear the loss in this transaction because he choose to deal with a dishonest agent, citing only Cairo Cooperative Exchange v. First Nat’l Bank of Cunningham, 4 Kan. App. 2d 458, 608 P.2d 1370, aff’d in part and rev’d in part 228 Kan. 613, 620 P.2d 805 (1980).
This case provides no authority for American Family’s position, as the result was clearly based on the provisions of K.S.A. 84-3-405(l)(b) (Ensley 1983) (now 84-3-404[b]), dealing with fictitious payees, and American Family’s argument removes the case’s holdings from that context. Cairo Cooperative does not alter any of the established liabilities of Article 3 of the UCC and is not applicable to the facts of this case. There is no justification for holding King liable for White’s wrongful conduct under the facts of this case.
Contingency fee — King’s cross-appeal
K.S.A. 84-3-420(b) provides:
“(b) In an action under subsection (a) [conversion], the measure of liability is presumed to be the amount payable on the instrument, but recovery may not exceed the amount of the plaintiff’s interest in the instrument.”
Due to this provision and the determination that King and White had entered into a contingency fee agreement, the trial court concluded that Commerce and fhe insurance companies were only liable for King’s two-thirds share of the proceeds of the settlement checks. King argues first that disputed facts remained pertaining to the scope of his representation agreement with White and second that due to White’s reprehensible conduct, he forfeited any interest in the draft.
King contends he has found no case where an attorney engaged in wrongful conduct was awarded a fee. He argues public policy should prevent an attorney who steals from his client from being permitted to collect a fee. King cites an unpublished federal district court case involving White before Judge Van Bebber, Wilmer, Jr. v. Board of County Comm'rs, (D. Kan. No. 91-2265 1997), where the court determined that the reasonable fee to which White was entitled was nothing, due to his objectionable conduct.
This argument is countered by Commerce and the insurance companies that the Wilmer opinion is unpublished, not of precedential value, and between attorney and client, not involving third parties. Their strongest argument is the change in the wording of K.S.A. 84-3-419(2) (Ensley 1983), which read: “[T]he measure of the drawee’s liability [in a conversion action] is the face amount of the instrument.” The revised conversion statute, K.S.A. 84-3-420, now provides in subsection (b) that “recovery may not exceed the plaintiff’s interest in the instrument.”
Under the provisions of K.S.A. 84-3-420(b), it is clear that King should only be permitted to recover his interest in the instrument, although that interest is still presumed to be the face amount of the draft. See Clark, ¶ 12.03[1], p. 12-8. Thus, we must determine what King’s present interest in the draft is, which requires us to decide if White retained a valid interest.
The trial court did not analyze this last question beyond concluding that because an oral fee agreement had been entered into, White was automatically entitled to a one-third contingency fee. We deem this analysis insufficient, especially considering that the scope of the purported representation agreement may not have included any settlements with the automobile insurance carriers.
While we ultimately resolve this issue by relying on the breach of the employment agreement by an attorney who literally steals from his client, we look briefly to the wording change in the UCC provisions quoted above. It seems clear the intent was to reduce the ultimate liability of the party accepting the forged endorsement as the wording went from “face amount of the instrument” to “plaintiff’s interest in the instrument.”
Cases regarding this issue in Annot. 47 A.L.R.3d 537, § 8[b] and [c] (1973 and supplement) looked to the wording of UCC 3-419(2) to set damages at the face amount, even when it appeared the nonsigning payee’s interest was a lesser amount. A case very similar to the one before us is Hoppe v. First Midwest Bank of Poplar Bluff, 899 S.W.2d 879 (Mo. App. 1995), which involved an attorney’s forgeiy of a check payable to a client. Under UCC 3-419(2), the court allowed recovery for the face amount of the check. The provisions of UCC 3-420(b) were not considered, although the New Jersey case of Nutt v. Chemical Bank, 231 N.J. Super. 57, 555 A.2d 8 (1989), was deemed to be similar as to the attorney fees issue, and the Hoppe court noted in a footnote:
“Complete forfeiture of attorney fees occurs when an attorney’s ‘willfully blameworthy’ conduct clearly and seriously violates the attorney’s duties and thereby destroys the attorney-client relationship. International Materials Corp. v. Sun Corp., Inc., 824 S.W.2d 890, 895 (Mo. banc 1992).” 899 S.W.2d at 883 n.4.
If we were to determine that White’s fee was lawfully earned and rightfully payable, then the revised wording of 84-3-420(b) might justify a result different from that which we reach herein, but such is not the case based on the clear evidence of White’s actions.
Attorneys who act unscrupulously towards the interests of their clients are not entitled to compensation. One authority, 7 Am. Jur. 2d, Attorneys at Law § 279, Fidelity and professional competence, provides:
“A lawyer who does not at all times represent the client with undivided fidelity is not entitled to compensation for his or her services ....
“An attorney who is guilty of actual fraud or bad faith toward a client, or who seeks to secure his or her personal advantage to the prejudice of the client, is not entitled to any compensation for his or her services. Nor can the attorney recover for services rendered in violation of the requirements of professional responsibility.”
This rule is further supported in 3 Am. Jur. 2d, Agency § 258, Effect of agent’s fraud, misconduct, or disobedience:
“An agent may lose his rights to commissions or other compensation if, in his dealing in reference to the subject matter of his employment, he is guilty of either fraud or bad faith toward his employer. . . .
“. . . An agent must act within the terms of his authority, and a substantial variance therefrom defeats his right to compensation . . . .”
We hold White is not entitled to any fee for his services in obtaining the settlement agreements, regardless of whether they inured to King’s benefit through his ratification of the settlements. White’s wrongful conduct is a breach of his employment contract, and his actions result in the forfeiture of any right to attorney fees such that he had absolutely no interest in the settlement drafts at the time he forged King’s signatures and feloniously negotiated the instruments.
This result corresponds with decisions in other cases where 84-3-420(b) of the UCC is applied, where it appears the determination of the claimant’s interest in a converted draft is made as of the time of trial rather than at the time the draft is drawn.
As White has no right to claim a fee from King, he has no interest to claim in the settlement draffs. Therefore, King has the right to claim the entire amount of the draffs and is entitled to a judgment of $50,000 against Commerce and, in the alternative, $25,000 against each of the insurance companies. Commerce and the insurance companies are jointly and severally liable pursuant to K.S.A. 84-3-116(a), and each is entitled to contribution under K.S.A. 84-3-116(b).
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for entry of judgment as directed by this opinion.
Six and Davis, JJ., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
Sakone Mel Donesay appeals his jury convictions of premeditated murder, aggravated robbery, criminal damage to property, two counts of felony theft, and criminal possession of a firearm. Defendant, who was 14 at the time the offenses were committed, was tried as an adult. A controlling sentence of the hard 40 plus 100 months was imposed.
Donesay had been adjudicated as a juvenile offender in 1994 and had been held at the Youth Center at Atchison. Upon his conditional release, he returned to Dodge City to reside with his parents. On November 27, 1995, he and his father met with a community corrections officer in Dodge City and agreed to conditions of intensive supervision for Donesay. Under the agreement, Donesay was subject to a curfew and was not allowed to leave Ford County without a travel permit, there were to be no firearms in the residence and certainly not in defendant’s possession, and violations of the law and consequent contact with law enforcement were grounds for revoking the conditional release.
On January 2, 1996, the community corrections officer received a telephone call from Donesay’s father. He stated that Donesay had left home on December 31, 1995, had not returned, and was believed to be in Wichita.
The events leading to the charges against Donesay occurred during the first week of January 1996. Donesay and several compan ions went to Dodge City in a stolen car and stole another one there. Driving a Honda Accord stolen in Dodge City, Donesay returned to his parents’ house, got a box which he put in the glove compartment, and drove back to Wichita. Donesay’s father kept under his bed a .25 caliber handgun and magazine, which he had seen for the last time on January 1.
After Donesay damaged the front end of the Honda in a collision with a car driven by friends, they abandoned it in rural Sedgwick County. Before leaving the car, Donesay shot it with his father’s gun.
Donesay and a friend then stole another Honda in Wichita. Even though they broke into the steering column to start the car without keys, when they found a set of keys in the glove compartment, they put them in the ignition so that the car would not look stolen. When they noticed that one of the headlights was out, they decided they needed to get another car to avoid being stopped by police.
In the early morning hours of January 8, they picked up three female friends and made another stop at the residence of an acquaintance.
Before locating another car to steal, Donesay and his companions saw a sheriff’s patrol car traveling in the opposite direction. Officer Kevin Easter advised the dispatcher that he had observed a vehicle run a stop sign and that the driver appeared to be trying to lose him. Officer Easter made a U-tum and turned on his overhead lights. He advised the dispatcher that he was in pursuit and provided a description of the car as well as locations. In trying to get away from the officer, Donesay missed a turn, lost control, went through a fence, and drove into a residential yard.
When the car had come to a stop, Donesay reached under the seat to get the gun, jumped out of the car, and ran. Donesay later told police that he did not think Officer Easter saw that he had a gun and that Easter did not shoot at him or tell him to drop his gun. The officer chased Donesay and several times told him to stop. As Donesay was trying to vault over a fence, Easter grabbed his leg. Easter pulled Donesay off the fence and they both went down. Within a very short time, Easter put his fingers in Donesay’s mouth. With Donesay on his right side and Easter on top of him, Donesay put the gun over his shoulder and fired. Officer Bowker, who had arrived by then, heard two quick shots, a pause, and two more quick shots. Donesay testified that Easter “just faded away from me a little bit and I had to push him off a little bit.” The defendant got up, saw Easter’s gun, and grabbed it. As Donesay was getting up, he saw someone with a flashlight come around thé comer and heard a gunshot. When Donesay tried to ran, he fell. After a police officer caught and handcuffed him, they found that Donesay had a gunshot wound in his leg, which he had accidentally inflicted himself.
Officer Easter was shot at close range in the right forearm, right shoulder, back of the head, and the back of his neck. The bullet that entered the back of his neck traveled along his spinal column and through his right lung and liver, causing his death. Other injuries on his body included two small tears inside his lips, scrapes on his face, and a bite mark on his left leg.
The first issue we consider is whether it was error for the district court to admit Donesay’s statements into evidence. While Donesay was in the hospital recovering from the gunshot wound in his leg, he gave several statements to police. Defense counsel filed a motion to suppress the statements, a hearing was conducted, and the district court denied the motion. Defense counsel objected when the State introduced the statements at trial.
There is no dispute that Donesay was handcuffed to the bed and in custody when he gave statements to the police in his hospital room. Detective Bruce Morton testified that at approximately 6 a.m. on January 8, 1996, he entered Donesay’s hospital room. Three law enforcement officers were there guarding the room. Morton was accompanied by two other officers. Donesay was asleep, and there were IV needles in his arms. Officer Morton asked a nurse if it would be all right to interview Donesay, and she stated that the medicine he had been given would not impair his ability to understand what was going on. Donesay was awakened, and the police officers were introduced. Officer Morton started a portable cassette recorder, Donesay was advised of his Miranda rights, and he initialed the Miranda form.
After giving the Miranda warnings, Officer Morton asked, “[D]o you want to give us your side of the story?” Donesay said, “No, not right now.” Then Donesay added that he did want to talk to the police, “but later.” Morton continued, “Okay, you don’t want to talk to us now though?” Donesay answered,“No, I’m too tired.” Still, Morton persisted:
“Okay, you can’t talk a little bit to us? Just to help, help ldnda things out, let us know what happened? I mean, we’re not gonna be here long. We’re not gonna keep you up ah day, we just kinda want to know what’s going on so we can figure everything out. Uh, if you can stick with us for awhile, that would help us out a lot. Would you, would you be willing to do that? Huh?”
Donesay answered, “I don’t know.” Morton said, “Well, would you be willing to talk to me? Year know, the sooner we talk about this, you know, the easier it’s gonna be for everybody.” Donesay replied, “Yeah, I guess I’ll talk about it.”
At Morton’s urging to “tell me, basically what happened tonight,” Donesay began talking. He said that he was driving around with friends when a police officer started following him. He was scared because the car was stolen. He sped up and tried to lose the officer. He went too fast, bumped into a fence, and started running. Officer Morton asked, “Okay, did, did the officer start chasing you?” This exchange followed:
“DONESAY: Yeah. I think he just jumped.
“MORTON: I’m sorry, I can’t hear you.
“DONESAY: He just jumped on me.
“MORTON: He jumped on you?
“DONESAY: Yeah, he grabbed my leg.
“MORTON: He grabbed your leg?
“DONESAY: Yeah, (chuckle)
“MORTON: Then what happened?
“DONESAY: Then he started putting his finger in my mouth, just pulling my mouth.
“MORTON: Uh-huh.
“DONESAY: And he started, you know, he just, hitting, me.
“MORTON: Yeah.
“DONESAY: You know, like uh. So, I got mad and.
“MORTON: Okay, you got mad, then what?
“DONESAY: Oh,
“MORTON: (cough)
“DONESAY: [T]hat’s, that’s all I’ll talk about it okay?
“MORTON: Huh?
“DONESAY: That’s all I want to talk about.”
Morton’s next words were: “Okay, uh, can I ask you just one thing here?” The questions and answers continued:
“DONESAY: Huh?
“MORTON: Uh, you say you knew the car was stolen, okay? How’d you know the car was stolen?
“DONESAY: Cause. Because, man, I had my friend.
“MORTON: Yeah.
“DONESAY: I had my friend get it for me.
“MORTON: You had a friend get it for you?
“DONESAY: Yeah.
“MORTON: Okay. Would you be wanting to tell me your friend’s name?
“DONESAY: No.
“MORTON: Okay, uh, is that the reason you started running from the officer, cause you knew the car was stolen?
“DONESAY: Yeah.
“MORTON: Okay. And when the officer chased you in the back and he grabbed your leg, that made you mad you said?
“DONESAY: No, when he hit me he made me mad.
“MORTON: When he hit you that made you mad? Okay, you don’t, you, can you tell me what happened when you got mad?
“DONESAY: No, man, I don’t want to talk about it.”
Morton began, “So you don’t want,” and was interrupted by Grosland, one of the other officers: “Can you, can you answer us one, did the officer shoot you in the leg or uh, how’d that happen?” These questions and answers followed:
“DONESAY: Oh, I was ... I don’t know. I was just moving away and it, I seen another cop coming and he’s just right there. I just got blasted, I didn’t know how I got shot. Not til I fell on the floor and felt my leg.
“MORTON: Okay, you didn’t know you got shot? Okay. Where, where did the officer hit you that made you mad?
“DONESAY: My face, he started pulling my mouth.
“MORTON: He started pulling your mouth and hitting you in the face?
“DONESAY: Yeah, pull, . . . sprayed mace all over me.
“MORTON: Okay, he was spraying mace on you at the time?
“DONESAY: Yeah.
“MORTON: Okay. And that’s what it, it got you really upset?
“DONESAY: Yeah.
“MORTON: Okay, and you don’t know how you got shot in the leg? You jus, [sic] you didn’t feel it til, til [sic] when was the first time you discovered you got shot in the leg?
“DONESAY: I just fell.
“MORTON: When you fell?
“DONESAY: Yeah, cause I couldn’t run.
“MORTON: Uh-huh.
“DONESAY: That’s, that’s about it.
“UNKNOWN: Was that by the car?
“MORTON: Was that when you was over by the car?
“DONESAY: Yeah.
“MORTON: Was you hollering for your friends to help you or anything?
“DONESAY: No, I just, wanted to say bye, just, you know.
“MORTON: Did you think you, something was happening to you or did you think you was in great peril or?
“DONESAY: Oh, I just, just knew I wasn’t gonna see my friends again, so I told them, you know, hey, see you later, you know.
“MORTON: Why didn’t you think you was gonna see your friends again?
“DONESAY: Tiy to look what I’m mixed up in, man.
“MORTON: What are you mixed up in that, that made you feel that way.
“DONESAY: That’s all I want to talk about. I don’t want to talk about it any more, man.”
When Morton wrapped up the questioning, he gave the time as 6:20 a.m.
At the hearing on Donesay’s motion to suppress the statements, Officer Morton testified that, in his view, during the questioning set out above, Donesay never invoked his constitutional right to remain silent. Instead, Morton proposed, Donesay simply was tired of talking and wanted to go back to sleep. On appeal, the State contends that Donesay was willing to talk, but not when he was tired. The State further contends that Donesay was willing to talk, but not about certain subjects, namely his shooting Officer Easter. In these circumstances, tire argument continues, it was proper for the officers to inquire whether Donesay wanted to continue answering questions. The State relies on State v. Fritschen, 247 Kan. 592, 606-08, 802 P.2d 558 (1990). In that case, the issue was whether the defendant had asserted his right to remain silent. In State v. Matson, 260 Kan. 366, 374, 921 P.2d 790 (1996), the court stated that the rules applicable to a defendant’s exercise of the right to counsel applied as well “where the right to remain silent is ex ercised.” The court quoted the following passage from Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981):
“ ‘[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused . . . having expressed his desire to deal with police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.’ ” 260 Kan. at 373.
In Fritschen, Fritschen argued that he invoked his right to remain silent and that the police ignored him and took a statement. Here is the court’s discussion of the issue:
“At the outset of the April 25 interview, Fritschen was advised of his Miranda rights, and he made a valid waiver of them. At one point during the interview, Fritschen made some indication that it hurt too much to talk about the minders. At the motion to suppress, Officer Byron Motter testified that Fritschen said, ‘I don’t want to talk about it any more, it hurts too much.’ Fritschen argues that this was an assertion of his right to remain silent.
“Motter said that he interpreted this statement to mean that Fritschen was not invoking his right to silence, just that he did not want to think about the murder. Fritschen was upset at this point and was obviously having a hard time talking about the victims. At trial, Motter testified that the officers asked Fritschen if he could continue answering questions by nodding yes or no, and Fritschen agreed. His answers were reduced to writing and he signed the statement.
“At the pretrial suppression hearing, the court said, T am inclined to think . . . that the reason that he didn’t want to talk was not the invocation of the Miranda right but merely because the situation and subject matter was so painful to him that he couldn’t visualize it without extreme upset.’
“The issue here is whether Fritschen asserted the right to remain silent. In Miranda, the Supreme Court recognized that an assertion of Miranda rights may not always be clear. The Court said, ‘If [defendant] is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent.’ 384 U.S. at 485.
“In Smith v. Illinois, 469 U.S. 91, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984), the Court recognized that a statement may be ambiguous as to whether a suspect is asserting his rights. The Court said that in determining whether the statement itself is ambiguous, only prior statements and the statement itself may be looked at. 469 U.S. at 100. Postrequest statements are not relevant.
“Because the Smith Court held that the statement therein at issue was an unambiguous request for counsel, the Court did not determine the procedure if a statement is ambiguous. The majority rule has been promulgated by the Fifth Circuit, which held that an interrogator may ask questions to clarify whether a suspect is asserting his rights. Nash v. Estelle, 597 F.2d 513, 517 (5th Cir.), cert. denied 444 U.S. 981 (1979). This approach seems compatible with Miranda.
“In Crawford v. State, 580 A.2d 571, 576-77 (Del. 1990), the defendant indicated prior to his arrest that he was seeking an attorney. After arrest, he was Mirandized three times and expressed a desire to talk with the police and did not request counsel. The Delaware court held that ‘the police should be entitled to attempt to determine the suspect’s intention .... If, however, the police make additional inquiries concerning a suspect’s intentions, the clarifying questions may not coerce or intimidate the suspect or otherwise discourage his efforts to secure counsel.’ The court emphasized that such attempts at clarification must be in good faith and held that, under the facts, the police acted in good faith.
“Here, Fritschen’s statement does not even reach the level of a potentially ambiguous request to remain silent; Fritschen was saying he was upset and having difficulty talking. Here, even if the request was ambiguous, the officers followed the proper procedure by inquiring if Fritschen wanted to continue answering questions. Fritschen indicated he did. No error is shown.” 247 Kan. at 606-08.
The assessment of whether defendant’s words “reach the level” of a request to remain silent seems to have been made by the court as a matter of law. His words were treated as if they were plain and unambiguous and, therefore, not subject to construction. In Matson, too, the court seems to have decided as a matter of law whether the defendant had invoked his right to remain silent. The court simply stated: “Here, the defendant did not invoke his right to remain silent. He indicated that he would not answer questions about Ty Gerberding, but did not express a desire to terminate questioning altogether.” 260 Kan. at 376.
Here, the district court made a factual finding that the defendant did not invoke his right to remain silent and denied the motion to suppress. The standard of review would be the following for an adult defendant:
“When a trial court conducts a full pretrial hearing on the admissibility of an extra judicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at the trial, this court accepts that determination if it is supported by substantial competent evidence.” State v. Lewis, 258 Kan. 24, Syl. ¶ 4, 899 P.2d 1027 (1995).
Where the accused is a juvenile 14 years of age or older, the court exercises “the ‘greatest care’ in assessing the validity of the confession.” State v. Robinson, 261 Kan. 865, 888, 934 P.2d 38 (1997) (quoting State v. Young, 220 Kan. 541, 553, 552 P.2d 905 [1976]). In Young, the court concluded that an accused juvenile’s pretrial waiver of his privilege against self-incrimination is controlled by In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and State v. Hinkle, 206 Kan. 472, 479 P.2d 841 (1971). 220 Kan. at 546. In Young, this guiding principle was quoted from In re Gault:
“ . . If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure drat the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.’ (p. 55.)” 220 Kan. at 546.
In making its determination, the court considers the totality of the circumstances. 220 Kan. at 546. The factors considered in Young were:
• the age of the minor,
• the length of the questioning,
• the youth’s education,
• the youth’s prior experience with the police, and
• the youth’s mental state.
Beyond the court’s consideration of whether a constitutional right was invoked and irrespective of the decision, the substantial evidence standard, as adjusted for the juvenile defendant in the present case, would be applied in evaluating voluntariness of a confession. If we conclude as a matter of law that Donesay had not invoked his right to remain silent, application of the substantial evidence standard would be to the question of whether the accused Imowingly and intelligently waived his constitutional right. If we concluded as a matter of law that Donesay had invoked his right to remain silent, the substantial evidence standard would be applied to the questions of whether the interrogation ceased for an appreciable period when the accused exercised a constitutional right and whether the statements made or the questions asked by police after exercise of the right amounted to questioning, its func tional equivalent, or were known to police to be likely to produce an incriminating response. See Matson, 260 Kan. at 375.
At the conclusion of the hearing on the motion to suppress, the trial judge made the following findings relative to Donesay’s youthfulness: “Donesay’s date of birth is January 28th, 1981, which would have made him 14, real close to being 15 years old at the time of . . . these interviews.” Reviewing the Miranda form and the first “interview both together took around six minutes.” Donesay was in the eighth grade and “certainly of average intellect.” “[Donesay] has four prior adjudications. So he’s had contact with the court system and police departments in the past.” The interviews took place in Donesay’s hospital room, “[h]e was medicated,” but “the officers were all told that the medication would not affect Mr. Donesay’s ability to understand, and that’s reflected by his responses to the questions.” With regard to Donesay’s being away from his home and unaccompanied by a parent, the trial judge found:
“It’s undisputed that Mr. Donesay’s parents were not in Wichita. He may or may not have had a relative here in Wichita. But there was never a request on his part to converse with his parents before he talked with the officers.
“[H]e was residing in Dodge City, Kansas. However, from the statements in the taped interview, he was no stranger to Wichita. He’d been to Wichita often enough to know that there were people here that didn’t like him very much. So. Being in a strange city is not a factor in this case.”
On the whole, the trial judge’s observations on Donesay’s juvenile status accurately reflect the record. Only two call for any comment, and those would not seem to be significant to resolution of this issue. The first is the length of the questioning. At the suppression hearing, Morton testified that it was 6:14 a.m. when Donesay signed the Miranda form, which was after the warnings had been reviewed and four pages into the transcript of the taped interview. At the end of the first interview, it was 6:20 a.m. The 6 minutes did not include review of the warnings. It may also be noted that Donesay’s interaction with the police on the occasion of the first interview seems to have taken substantially longer than the tape recorded portion. The trial judge stated:
“[Defendant’s] first conversation was with Agent Grosland at 3 o’clock in the morning, approximately. There’s no interview. He came back, and I’ll find it’s more probably true than not true that Agent Grosland, Lieutenant Bardezbain, and Detective Morton returned to the hospital sometime around 5:35 in the morning.
“I find it’s more probably true than not true that [the] reason the Miranda questions aren’t asked until after 6 o’clock is that the KBI agent was getting history.”
Second, whether defendant asked to have his parents present has not been shown to have either legal or factual relevance. Overall, though, the trial judge’s view that the defendant was not particularly vulnerable to police overreaching due to his age is supported by substantial competent evidence.
With regard to the question of whether Donesay invoked his right to remain silent, the trial judge reviewed the transcript of the first interview:
“What troubles me about this case is the statements he doesn’t wanna talk anymore. Initially, . . . it’s just that he doesn’t want to talk to him at that particular time because he’s tired ....
‘We get down to the bottom of page 5 of the transcript, . . . that’s very clearly Mr. Donesay saying he doesn’t wanna talk about the shooting.
“Page 6, . . . and Mr. Donesay again is willing to talk about something other than the shooting.
“ . . . Mr. Donesay is more than willing to talk about getting shot himself. He’s not willing to talk about having shot Deputy Easter.”
Then the trial judge announced his decision:
“I don’t find any of that to be ambiguous. When it’s put in context, it’s very clear what he’s talking about.
“I find that Mr. Donesay understood all of his rights; that the fact that Detective Morton gave him a little bit more explanation on two of them does not indicate that Mr. Donesay didn’t understand them. He understood what his rights were. He talked to the detective or — the detective — the Agent and lieutenant freely, voluntarily, and understandably, did so as a product of his free — of his free and independent will.
“And I’ll deny the motion.
“I’m relying on Gideon and . . . Fritschen, 247 Kansas 592.”
It appears that the trial judge found that Donesay’s statements about not wanting to talk, like Fritschen’s, did not amount to requests to remain silent. The judge found that Donesay said he was tired and that he did not want to talk about shooting Easter, but did not invoke his right to remain silent. There is a difference between the circumstances in Fritschen and those in the present case that was overlooked by the trial judge. Fritschen said he did not want to talk about his stabbing the victims because “it hurts too much,” but he indicated his willingness to answer questions by nodding his head. 247 Kan. at 595-96, 606. Thus, the court found that “Fritschen was saying he was upset and having difficulty talking” rather than invoking his right to remain silent. 247 Kan. at 607. In the present case, in contrast, Donesay never indicated his willingness to answer questions nonverbally or to allow someone else to formulate the words for him.
Although Fritschen is distinguishable from the present case, it and Matson control in the present case. As noted above, in Matson, the court decided the defendant did not invoke his right to remain silent when he refused to answer questions about one person, but did not insist on terminating questioning altogether. 260 Kan. at 376. In the present case, too, Donesay did not insist on terminating questioning altogether. First, he said he wanted to give his side of the story, but at a later time. Then he avoided answering questions about shooting Officer Easter but willingly continued answering when the police changed subjects. As already noted, the trial judge did not expressly state that Donesay had not invoked his right to remain silent, but all indicators pointed to that decision. The trial judge’s decision appears to be in harmony with this court’s previous decisions in Fritschen and Matson.
It also would appear to be consistent with principles set out by the Supreme Court in Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). In that case, the Court “decide[d] how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards [v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981),] prohibition on further questioning.” 512 U.S. at 454. With regard to this gray area between an effective waiver of the constitutional right and an effective invocation of it, the Court stated:
“To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. [Citation omitted.] Invocation of the Miranda right to counsel ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.’ [Citation omitted.] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. [Citation omitted.] . . .
“Rather, the suspect must unambiguously request counsel. . . . Although a suspect need not ‘speak with the discrimination of an Oxford don,’ [citation omitted], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” 512 U.S. at 458-59.
The same principle was set forth by this court in State v. Morris, 255 Kan. 964, Syl. ¶ 4, 880 P.2d 1244 (1994):
“When a suspect makes a statement which may be ambiguous as to whether the suspect is asserting a right to remain silent or to confer with counsel, the interrogator may ask questions to clarify whether the suspect is asserting a right to remain silent or to confer with counsel. Although it is good police practice for officers to clarify whether a suspect making an ambiguous statement really wants an attorney, they are not required to ask clarifying questions.”
In conclusion, Donesay did not unambiguously say that he would not talk to police. The trial judge’s decision in that regard is correct, even given the additional caution that Donesay’s age required the trial judge to exercise in reaching it.
We next consider whether the district court should have accepted Donesay’s guilty pleas to Counts Two, Three, Four, and Six. The complaint filed against Donesay charged him with six counts — Count One, Capital Murder (Donesay is too young to be subject to the death penalty); Count Two, Theft; Count Three, Criminal Damage to Property; Count Four, Theft; Count Five, Aggravated Robbery; and Count Six, Criminal Possession of a Firearm. At arraignment, defense counsel announced that he would enter guilty pleas on behalf of Donesay on Counts Two, Three, Four, and Six. On Counts One and Five, he entered pleas of not guilty. The State objected to Donesay’s splitting up the pleas. After reviewing the case law and hearing arguments of counsel, the trial court concluded that the defendant had neither a constitutional nor a statutoiy right to enter a plea of guilty to some, but not all, of the charges contained in the single complaint against him. Accordingly, the trial court entered pleas of not guilty on behalf of the defendant on all counts.
On appeal, Donesay contends that the trial court has no discretion to deny a plea that is voluntary and knowing and based on facts. He relies on K.S.A. 22-3210 for authority and suggests that this court’s review is unlimited because it involves only an interpretation of that statute.
K.S.A. 1997 Supp. 22-3210 provides, in part:
“(a) Before or during trial a plea of guilty or nolo contendere may be accepted when:
(1) The defendant or counsel for the defendant enters such plea in open court; and
(2) in felony cases the court has informed the defendant of the consequences of the plea, including the specific sentencing guidelines level of any crime committed on or after July 1, 1993, and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
(3) in felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
(4) the court is satisfied that there is a factual basis for the plea.” (Emphasis added.)
The statute expressly permits the trial court’s accepting a plea of guilty; it does not expressly require the trial court to accept a plea of guilty in any circumstances. In the only Kansas case that seems to involve the issue of whether a district court must accept a guilty plea, State v. Clanton, 5 Kan. App. 2d 77, 612 P.2d 662 (1980), the Court of Appeals held that “in felony cases, the decision to accept or reject a plea of guilty after the requirements of K.S.A. 22-3210 have been satisfied is within the sound judicial discretion of the trial judge.”
Donesay cites a number of cases from the courts of other states but does not mention Clanton and has not favored the court with suggestions for distinguishing it from the present case. Clanton tendered a plea of guilty to the charge of attempted rape but refused to admit the alleged facts of the crime and denied committing the offense. The trial court refused to accept the plea. The Court of Appeals stated:
“To grant the relief which defendant seeks in this case would require adoption of a rule making it an abuse of judicial discretion for the court to reject a plea of guilty when a defendant not only refuses to admit the alleged facts of the crime, but denies that he committed the crime. We are not inclined to do so . . . .” 5 Kan. App. 2d at 81-82.
In the present case, Donesay s guilty pleas were tendered along with defense counsel’s representation with respect to each that “Mr. Donesay acknowledges the acts charged.” The question in this case, therefore, does not involve the defendant’s protesting his innocence of any of the offenses he attempted to plead guilty to. This is an important difference between the circumstances in Clan-ton and those in the present case. Clanton was not compelled by the trial court’s refusal to accept his plea of guilty to plead not guilty to an offense he admittedly committed. In contrast, Donesay was compelled to plead not guilty to crimes he admitted committing. K.S.A. 22-3209(1) and (3) set out the effects of various pleas in criminal proceedings: “A plea of guilty is admission of the truth of the charge and every material fact alleged therein. ... A plea of not guilty denies and puts in issue every material fact alleged in the charge.” (Emphasis added.) If truth-seeking is the aim of the criminal justice system, requiring a criminal defendant who admits committing an offense to appear in open court and formally deny the truth by entering a plea of not guilty does not serve that end.
In the present case, defense counsel wanted to reduce the number of offenses on which the jury would hear evidence. The State objected and claimed that it, too, was a party to the action and, as a party, cannot be deprived of its right to trial by jury by Donesay’s waiving his right. In this regard, the State quotes from State v. Ricks, 173 Kan. 660, 250 P.2d 773 (1952), which involved the alternatives of trial by jury or trial to the court. Ricks waived trial by jury in a felony case, and the prosecution objected. This court concluded that the defendant’s waiver bound neither the State nor the trial court:
“It is trae a defendant in a criminal case enjoys the constitutional right or privilege of trial by juiy. That is a personal right of which he may not be deprived against his will. Being a right personal to him he, of course, need not insist upon it for his own protection. In other words he may waive it insofar as he is personally concerned. It does not follow, however, that he, therefore, has a right to compel a court to try his case without the assistance of a jury. The constitution does not grant him such power over the trial court.
“Moreover a defendant is not the only party to the trial. The state has an interest in the subject of trial by jury as a matter of public policy. . . . Defendant’s waiver of a personal right does not bind the state or the trial court. ” 173 Kan. at 664.
The State does not explain how a defendant’s pleading guilty is analogous to a defendant’s waiving trial by jury in favor of a trial to the court. In the former circumstance, there would be no trial.
In further support of its insistence on trying Donesay on all, rather than some, of the charges, the prosecution states that all charges “were part and parcel of the same transaction.” Thus, the State’s contention continues, “[ejvidence of the other crimes would have been res gestae evidence; evidence of the entire transaction,” which would have been relevant to the issue of premeditation. In other words, the State contends that the jury would have heard the evidence on Counts Two, Three, Four, and Six even if the trial court had accepted Donesay’s tendered guilty pleas on those counts. The two counts that Donesay would have submitted to the jury charged him with Officer Easter’s murder and theft of the officer’s gun. Those crimes, in all likelihood, would not have been committed had Donesay not had such a high stake in eluding police due to the string of offenses that culminated in being chased by Easter. He had stolen, damaged, and abandoned one car (Counts Two and Three), he was driving another stolen car (Count Four), and he possessed a handgun, which was illegal on account of his status as a juvenile previously adjudicated of committing an offense that would have been a felony if committed by an adult (Count Six). There can be litde doubt that when Officer Easter noticed that a headlight was out on the car Donesay was driving and signalled for him to pull over, Donesay tried to elude the officer, not to avoid being stopped for having a faulty headlight, but rather to avoid detection of his serious criminal conduct. Likewise, when Donesay grabbed his gun, leaped from the car, and ran from the officer, and then fought rather than surrendering, he did not do so to avoid the penalty for a missing headlight. Thus, it would appear that some evidence of the crimes charged in Counts Two, Three, Four, and Six would have been relevant to the murder and possession of the gun. Could defense counsel have regained the upper hand with regard to the strategy of sheltering the jury from some of the evidence by stipulating to certain elements? It would not appear so under this court’s rule that an offer to stipulate by either party to a criminal action need not be accepted by the other. See State v. Colwell, 246 Kan. 382, 385-86, 790 P.2d 430 (1990); State v. Wilson, 215 Kan. 28, Syl. ¶ 4, 523 P.2d 337 (1974). This court also has stated: “In a criminal prosecution the making of an admission by the defendant does not bar the state from proving the fact independently as though no admission had been made.” 215 Kan. 28, Syl. ¶ 5.
In the same vein, the State argues that the statutes governing the preliminary stages of a criminal proceeding contemplate that a complaint will contain charges relating to all criminal aspects of a scheme or transaction and that a defendant will plead to the complaint rather than to individual counts. In particular, the State cites K.S.A. 22-2902(6), K.S.A. 22-3205(a), and K.S.A. 22-3206(1). K.S.A. 22-2902(6) provides, in part: “The complaint or information, as filed by the prosecuting attorney . . . shall serve as the formal charging document at trial.” K.S.A. 22-3205(a) provides: “Arraignment shall be conducted in open court and shall consist of reading the complaint, information or indictment to the defendant or stating to the defendant the substance of the charge and calling upon the defendant to plead thereto.” The State contends that K.S.A. 22-3206(1) reinforces the construction the State advocates:
“A defendant charged with a felony in an information shall appear for arraignment upon such information in the district court not later than the next required day of court after the order of the magistrate binding over the defendant for trial, unless a later time is requested or consented to by the defendant and approved by the court or unless continued by order of the court.”
Other statutory provisions offer some support for the defendant’s position by downplaying the integrity of a complaint. For instance, K.S.A. 22-3202(1) seems to make it a matter of prosecu tonal discretion whether offenses based on the same or connected transactions are charged in the same complaint: “Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime.” K.S.A. 22-3203 authorizes the district court to “order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.” Moreover, the well-established rule in the courts of this state, based on K.S.A. 22-3202(1), is that “[wjhether a defendant will be tried on separate charges in a single trial is a matter within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. [Citation omitted.]” State v. Anthony, 257 Kan. 1003, 1016, 898 P.2d 1109 (1995).
The State has discretion to charge more than one crime in more than one complaint, and the trial court has discretion to grant or deny a defendant’s motion to sever multiple counts in a single complaint. No statute that would require the charges in a complaint to be treated as indivisible for pleading purposes has been brought to the court’s attention. Thus, no good reason appears to preclude a defendant’s entering guilty pleas to some but not all counts in a complaint.
The trial judge expressed concern that the double jeopardy protection against multiple punishments for the same offense might affect prosecution of Counts One and Five if Donesay was permitted to plead guilty to the other charges. The trial judge cited the dissenting opinion in Ohio v. Johnson, 467 U.S. 493, 81 L. Ed. 2d 425, 104 S. Ct. 2536 (1984). A grand jury indicted Johnson on one count each of murder, involuntary manslaughter, aggravated robbery, and grand theft based on the shooting death of one person during robbery of his apartment. Ohio state law permitted conviction on only one, not both, of the homicide charges and on only one, not both, of the theft charges. The majority treated involuntary manslaughter and grand theft as lesser included offenses of murder and aggravated robbery. Thus, Johnson’s guilty pleas to the charges of the lesser included offenses did not entitle him “to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.” 467 U.S. at 502. Justice Stevens wrote in the dissenting opinion, in which Justice Marshall joined:
“A conviction based on a plea of guilty has the same legal effect as a conviction based on a jury’s verdict. The conviction in this case authorized the State of Ohio to place respondent in prison for several years. As the Court expressly recognizes, ‘the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been . . . convicted on the lesser included offense.’ Ante, at 501. That statement fits this case precisely. Since it is a correct statement of the law, I would affirm the judgment of the Supreme Court of Ohio insofar as it denied the State the right to prosecute respondent on the charge of murder.” 467 U.S. at 503.
In this regard, the majority wrote:
“Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. [Citations omitted.]” 467 U.S. at 501-02.
Thus, we see that the key to this decision and the difference between the reasoning of the majority and that of the dissenting justices lies in the effect acceptance of a guilty plea to a lesser included offense has on charges of the greater offense. The dissenting justices believed that acceptance of the plea implied acquittal of the greater offense, but the majority did not. With no lesser included offenses charged in the complaint against Donesay, Johnson would appear to have no direct application to this case. However, it does address the double jeopardy concern raised by the State.
The trial court cited State v. Kissner, 541 N.W.2d 317 (Minn. App. 1995), for its factual similarity to the present case. Kissner was driving in the passing lane when his vehicle collided head-on with the car driven by Julie Bissette. Three people in the Bissette car died, and a fourfh was injured. A jury convicted Kissner “of three counts of criminal vehicular homicide; one count of criminal vehicular operation causing substantial bodily harm; one count of careless driving; one count of driving with an open bottle; one count of driving without a seatbelt; and one count of transporting a child without a child restraint.” 541 N.W.2d at 320. Kissner tendered guilty pleas to the misdemeanor charges — open bottle, seat-belt, and child restraint violations. The trial court refused to accept the pleas on the grounds that acceptance would not streamline the case or simplify the fact-finding task of the jury. The appellate court also noted: “The trial court may also have been concerned about double jeopardy consequences resulting from a partial guilty plea.” 541 N.W.2d at 325. On appeal, Kissner contended that the trial court’s refusal “deprived him of due process and fundamental fairness.” 541 N.W.2d at 324. The appellate court disagreed:
“ ‘Neither the constitution nor our Rules of Criminal Procedure give to a criminal defendant an absolute right to have his plea of guilty accepted.’ State v. Goulette, 258 N.W.2d 758, 762 (Minn. 1977). Rather, the trial court in its discretion may allow a defendant to plead to less than the entire indictment ‘in proper cases.’ State v. Linehan, 276 Minn. 349, 353, 150 N.W.2d 203, 206 (1967); see also Minn. R. Grim. P. 15.04, subd. 3(2) (‘The court may accept a plea agreement of the parties when the interest of the public in the effective administration of justice would thereby be served.’)” 541 N.W.2d at 324-25.
Thus, the appellate court concluded that the trial court’s “decision to reject appellant’s guilty pleas was not an abuse of discretion.” 541 N.W.2d at 325.
State v. Linehan, 276 Minn. 349, 150 N.W.2d 203 (1967), cited by the Minnesota Court of Appeals for the rule that whether a trial court accepts a defendant’s tender of guilty pleas to fewer than all counts of an indictment is a matter of judicial discretion, involved an indictment that charged the defendant in separate counts with both a greater and lesser degree of murder and kidnapping. At arraignment, defendant “tendered a plea of not guilty to murder in the first degree, guilty to murder in the third degree, and not guilty to kidnapping by reason of double jeopardy.” 276 Minn, at 350. The trial judge refused the tender. The State dismissed the indictment and filed an information charging only kidnapping, and defendant pled guilty. On appeal, defendant claimed error in the trial court’s
“refusing to sentence defendant upon his plea of guilty to murder in the third degree as charged in the indictment and allowing the state to dismiss the indict ment and proceed by information after defendant had abeady entered a plea to murder in the thbd degree as charged in the indictment.” 276 Minn, at 351.
No error was found. The court stated unequivocally that “the defendant has no absolute right to plead guilty to anything less than the entire indictment.” 276 Minn, at 354. The Linehan court’s reasoning, of course, took into account the practice in that state of charging included offenses in separate counts. In addition, Linehan was decided before the Supreme Court settled the question raised in Ohio v. Johnson, 467 U.S. 493. In the presence of its state procedural rule and the absence of the Ohio v. Johnson rule, the Minnesota court reasoned that a decision allowing a defendant to plead guilty to fewer than all counts would open the door for defendants to select the count carrying the lowest penalty, plead guilty to it, and then set up a double-jeopardy defense to the balance of the indictment.
In the present case, Donesay concludes his argument on this issue by urging the court to “find it was an abuse of discretion for the district court” to refuse to accept his tender of guilty pleas to fewer than all the counts of the complaint. He does not contend that a constitutional right or privilege guarantees acceptance of his guilty pleas. He does contend that his defense strategy to conceal evidence of the nonperson offenses from the jury was foiled and he was prejudiced as a result, but, as discussed above, the evidence would have been admissible as tending to show motive and intent for the murder.
Whether it is within the discretion of a trial court to accept guilty pleas to fewer than all counts of a complaint is an issue that has not been considered by this court. The statutes governing criminal procedure afford no firm answer to the question. Nor is there a firm answer in any case law that has been brought to the court’s attention. We agree that a defendant does not have an absolute right to plead guilty to fewer than all counts in the complaint. We see no reason, however, to limit the trial court’s discretion in accepting a plea of guilty to fewer than all of the counts. As we previously noted, the reasons stated for not accepting the pleas of guilty in the present case are not valid. Absent a valid reason, the trial court should accept guilty pleas when the requirements of 22-3210 are satisfied and the defendant, unlike the defendant in Clan-ton, admits the truth of the charge and every material fact alleged in it. Refusal to accept the pleas is to be judged by an abuse of discretion standard.
Here, there is no valid reason to reject the defendant’s plea of guilty to four of the six counts. Although the trial court did not accept Donesay’s tendered guilty pleas, Donesay was not prejudiced as a result, because he “acknowledged the acts” at the time he tendered his pleas, and he admitted the truth of the charges. Because the attention of the trial judge immediately was diverted to the question of whether Donesay could plead guilty to some but not all charges, no inquiries were made about satisfaction of the 22-3210 requirements. Even assuming all conditions were met for allowing Donesay to plead guilty to fewer than all charges in the complaint, however, the trial judge’s refusal to accept the tendered guilty pleas would not amount to reversible error because defendant was not prejudiced.
We next consider the admission of the testimony of the victim’s widow. Donesay complains about Officer Easter’s widow being permitted to testify, over objection, about Easter’s relationship with her, other family members, and friends. He contends that the testimony was irrelevant and served only to inflame the passions of the jurors. We agree.
Here, there is no question that the widow’s testimony was irrelevant and reversible error. The scope of this court’s review of this issue is well established and well known:
“Admission of evidence is entrusted to the sound discretion of the trial court. Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, evidentiary findings of the trial court will not be set aside on appeal.” State v. Sexton, 256 Kan. 344, Syl. ¶ 2, 886 P.2d 811 (1994).
The State contends that had Officer Easter lived, he could have given testimony that would have acquainted the jury with him “so that it may properly fit him into the pattern of events brought out at the trial.” State v. Stokes, 215 Kan. 5, 7, 523 P.2d 364 (1974). Because Easter did not five, the State’s contention continues, his widow was entitled to supply that testimony. The language quoted by the State occurs in a passage where the court is discussing K.S.A. 60-447, which provides “that in a criminal case the prosecution may introduce evidence of the accused’s bad character ‘only after the accused has introduced evidence of his good character.’ ” 215 Kan. at 6. The person referred to in the passage quoted by the State is, of course, the defendant rather than the victim. The authority cited by the State does not support the proposition that the jury is entitled to know personal details about the victim and his family.
Julie Easter testified in detail as to her relationship with Officer Easter from when the two first met in high school, their first date, and their relationship in college. She testified as to Easter’s goals and ambitions and how he chose a career in law enforcement and talked of eventually going to law school. She testified that Easter’s brother was also in law enforcement. She recalled the circumstances of becoming engaged to be married, and she identified a photograph of Easter, evidently at their wedding. She was asked to describe Easter:
“A. Kevin was very happy. He was full of life. There was never a dull moment around Kevin. He could — would light up a room when he walked into it. He always had a smile on his face.
“Q. Did his mom have a name for him?
“A. Her happy boy.
“Q. And would that pretty much sum up the way Kevin’s personality would come across to people?
“A. Yes. I’ve heard that a lot lately, that everybody remembers his smile. He was very well-liked and well-respected by all of his peers. When we were in high school, he was the prom king and homecoming king candidate. And, when he went to St. Mary’s of the Plains, he was given the award of the most inspirational player for the wrestling team. Everybody he met he left a lasting impression on them.”
Mrs. Easter testified as to Easter’s interview and acceptance of a position with the Drug Enforcement Administration:
“Q. Was there any question that you had in your mind that your husband was now going to achieve the goal of being a federal agent?
“A. Absolutely.
“Q. And was this something that both of you were quite excited about?
“A. Yes. Very.
“Q. Did he tell anybody?
“A. No. He was modest. He didn’t wanna brag.
“Q. Who bragged for him?
“A. We were at a family get-together, and his father announced it. He couldn’t hold it in any longer.
“Q. He couldn’t keep a secret. When you would spend time with your husband, were there other people that you would be around or associate with?
“A. Yeah. We spent a lot of time with family and lot of time with friends.”
She testified in detail as to her family and Christmas visits to her parents in Amarillo, Texas.
Probably the most damaging and inflammatory testimony was her relating their final day together and, in particular, her description of their last kiss:
“Q. Prior to him leaving the residence, did you have any discussion?
“A. Umm, no. We just talked about what was gonna be happening in a week.
“Q. So it’d be just a normal evening; is that correct?
“A. Yes.
“Q. And did you have any routine that you two went through at the time that he left for work?
“A. Every time we left each other, we made a point to kiss for 10 seconds, and we did that.
“Q. [Mrs.] Easter, is that die last time you saw your husband Kevin alive?
“A. (The witness nodded.)
“Q. Yes.
“MS. FOULSTON: I have no further questions.”
Mrs. Easter’s testimony was extensive and covers 28 pages of the transcript.
We note that the defendant stipulated that the Glock 17 was Officer Easter’s weapon, that Easter was a properly uniformed officer, that Easter was the victim, and that defendant had no objection to the State’s introducing a picture of Easter.
K.S.A. 6Q-401(b) provides that “[r]elevant evidence’ means evidence having any tendency in reason to prove any material fact.” It is beyond clear that Mrs. Easter’s testimony was irrelevant, prejudicial, and inflammatory. Her testimony may have been proper at sentencing, but the State’s justification for her testimony at trial is meritless, to say the least.-
First, had Officer Easter lived, this would not be a case of premeditated murder, and second, had he lived, he could not have testified as did Mrs. Easter. Her testimony was obviously collateral to the charges against the defendant, and there needs to be some natural or logical connection between her testimony and the inference or result her testimony is designed to establish. See State v. Walker, 239 Kan. 635, 644, 722 P.2d 556 (1986). Clearly, Mrs. Easter’s testimony was not relevant to any material fact of the crimes charged. What is clear is that the inference or result intended was to improperly influence the jury and prejudice the defendant’s right to a fair trial. There is no question that the admission of Mrs. Easter’s testimony was error. This, however, does not end our inquiry.
The question becomes whether the admission of testimony is reversible error. At oral argument, the State conceded it had no authority to support the admission of such evidence, and its best argument was that it was harmless error.
In State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969), we stated:
“Our Kansas harmless-error rule has been incorporated in the statutory law of this state. (See K.S.A. 60-261 and K.S.A. 62-1718.) Our harmless-error rule applies unless the error is of such a nature as to appear inconsistent with substantial justice. Our courts are directed to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
“The federal harmless-error rule declared in [Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967),] requires an additional determination by the court that such error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial.”
The court then proceeded to apply the double standard in finding “the error was harmless beyond a reasonable doubt and did not affect the substantial rights of the defendant.” (Emphasis added.) 203 Kan. at 895.
In State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995), this court noted K.S.A. 60-261 and the numerous cases applying the statutory test of whether the substantial rights of a party had been prejudiced. We further stated:
“Although (he standard of ‘harmless beyond a reasonable doubt’ as applied to errors of a federal constitutional magnitude was recognized as more stringent than the one imposed by Kansas statutes, see State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969), in recent years a similar standard has been applied in Kansas to errors not couched as constitutional violations. See State v. Tyler, 251 Kan. 616, Syl. ¶ 7, 840 P.2d 413 (1992); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982).” 258 Kan. at 445.
Other courts have confronted this issue in similar contexts. In People v. Bernette, 30 Ill. 2d 359, 197 N.E.2d 436 (1964), as here, the defendant contended that testimony of the victim’s widow was irrelevant and highly prejudicial and the purpose was to “infuriate and inflame the jury against him.” 30 Ill. 2d at 371. The testimony at issue related to the fact that the victim left a widow with four minor children. Her testimony did not approach the extent and detail of Mrs. Easter’s testimony in the present case. The State conceded the testimony was irrelevant but argued that it was not reversible error because the defendant did not object and the objectional evidence was “brought to the jury only incidentally.” 30 Ill. 2d at 372. The court found otherwise;
“The evidence in regard to the decedent’s child and step-children was not brought to the notice of the jury incidentally, but was presented by a series of questions in such a way as to permit the jury to understand that it was a matter material and proper to be proved. If any doubt existed, it was removed when the prosecutor went to the extreme of eliciting the ages of the children involved. This entire segment of the evidence, having no relevance to guilt or innocence, could only have had the purpose of prejudicing defendant in the eyes of the jury ‘and to arouse in them anger, hate and passion.’ (People v. Dukes, 12 Ill. 2d 334, 340.) What part this inflammatory appeal to the jury played in the selection of the death penalty cannot be known. But defendant, no matter how reprehensible his crime, was entitled to have jurors consider both the matter of his guilt and punishment, uninfluenced by the circumstance that decedent’s widow had been left to live alone with children of tender ages as the result of the homicide.
“And while no objection was made by the defense to the admission of such evidence, we believe, apart from considerations of a later claim that defendant’s counsel was incompetent for not objecting, that the irrelevancy and highly prejudicial nature of such evidence is so well established, that it was the duty of the court in a murder case to have refused it on its own motion (Cf. People v. Winchester, 352 Ill. 237; People v. Blevins, 251 Ill. 381; City of Chicago v. Pridmore, 12 Ill. 2d 447.) It is always the duty of a trial court to control proceedings to insure that an accused receives a fair and impartial trial.” (Emphasis added.) 30 Ill. 2d at 372-73.
In People v. Logan, 224 Ill. App. 3d 735, 586 N.E.2d 679 (1991), Bemette was discussed and applied:
“The testimony in the present case went far beyond that presented in [People v. Yates, 98 Ill. 2d 502, 456 N.E.2d 1369 (1983),] and [People v. Free, 94 Ill. 2d 378, 447 N.E.2d 218 (1983)]. Here, as in Bemette, the deceased victim’s widow testified in response to a series of questions that she had three children, that the children were aged 10, 6, and 3, and that the eldest was not the child of the deceased. In addition, the prosecutor commented on both victims’ families in opening and closing argument and a photograph showing the deceased victim with his wife and children was admitted into evidence. It also should be noted that, unlike Bemette where no objection was made, here, the testimony concerning the victims’ families was admitted over defendant’s objections.
“In the present case, the evidence and comments complained of were precisely the kind of detailed discussion of the deceased victim’s family that has been condemned by the supreme court. And unlike [People v. Caballero, 126 Ill. 2d 248, 533 N.E.2d 1089 (1989)], here, the evidence not only was uninvited, it was admitted over the strong objections of defendant. Moreover, in the present case, defendant challenged the sufficiency of the evidence against him in his original appeal and continues to do so in the present appeal.
“We find nothing in the supreme court’s language that requires us to conclude that introduction of evidence of a victim’s family will always constitute harmless error when the death penalty ’is not imposed. Rather, the court appears to be saying that when the death penalty is not imposed, the question of whether introduction of such evidence constitutes harmless error will depend upon the manner in which the evidence is introduced.
“As noted above, the supreme court has ruled that the evidence in this case was not brought to the jury’s attention incidentally but was presented in a manner that permitted the jury to believe it was material. (Hope, 116 Ill. 2d at 278.) The court also found that the comments about the victims’ families made during opening and closing arguments were not invited by the defense and amounted to an improper appeal to the emotions of the jurors. Thus, the supreme court has already held that the manner in which the evidence was introduced served to prejudice the jury, and we find that the fact that the death penalty was not imposed does not require a different conclusion. See People v. Tajra (1965), 58 Ill. App. 2d 479, 208 N.E.2d 9.” 224 Ill. App. 3d at 741-43.
In People v. Gallon, 121 Mich. App. 183, 328 N.W.2d 615 (1982), the court determined that the eliciting of the officer re garding the defendant’s asserting his right to remain silent was error. In response to the State’s argument that the error was harmless, the court stated:
“The prosecutor also claims that the error was harmless. In determining whether error was harmless, we employ a dual inquiry. First, was the error so offensive to the maintenance of a sound judicial system as to require reversal and second, if not, was the error harmless beyond a reasonable doubt? People v. Swan, [56 Mich. App. 22,] pp. 31-32. The purpose of the first criterion is to deter prosecutorial and police misconduct. People v. Wright (On Remand), 99 Mich. App. 801, 810-811; 298 N.W.2d 857 (1980). An error may be intolerably offensive to the maintenance of a sound judicial system if it was deliberately injected into the proceedings by the prosecutor, if it deprives the defendant of a fundamental element of the adversary process, or if it is of a particularly inflammatory or persuasive kind. People v. Swan, supra, p. 32. The purpose of the second criterion of the harmless error test is to safeguard the decisional process. Thus, if it is reasonably possible that in a trial free of the error complained of even one juror would have voted to acquit, the error was not harmless.” 121 Mich. App. at 188-89.
In the present case, we apply a similar dual test in determining if the admission of Mrs. Easter’s testimony was harmless. State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995). First, we must determine if the admission of the evidence was inconsistent with substantial justice, i.e., whether substantial rights of defendant were affected by the admission of Mrs. Easter’s testimony. Second, if not, can we declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial?
Here, the district attorney not only had Mrs. Easter testify, but also in her opening statement, over defendant’s objection, told the jury in great detail what Mrs. Easter’s testimony would be. The testimony was patently irrelevant and deliberately presented for the obvious purpose of inflaming the jury against the defendant. As such, it affected the defendant’s right to a fair and impartial trial.
As we previously discussed, the defendant offered to plead guilty to all charges except premeditated murder and aggravated robbery. The primary issue in the trial was whether the killing of Officer Easter was done with premeditation. The defendant did not deny he shot Officer Easter. There is no question of the defendant’s involvement in this tragic occurrence. His offer to plead guilty to four counts was opposed by the State. Notwithstanding, the State intentionally injected the irrelevant and highly prejudicial testimony of Mrs. Easter into this trial. Her testimony was not relevant to any of the charges, but it was offered and admitted by the court as if it were. The jury could not consider the evidence fairly and impartially as to any of the charges. However, the only real question was whether the killing of Officer Easter was premeditated. The defendant basically admitted to everything except that he premeditatedly killed Officer Easter. Defendant, in his brief, noted:
“There was no independent substantial and uncontroverted evidence of Donesay’s premeditated intent to kill Easter. There were no witnesses. There was no medical evidence as to the order in which Easter received the bullet wounds, whether it was the first shot or last that killed him. Officer Bowker testified at trial he heard two shots, a short pause, and two more shots. He conceded, however, that he had not mentioned the pause in his initial report, and that in a subsequent police interview he described the shots as being fairly rapid. He did not tell anyone about the pause in the cadence of the shots until after he met with the prosecutor. . . .
“There was no question the incident took place in a very short period of time. Donesay himself testified he did not intend to kill Easter. He testified he just got mad and shot Easter without thinking.”
The purpose of the State’s eliciting Mrs. Easter’s testimony was not to identify the defendant as the killer, was not to show that he intended to kill Officer Easter, and was not to show premeditation. Her testimony was not intended to show the guilt of the defendant, and it did not. We can only conclude that it was intended to infuriate and inflame the jury against the defendant. We cannot objectively conclude the admission of the testimony was harmless error. The district attorney’s insistence in presenting this testimony to the jury, and the trial court’s allowing her to do it, affected the substantial rights of the defendant to a fair and impartial trial. Thus, we have no choice but to reverse the defendant’s convictions.
Because we reverse, the matter must be retried. We therefore do not consider the remaining issues raised by Donesay.
Affirmed in part, reversed in part, and remanded for a new trial. | [
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|
The opinion of the court was delivered by
McFarland, C.J.:
This is an appeal filed by the State on a question reserved pursuant to K.S.A. 2003 Supp. 22-3602(b)(3). The appeal was transferred to this court on our own motion (K.S.A. 20-3018[c]). The State contends the district court erred in: (1) not allowing the State to file an amended complaint and (2) not allowing the State the opportunity to dismiss the complaint.
FACTS
The pertinent facts may be summarized as follows. On October 5, 2003, defendant, while on probation, discharged multiple gunshots into the pavement in front of a crowded bar named Brothers-in Lawrence, Kansas. Eleven victims were injured. Apparently, most if not all of the injuries were from metal fragments rather than whole bullets. On October 6, 2003, defendant was charged with eleven counts of aggravated battexy under K.S.A. 21-3414(a)(2)(B), and one count of unlawfully possessing a firearm under K.S.A. 2003 Supp. 21-4204(a)(4), all severity level 8 felonies. Additionally, he was charged with the misdemeanor of leaving the scene of a noninjury accident (K.S.A. 8-1603).
The parties appeared before the district court on October 31, 2003, for the scheduled preliminaiy hearing. The district court asked if there were any preliminaiy matters to address before the State called its first witness. At that time, defense counsel announced diat defendant wished to waive his right to a preliminary hearing and proceed to arraignment. The district court addressed defendant directly to determine if he understood the ramifications of waiving this right and if he had sufficient time to make his decision. Tremble answered all the questions posed by the district court affirmatively and stated his desire to waive the preliminary hearing.
Before accepting defendant’s waiver, the district court asked both defense counsel and the State for comment. Defense counsel indicated that defendant understood he could proceed to arraignment. The State then advised the court that it had filed all of the aggravated batteries as level 8 felonies because it had no information on the severity of the injuries. The State had planned to use preliminaiy hearing testimony to determine if the charges as to some victims should be amended to level 5 aggravated batteiy (K.S.A. 21-3414[a][2][A]). The State indicated it wanted 15 minutes “to file an amended complaint.”
The court recessed for an indeterminate time to do some legal research. When the proceeding resumed, the State reiterated it had the right to file an amended complaint. The State did not proffer an amended complaint or indicate what counts it wanted to amend. The court stated it was accepting defendant’s waiver of preliminaiy hearing and was proceeding to arraignment. The defendant then indicated he wanted to plead guilty to all 13 counts.
The State then reiterated it had the right to amend the complaint. The court advised that it was too late to amend the complaint. The State advised that it “understand[s] that” but wanted “five minutes to consider whether I’m dismissing or whether I’m keeping the current charge[s] intact.” The court advised it was proceeding. The State then advised the court:
“[The State]: ... I know I can’t file this amended complaint given the Court’s ruling. But until he has entered his plea, I don’t think I have to accept it. I can dismiss the case prior to that. I’m not saying I want to do that, but I think that’s my right and I want five minutes to consider that.” (Emphasis added.)
The court declined to give the State the requested 5 minutes and proceeded to hear and accept the defendant’s pleas to the 13 counts as set forth in the complaint. The State then filed this appeal upon a question reserved. In its brief, the State requested this court “to set aside the Defendant’s guilty pleas [and] remand this case back to the trial court for further proceeding.” At oral argument the State conceded such relief is not available in an appeal based on a question reserved.
QUESTIONS RESERVED
K.S.A. 2003 Supp. 22-3602(b)(3) provides that the prosecution can appeal upon a question reserved. Such an appeal is permitted to allow the prosecution to obtain review of a trial court’s adverse ruling on a legal issue of statewide interest that is important to the correct and uniform administration of criminal justice. No formal procedural steps are required by K.S.A. 2003 Supp. 22-3602(b)(3) to appeal on a question reserved. All that is necessary for the State to reserve a question for presentation on appeal is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken, laying the same foundation for appeal that a defendant is required to lay. State v. Mountjoy, 257 Kan. 163, 166, 891 P.2d 376 (1995).
In State v. Woodling, 264 Kan. 684, 687, 957 P.2d 398 (1998), we held:
“ ‘Questions reserved by the State in a criminal prosecution, under K.S.A. 22-3602(b), will not be entertained on appeal merely to demonstrate whether error has been committed by the trial court. . . . Generally, this court has accepted appeals on questions reserved by the State where the appeals involve questions of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.’ [Citations omitted.]
“ “We have uniformly declined to entertain questions reserved in which the resolution of the question would not provide helpful precedent.’ [Citations omitted.]”
DISCUSSION
The record is thin on whether the State actually reserved any questions at the time of the complained-of rulings. However, little would be gained from further discussion on that subject. We turn instead to the issue of whether the issues reserved herein are matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes. Would resolution of the questions provide helpful precedent? We conclude the issues herein fail every facet of these tests.
The State, by its own admission, came to the scheduled preliminary hearing lacking information on the severity of the injuries of the 11 victims. It intended to glean this information from the preliminary hearing testimony of the victims and then decide if the severity of any of the aggravated batteries should be amended upward. Defendant’s waiver of a preliminary hearing caught the State off guard and it was unable to take any decisive action. As the State candidly admitted at oral argument before us, had it ever moved to dismiss the complaint during the district court hearing, it would be in a very different situation than it is now.
We decline jurisdiction. The issues sought to be raised in this appeal as questions reserved are fact-specific and not of statewide interest.
The appeal is dismissed.
GERNON, J., not participating. | [
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The opinion of the court was delivered by
Larson, J.;
The Kansas Department of Corrections (DOC) appeals the district court’s ruling that it does not have authority to collect disciplinary restitution from Joseph Tonge, who was released from incarceration but was returned to custody based on his commission of later offenses.
Tonge was incarcerated under the control of the DOC when he escaped on July 15,1998, from the Ellsworth Correctional Facility while on a work detail in Saline County. The following day, he was charged with a disciplinary violation. He was subsequently apprehended and returned to custody. Tonge was found guilty of the disciplinary violation and ordered by the disciplinary board to pay restitution for the costs of $1,956.75 incurred by the State in regaining his custody.
Tonge appealed the restitution order through the DOC administrative proceedings to the district court, which upheld the assessment of prison restitution but reduced the amount to $1,104.68. The DOC appealed the reduction, and Tonge cross-appealed, contending the amount of the reduction was insufficient. The Court of Appeals affirmed the trial court’s order in a published opinion filed September 15, 2000. Review was denied by this court effective December 20, 2000. Tonge v. Simmons, 27 Kan. App. 2d 1048, 11 P.3d 77, rev. denied 270 Kan. 904 (2000) (Tonge I).
Tonge continued to be incarcerated under the control of the DOC until he completed his guidelines sentence, when he was released to a detainer filed by Saline County based on the July 1998 escape charges. Tonge was released on bond on the Saline County criminal escape charges on September 22, 2000.
On or around January 10,2001, Tonge absconded from his bond and postrelease supervision. He was returned to prison as a technical postrelease violator on September 12, 2001. Ten days later, he was released to Saline County for the criminal escape case and, on February 23, 2001, he was sentenced in that case. On May 1, 2001, Tonge was back in the DOC’s custody at Hutchinson Correctional Facility to serve the escape sentence. He served this sentence until he was guidelines released on March 19, 2002. While he was incarcerated, Tonge paid $290.64 towards his disciplinary restitution, leaving an unpaid balance of $814.04.
Tonge was charged with new offenses in Geary County District Court occurring on or around Februaiy 23, 2003. Tonge was discharged from the old sentence, including the Saline County escape conviction, on May 29, 2003. He was sentenced in Geary County District Court for tire 2003 offenses on June 6, 2003, and returned to DOC custody in prison to serve those sentences on June 19, 2003.
Upon return to incarceration in June 2003, the DOC garnished Tonge’s trust account to pay the prison restitution previously ordered, leaving him unable to expend funds at the prison canteen or for publications. Tonge filed two grievances complaining of the garnishment of his account, but the DOC denied them. Tonge exhausted his administrative remedies and filed a K.S.A. 2004 Supp. 60-1501 petition with' the district court requesting a determination that the restitution order was “unfair, unjust, improper, and not moderate for petitioner’s Kving conditions” and seeking an order setting it aside.
The district court concluded the DOC lacked authority to collect restitution from Tonge because K.A.R. 44-12-1306(a)(3), upon which the DOC relies to support its position, was not an effective regulation until after Tonge had completed his sentence. The district court enjoined the DOC from withholding funds belonging to Tonge for setoff or payment of restitution. The DOC appealed to the Court of Appeals, and the case was transferred to our court pursuant to K.S.A. 20-3018(c).
This appeal involves the application of a change in the wording of administrative regulations, which have the force and effect of law. See K.S.A. 77-425. Administrative regulations such as the one in issue adopted by the DOC must be within the agency’s statutory authority, as it acts as a political subdivision exercising delegated legislative power. See Stansbury v. Hannigan, 265 Kan. 404, Syl. ¶ 4, 413, 960 P.2d 227 (1998). In interpreting administrative regulations, courts generally defer to an agency’s interpretation of its own regulations. The agency’s interpretation will not be disturbed unless it is clearly erroneous or inconsistent with the regulation. Schmidt v. Kansas Bd. of Technical Professions, 271 Kan. 206, 214, 21 P.3d 542 (2001).
K.S.A. 2004 Supp. 75-5210(f) specifically allows the Secretary of the DOC to adopt disciplinary regulations to provide a system of punishment, including payment of restitution. Under this authority, K.A.R. 44-12-1306 stated, as amended April 20, 1992:
“(a) When restitution is used in the disciplinary process the following rules and limitations shall apply:
....
“(3) No inmate shall be required to continue payment on any restitution imposed under these rules after release from incarceration and no portion of the inmate’s gate money gratuity as authorized by K.S.A. 75-5211 shall be used toward the payment of such restitution.”
K.A.R. 44-12-1306(a)(3) was again amended effective February 15, 2002, by inserting the following sentence into subsection (a)(3): “Upon any subsequent readmission of the inmate to a facility, any restitution owed may be collected.” The DOC relies on this language of K.A.R. 44-12-1306(a)(3) for its authority to garnish all of fhe funds in Tonge’s prison account until restitution is paid. The district court concluded the regulation was improperly applied in its ruling that it “was not an effective regulation until after the petitioner had completed his sentence.”
It is important to point out that what we refer to as administrative or disciplinary restitution involved in this appeal was not imposed by a court as a part of the criminal sentence on the escape charge. The restitution imposed against Tonge was based on his violation of DOC’s inmate rule book provisions that reference acts prohibited by Kansas law. See K.A.R. 44-12-1001; K.A.R. 44-12-1301(a)(2) and (b)(7). This fact will be critical to our later discus sion of State v. Hymer, 271 Kan. 716, 26 P.3d 63 (2001), a case dealing with court imposed restitution upon which Tonge relies.
Dates are critical to the result we reach in this case, and we first consider Tonge’s claim that the amendment to K.A.R. 44-12-1306(a)(3) was not effective as of February 15, 2002. Tonge argues that since the amendment did not appear in the 2002 supplement to the K.A.R. and first appears in the 2003 K.A.R. with a certificate dated October 1, 2003, stating all regulations are contained therein, the amendment was not effective until after Tonge was discharged from his escape sentence.
This argument is incorrect. An examination of the Kansas Register shows the amended provision of K.A.R. 44-12-1306(a)(3) was published in Volume 21, No. 4, pp. 123-24, on January 24, 2002. “A permanent regulation is effective 15 days following publication in die Kansas Register or at a later date specified in the body of the regulation.” Vol. 3, Kansas Administrative Regulations, Commentary, p. v. See K.S.A. 77-415 et seq. and, specifically, K.S.A. 77-430a. The language in issue in this appeal found in K.A.R. 44-12-1306(a)(3) that “[ujpon any subsequent readmission of the inmate to a facility, any restitution owed may be collected” became properly effective on February 15, 2002, at a time Tonge was lawfully incarcerated under the control of the DOC.
Roth parties have framed the issue we must decide as whether Tonge is required to continue paying disciplinary restitution for an event when the incarceration related to that event has ended.
Tonge argues that we are obligated to consider the reasonableness of the restitution, as was done in Tonge 1, and should follow the approach taken in Hymer, 271 Kan. 716. We there interpreted specific statutory language of K.S.A. 2000 Supp. 21-4610(c) and (d) to preclude the sentencing judge from imposing as a condition of probation an unpaid order of restitution made in a prior case. 271 Kan. at 723-24.
Hymer is distinguishable from our case. The language of K.S.A. 2000 Supp. 21-4610(d) contains a specific limitation on what restitution in criminal cases can address. There is no such limitation found in K.A.R. 44-12-1306(a)(3). In addition, the effect of the sentencing court’s restitution order in Hymer was to essentially malee a new order for restitution in a prior criminal case even though the old order for restitution continued to be enforceable.
District court orders for restitution in criminal cases are subject to enforcement like other civil judgments. K.S.A. 2004 Supp. 60-4301. While we did not reach the double jeopardy issue raised in Hymer because it was resolved by statutory considerations, the allowance of a new order of restitution based on a prior criminal sentence would have created the opportunity of the holder of a restitution judgment for a duplicative collection. The continued enforcement of Tonge’s disciplinary restitution order is of a single amount. The Hymer decision does not aid Tonge.
The issue we face is more correctly framed as whether the DOC has authority to collect disciplinary restitution from an inmate who has been released from incarceration and subsequently, because of another crime committed by that inmate, returned to incarceration. The language of the February 15,2002, amendment to K.A.R. 44-12-1306(a)(3) specifically allows the DOC to continue collection of a previously imposed restitution order.
The ultimate argument which Tonge promotes is that an administrative regulation has the force and effect of a statute and must be considered to operate prospectively unless a contrary intent is clearly indicated. See Harder v. Kansas Comm’n on Civil Rights, 225 Kan. 556, 559, 592 P.2d 456 (1979). Tonge claims since the administrative restitution was based on 1998 actions, the amended regulation does not act on the amount awarded for the escape expenses.
The legislature has not restricted the DOC from making regulations aimed at collecting unpaid disciplinary restitution during subsequent incarcerations. The DOC contends it has always looked at restitution as a rehabilitative tool as it stresses financial responsibility and discourages recidivism.
It is a fundamental rule that a statutory (regulatory) change is to be applied prospectively unless the language clearly indicates it was intended to apply retroactively or the change is procedural or remedial in nature and does not prejudice the substantive rights of the parties. State v. Sutherland, 248 Kan. 96, Syl. ¶ ¶ 4, 5, 804 P.2d 970 (1991).
The difference between whether a matter is procedural or substantive was clearly recognized by our court in State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980), where we stated:
“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished. [Citation omitted.]”
The DOC necessarily asks us to find that the 2002. amendment of K.A.R. 44-12-1306(a)(3) is procedural in nature as it merely sets forth the procedure under which a validly entered order of disciplinary restitution may be collected from a debtor who leaves prison with an unpaid amount but is returned to incarceration because of a subsequent criminal act.
We find no Kansas cases precisely on point, but there are similarities in cases where statutes of limitations are extended.
In State v. Nunn, 244 Kan. 207, 214-20, 768 P.2d 268 (1989), the effect of increasing by statutory amendment of the statute of limitations from 2 years to 5 years for crimes involving sex offenses was considered. Nunn argued the amendment affected substantive rights and could not be retroactively applied to offenses committed prior to its effective date and, even if it could, such retroactive applications would violate the constitutional prohibition against ex post facto laws. The Nunn court noted that statutes of limitations are measures of public policy entirely subject to the will of the legislature, State v. Bentley, 239 Kan. 334, 339, 721 P.2d 227 (1986), and that in civil cases, limitation periods have been held to be remedial rather than substantive because they bar the remedy and not the right, Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d 979 (1976). Nunn, 244 Kan. at 216.
The Nunn court concluded criminal statutes of limitations are procedural and not substantive and may be applied to crimes committed prior to the effective date of the amendment so long as the prior statute of limitations had not expired prior to the effective date of the amendment. Nunn, 244 Kan. at 218. The Nunn opinion established restrictions on the retrospective application of the statutory amendment, stating that “if the statute being amended has run on the specific crime charged, then the amendment cannot be applied to resurrect a prosecution which has already been time-barred.” 244 Kan. at 218.
The Nunn court also made an ex post facto analysis that adopted State v. Anderson, 12 Kan. App. 2d 342, 344, 744 P.2d 143 (1987), which followed Miller v. Florida, 482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987), and Weaver v. Graham, 450 U.S. 24, 67 L. Ed 2d 17, 101 S. Ct. 960 (1981). Nunn set forth the following quote from Anderson:
“ ‘For a criminal or penal law to be ex post facto, two elements must be present: the law “must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver, 450 U.S. at 29; Stokes v. Orr, 628 F. Supp. 1085, 1086 (D. Kan. 1985).’ ” 244 Kan. at 219.
Nunn then adopted the reasoning of State v. Hodgson, 44 Wash. App. 592, 603, 722 P.2d 1336 (1986), aff'd 108 Wash. 2d 662, 740 P.2d 848 (1987):
“ ‘[L]engthening the limitation period before the prosecution is barred does not aggravate the crime, increase the punishment, or allow the offender to be convicted under legal rules permitting different testimony. Courts uniformly hold that extending the statute of limitation before a prosecution is barred is not ex post facto.’ ” 244 Kan. at 220.
Nunn held the amendment extending the period of limitations from 2 years to 5 years does not violate the constitutional bar against ex post facto laws. 244 Kan. at 220.
State v. Noah, 246 Kan. 291, 788 P.2d 257 (1990), was similar factually and followed the reasoning of Nunn. The Noah opinion quoted the Louisiana Supreme Court with approval when it said:
“ ‘[T]he State in criminal matters reserves the right to change the prescription or period of limitation of criminal offenses until it has accrued to the benefit of the accused. Until it has accrued, it can be said, the rights of the accused have not become vested and are subject to regulation or change.’ ” 246 Kan. at 295 (quoting State v. Ferrie, 243 La. 416, 427, 144 So. 2d 380 [1962], abrogated by State v. Olivieri, 779 So. 2d 735 [La. 2001]).
It is important to note that the amendments to the statute of limitations at issue in Nunn and Noah did not specifically state that they were intended to be applied retrospectively.
The analyses of Nunn and Noah are applicable to our facts. The extension of the time within which to collect disciplinary restitution by the February 15, 2002, amendment of K.A.R. 44-12-1306(a)(3) is similar to the extension of the period of limitations within which a crime may be charged. Just as legislative policy is changeable, the DOC has the statutory right to change the regulation regarding collection of disciplinary restitution.
Changing the method of collecting disciplinary restitution is a change in procedure and has no effect on the underlying disciplinary infractions or the amount of restitution ordered. The method of collection is based on DOC policy, which is articulated by the DOC regulation. Just as a limitation period change is within legislative control, a change in the enforcement of disciplinary restitution is within the DOC’s control.
However, there are limitations on DOC actions. DOC regulations must not violate its statutory grant of authority. The regulation at issue here do not exceed the DOC’s authority. As an amendment of a statute of limitations cannot take away a previously vested right, Noah, 246 Kan. at 295, once an inmate accrues a vested defense to the enforcement of disciplinary restitution, that defense cannot be taken away.
The prior DOC policy for the enforcement or collection of disciplinary restitution provided that no payment would be required after the release from incarceration. K.A.R. 44-12-1306(a)(3) (2000). Thus, under such regulation, Tonge’s vested right to defend against paying disciplinary restitution accrued (vested) when he was no longer incarcerated. However, if the amendment became effective while Tonge was still incarcerated and before his vested defense accrued, the limitation to retrospective application does not apply. See Noah, 246 Kan. 295, 297; Nunn, 244 Kan. 218.
The amendment of K.A.R. 44-12-1306(a)(3) became effective on February 15, 2002. The record clearly shows Tonge was still incarcerated on that date, as he was not guidelines released until March 19, 2002. It is therefore clear the additional wording of the regulation allowing restitution owed to be collected upon any subsequent readmission of an inmate to a facility applies to Tonge notwithstanding the fact the restitution order and amount was de termined as a matter of substance prior to the amendment of K.A.R. 44-12-1306(a)(3) effective February 15, 2002. This requires our ruling that the district court be reversed.
We have touched on the additional question of whether the amendment in issue violates the constitutional prohibition of ex post facto action. We hold that it does not for the reasons previously set forth in our quotes from Anderson and Nunn. We also point out that additional punishment is not prescribed nor is any other action taken which would make the amendment violate the Ex Post Facto Clause of the Constitution.
Reversed and remanded with instructions to deny Tonge the requested relief under his K.S.A. 2004 Supp. 60-1501 action.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Beier, J.:
This appeal requires us to determine whether the district judge erred in denying David Kuzanek’s motion to terminate spousal maintenance payments based on Karen Kuzanek’s cohabitation with another man. The Kansas Court of Appeals reversed the district judge’s decision, and we granted Karen’s petition for review.
The Kuzaneks were divorced in June 1999 after 18 years of marriage. David was required to pay Karen $1,500 per month in spousal maintenance for 110 months or until the occurrence of one of several events fisted in the court’s journal entry. The journal entry included language from the parties’ settlement agreement, which provided that maintenance would terminate upon, among other things, “[cjohabitation of wife with an unrelated adult member of [the] opposite sex for more than 30 days.” Neither the journal entry nor the settlement agreement defined “cohabitation.”
David moved to terminate spousal maintenance based on Karen’s alleged cohabitation with her boyfriend, Robert Potemski. Potemski pays rent to five in the basement of Karen’s house. Although he and Karen originally entered into a written lease, the lease had expired by the time of the hearing on David’s motion.
Karen testified that she and Potemski entered into their living arrangement because she needed rental income to be able to stay in her house and keep the parties’ children in their schools. Karen was unemployed from August 2001 until January 2002, and David was not making regular maintenance or child support payments. Potemski moved in because Karen trusted him with the children and she did not want to rent to a stranger. David had moved about an hour away from Johnson County, where Karen and the children lived and where the divorce was granted.
Potemski testified that he initially signed a 1-year lease and paid rent of $525 eveiy month under that lease. In the second year, his rent was raised to $600 per month.
Some rooms of the house are accessible to Potemski only after he has received specific permission to use them; Karen and the children do not have access to his portion of the house without such specific permission. Potemski has a private entrance.
Potemski stores some of his clothes in Karen’s bedroom, and his computer is kept in Karen’s room. The computer had been put there before Potemski moved in; it was there because he allowed Karen and the children to use it, and they wanted to be able to supervise the children’s computer use.
Potemski purchases his own groceries and Karen purchases groceries for herself and the children. Potemski has been reimbursed for. talcing one of the children to McDonald’s. Potemski does some household chores, including loading the dishwasher, laundry, and occasional cooking. He had begun to do Karen’s and the children’s laundry before he moved in, in exchange for permission to use the family’s laundry facilities. This arrangement has endured.
Potemski spent Christmas in 2002 with Karen and her children. Potemski has held a medical power of attorney for the children since 4 months before he moved into the house. The evidence also showed that he attended one of the children’s sporting events.
Potemski has occasionally lent money to Karen and been repaid. He and Karen do not otherwise share finances or have control over one another’s money; they own no joint property. They do not introduce one another as a spouse and do not otherwise represent to others that they are husband and wife. Both admit they have not dated anyone else in nearly 4 years, but they say they remain free to do so. Potemski has slept in Karen’s room only once, and he and Karen have had sexual relations fewer than 10 times since he moved into the house.
On this evidence, the district court judge held that David had failed to meet his burden of proving cohabitation. The judge employed the following definition of cohabitation, established in a 1987 Court of Appeals decision and followed in a 2001 Court of Appeals decision: “[Living] together as husband and wife [and] mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.” In re Marriage of Wessling, 12 Kan. App. 2d 428, Syl. ¶ 6, 747 P.2d 187 (1987); see In re Marriage of Kopac, 30 Kan. App. 2d 735, Syl. ¶ 2, 47 P.3d 425 (2002).
Neither party challenged the adequacy or appropriateness of this definition: In fact, Karen’s attorney emphasized Kopac in her argument to the district judge. This approach was consistent with the Johnson County Family Law Guidelines, which cite Wessling for the controlling definition of cohabitation.
A panel of our Court of Appeals reversed, stating that its duty was “to determine whether the trial court’s findings of fact are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.” In re Marriage of Kuzanek, 32 Kan. App. 2d 329, 332, 82 P.3d 528 (2004).
Like the district court, the Court of Appeals panel characterized the definition of cohabitation from Kopac as controlling, echoing that case’s description of the definition as “unambiguous” and “accepted.” 32 Kan. App. 2d at 330. However, the panel found it necessary to add:
“The definition of cohabitation supplied by the courts is most imprecise in actual practice and application. This court appreciates the difficulty of applying this concept to any particular case. While many of the common attributes of marriage should be considered and are important to any decision involving cohabitation, the court must also focus upon the financial aspects of the matter. In Kansas, spousal maintenance is predicated upon financial need and financial ability. [Citation omitted.]
“Where a significant relationship exists between an individual receiving spousal support and an unrelated adult of the opposite sex which carries colorable attributes of a marriage-like relationship, and where the unrelated adult supplies a material financial gain or benefit, either through direct exchange of money or in kind services to the one receiving spousal support, then it is cohabitation within the context of domestic law in Kansas.” 32 Kan. App. 2d at 330-31.
The panel then proceeded to reexamine the evidence presented to the district court judge, labeled the lease between Karen and Potemski as a sham, and said the “trial court’s reliance on the parties’ written lease to refute a finding of cohabitation [was] misplaced.” 32 Kan. App. 2d at 332.
Our analysis begins with identification of the correct standard of review. We acknowledge that the previous cases have been less than clear on this point. See Kopac, 30 Kan. App. 2d at 737 (referencing multiple standards of review: “substantial competent evidence to support the trial court’s ruling and whether the trial court has abused its discretion,” “negative finding of fact,” and “trial court did not abuse its discretion in entering the negative finding”).
The correct appellate standard of review when a party has failed to sustain its burden of proof is the one applied to a negative finding of fact. At times, in order to arrive at a finding of fact, a legal definition must be applied. This is true of cohabitation. The determination of its existence raises an issue of fact, but the fact finder must employ a legal definition of cohabitation in order to arrive at its finding. If cohabitation exists, then the district court must make a legal determination whether maintenance should be terminated.
Here, David challenges the district court’s negative finding of fact that Karen and Potemski did not cohabitate. That negative finding will not be rejected on appeal unless die party challenging the finding proves arbitrary disregard of undisputed evidence, or some extrinsic consideration such as bias, passion, or prejudice. Mynatt v. Collis, 274 Kan. 850, 872, 57 P.3d 513 (2002).
Even if the Court of Appeals panel had identified this correct standard of review, which it did not, its eventual decision plainly depended upon something other than the restrained approach dictated by die standard. It stated:
“It is undisputed that Karen leased rooms in her home to Potemski, with whom she had a significant long-term romantic relationship, which included occasional sexual relations. Karen contends that notwithstanding tírese facts, her relationship with Potemski was essentially a landlord/tenant relationship with a written lease. This is a suspect contention. At the time of the hearing, Potemski had lived in Karen’s home with her and her two children for approximately I year. He did not maintain a separate residence. Potemski kept some of his clothes and his computer in Karen’s bedroom. They had an exclusive sexual relationship for approximately 4 years. Potemski had attended some of Karen’s children’s school functions and had power of attorney to authorize medical treatment of the children. He purchased sports equipment for one child and sometimes gave the children money. Potemski was listed as a contact person on one of the children’s sports rosters. He spent Christmas with Karen and her family, did household chores, occasionally cooked for tire family, babysat the youngest child without compensation, and provided Karen’s oldest child with a cell phone. Potemski testified that he generally bought his own groceries and paid rent to Karen as a tenant in her home. He admitted to doing the family’s laundry in exchange for the use of the laundry facilities.
“The nature and extent of the relationship between Karen and Potemski is clearly not that of a landlord/tenant or a mere friend. Tenants and mere friends simply do not commonly conduct themselves in the manner that Karen and Potemski have.” 32 Kan. App. 2d at 331.
It is abundantly clear that the Court of Appeals panel took it upon itself to reweigh tire evidence and the credibility of the witnesses. These are not functions of the appellate court. See Blair Constr., Inc., v. McBeth, 273 Kan. 679, 687, 44 P.3d 1244 (2002).
Finally, the panel also strayed from the definition established by Wessling and endorsed by Kopac, even though Kopac was its only guiding authority for the meaning of the word “cohabitation,” as used by the parties in the settlement agreement and by the district court in the journal entiy. The panel took this step despite the fact that the parties had sought no modification of that definition in the district court.
We choose not to question the adequacy and appropriateness of the Wessling/Kopac cohabitation definition without full development of a supporting factual record in the district court and full briefing and argument by at least one party favoring its modification. Our research has revealed varied definitions in our sister states, and some Kansans may doubt the Wessling/Kopac definition’s modern utility. We leave that discussion for another day when the contours of that definition have been fully litigated in the district court.
Until then, divorcing parties, the lawyers who represent them in fashioning settlement agreements, and the district judges and arbitrators who draft journal entries and final decrees and orders in divorce cases will know that they can rely on the Wessling/Kopac definition of cohabitation. If parties wish to depart from that definition, they must explicitly define die word otherwise. As the Kansas Bar Association’s Family Law Handbook alerts domestic relations law practitioners:
“Practitioners should carefully discuss with their clients termination of maintenance due to cohabitation in any case in which maintenance is provided for in a settlement agreement. Most lay persons will believe that ‘cohabitation’ occurs anytime the ex-spouse lives with a member of the opposite sex. Your client will not have in mind the legal definition found in tlie Wessling case and other cases. During negotiation, depending upon the bargaining position in the case, you may be able to get a definition of cohabitation agreed upon that is closer to your client’s expectation than would otherwise be the case.” Blaylock & Lambdin, Properly Division and Maintenance in 1 Practitioner’s Guide to Kansas Family Law § 4.63, Comment (Leben ed. 2003).
In this case, based on the applicable Wessling/Kopac definition of cohabitation, we see no basis for an argument that the district court judge arbitrarily disregarded undisputed evidence or was in fluenced by some extrinsic consideration such as bias, passion, or prejudice. Although certain evidence favored David’s view of his ex-wife’s living arrangement, that testimony did not go unchallenged. In addition, no bias, passion, or prejudice on the part of the district court judge is even alleged, much less demonstrated. We hold that the Court of Appeals erred in selecting the applicable standard of review, in reweighing the evidence before the district court, and in modifying the Wessling/Kopac definition.
The Court of Appeals is reversed. The district court is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This appeal again involves the construction of G. S. 1949, 7-104, relative to the appearance of lawyers from other states in Kansas courts. The petition in the instant case was signed by a regularly practicing member of the Miami County Bar and filed before the District Court of Osage County. The names of certain Missouri lawyers were shown on the pleading as attorneys for the plaintiff along with the Kansas lawyer. Although the point is not here for decision in this appeal, it may be that the statute of limitations had nearly expired when this action was filed on August 13, 1958. Be that as it may, on September 9, 1958, defendant filed a motion to strike the petition on the ground that there had been no compliance with section 7-104. The district court sustained the motion to strike, and plaintiff has appealed.
It may be noted that this case presents a question not involved in any of our former constructions of the above statute (Bradley v. Sadler, 172 Kan. 367, 239 P. 2d 921; Bradley v. Sadler, 174 Kan. 293, 255 P. 2d 650; Dyche v. Crawford, 183 Kan. 441, 327 P. 2d 1047). It appeared without question in the Bradley case that the foreign attorney filed the case in the first instance without associa tion of any Kansas lawyer, and did not comply with the terms of the above statute at any time. Here a fully qualified Kansas attorney signs and files the original petition.
The above statute is designed to provide for the appearance of foreign attorneys before the courts of this state and to insure that the court will have ready jurisdiction over counsel involved in the case at all times. The statute was not designed to govern the appearance of regularly practicing members of the Kansas Bar.
It may be noted that the plaintiff resided in Miami County and the names of his attorneys appeared at the end of the petition in this case as follows:
“SEBREE, SHOOK, HARDY and OTTMAN
915 Grand Avenue, Kansas City, Missouri
Telephone — BAltimore 1-3611
WILLIS H. McQUEARY
561 Main Street, Osawatomie, Kansas
Telephone — PLateau 5-4245
Attorneys for Plaintiff
By: /s/ Willis H. McQueary.”
It may also be noted that the signature of Mr. McQueary was the only real signature appearing on the petition. Mr. McQueary signed the praecipe for summons alone.
It would appear that Mr. McQueary, as a regularly practicing member of the Bar of this state, needed no associate to enable him to file a lawsuit in the District Court of Osage County on behalf of a client. We think that the trial court might well have refused to recognize the foreign attorneys as counsel in the case, but that the court erred in striking a petition under G. S. 1949, 7-104, when the petition contained the signature at the time of filing of a regularly practicing member of the Bar of this state.
Certain other questions arose on the hearing of the motion to strike before the trial court and on the oral argument before this court. It may be noted in passing that the foreign attorneys do not appear as counsel in this appeal, and that a well-known attorney of the Osage County Bar has appeared as one of the counsel for appellant. Those other questions need not be decided on this appeal and are reserved.
From the foregoing, it appears that the order of the district court herein appealed from must be reversed. It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was a workmen’s compensation case. The workmen’s compensation commissioner made an award to claimant. On appeal, the district court reviewed the record taken at the hearing before the commissioner and found claimant injured his back by accident resulting in twenty-nine weeks of total temporary disability, less three days claimant worked, and a twenty-five per cent permanent partial disability; that claimant had been paid $238 in error, and further found that certain medical expenses in specified amounts had been incurred. The trial court then found and concluded as a matter of law that claimant was an independent contractor and not an employee of the respondent herein, and entered judgment for the respondent, the Elmdale Developing Company, Inc. From this order, claimant appeals.
The sole question for our determination is whether there was any evidence to sustain the trial court’s finding and conclusion of law that claimant was an independent contractor and not an employee of respondent. Whether the judgment of the trial court in a workmen’s compensation case is supported by substantial, competent evidence is a question of law as distinguished from a question of fact. (Rakes v. Wright Cooperative Exchange, No. 41,721, this day decided, 185 Kan. 794, 347 P. 2d 389; Coble v. Williams, 177 Kan. 743, 747, 282 P. 2d 425.) Our review of the record discloses there is no dispute as to the facts. Therefore, the decision below was based upon an application of the law to an undisputed set of facts, and this court has jurisdiction to pass upon that question. (G. S. 1957 Supp., 44-556; Roth v. Hudson Oil Co., 185 Kan. 576, 345 P. 2d 627.)
The undisputed facts, as shown by the record, may be summarized as follows: It was stipulated that respondent was operating under the workmen’s compensation act, that Iowa Mutual Insurance Company was the insurance carrier, that notice was had and that written claim for compensation was made by claimant within the statutory period, and that compensation of $238 had been paid. There was no dispute as to how claimant suffered his injury or as to the question of the extent of claimant’s disability.
Mr. McClellan testified that he had worked for the Elmdale Developing Company, Inc., respondent (appellee), and at that time his job was to supervise one project — the building of thirteen houses; that when he was hired by respondent his final agreement was made with the president of the company; that he, as supervisor of the project, hired Ralph Bowler, claimant (appellant), to work as a sider to side the houses at seventy-five dollars a house; that the siding and the other material were furnished by respondent, and that claimant furnished his own hand tools, a practice customary to all carpenters. McClellan told claimant he could not guarantee him all thirteen houses because respondent had its own siders, who were out of town and might return, and the company would keep its own men busy first. He also testified that he was “to boss” claimant and if his work had not been done right he could have fired him.
When McClellan was asked what supervision or control, if any, he exercised over claimant, he stated:
“A. First, if the work wasn’t done right I could fire him. Second, during the changes on each house I’d show him what the changes were, or if there was changes made over and above what the plan showed, I’d tell him also. ... A. Also I’d tell him what job to go to, that we changed on several.”
“Q. Each time he finished a house you told him what next house to go to, is that right? A. He’d always come to me and I’d tell him which one.”
McClellan also stated he supervised the job to see that it was done properly, as he “was concerned about the way the siding was put on these different elevations because of FHA inspection.” He inspected claimant’s work each day and would have fired claimant if he had refused to do as instructed. Claimant made changes under McClellans direction. He was paid every two weeks and not as he finished each house.
Claimant testified that McClellan supervised his work and showed him where to put the siding on the houses; that McClellan checked on him one to five times each day to see that the work went as he wanted it to go. Claimant further stated, “I done just what he [McClellan] told me to do.” Other evidence to the same effect need not be narrated.
At the outset it may be stated that the question presented in this case was thoroughly dealt with in Evans v. Board of Education of Hays, 178 Kan. 275, 284 P. 2d 1068, and cases cited therein, in which we held:
“An independent contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.”
“A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.”
“A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.”
It is not the exercise of direction, supervision or control over a workman which determines whether he is a servant or an independent contractor, but the right to exercise such direction, super vision or control. (Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186; Davis v. Julian, 152 Kan. 749, 756, 107 P. 2d 745.) In the instant case, not only was the right to control and restrict the work of claimant evident, but the undisputed evidence disclosed that such control, supervision and direction over the method of accomplishing the work was exercised by an agent of respondent, even to his authority to discharge claimant.
The fact that claimant was to receive the sum of seventy-five dollars a house does not alter the situation. Again in Evans v. Board of Education of Hays, supra, and cases therein cited, we stated that a workman who is paid wages by the piece or quantity comes within the workmen’s compensation act, the same as one who is paid by the day. Inasmuch as the cases cited therein are well analyzed, no useful purpose would be gained in reiterating what has already been said.
We conclude from the undisputed record there was no evidence to support the trial court’s finding and conclusion that claimant was an independent contractor. The record discloses claimant was as a matter of law an employee of the Elmdale Developing Company, Inc. Therefore, the judgment of the trial court is reversed and the case is remanded with directions to determine the amount due claimant under the workmen’s compensation act and to enter judgment accordingly.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the propriety of an order of the district court quashing service of summons upon defendant D. F., Cahill, d. b. a. D. F. Cahill Construction Company. ' >
The pertinent facts are summarized: Plaintiff is a Kansas corporation with its principal office in Topeka, and is an electrical corn tractor. Defendant Central Surety and Insurance Corporation, hereafter referred to as Central Surety, is a Missouri corporation with its principal office in Kansas City, Missouri, and is authorized to do business in Kansas. Defendant D. F. Cahill, d. b. a. D. F. Cahill Construction Company, hereafter referred to as Cahill, is a general contractor and resides in Kansas City, Missouri.
On December 3, 1954, the Kansas Turnpike Authority adopted a resolution to the effect that all contracts for the construction of the Authority’s projects would be advertised and bids received in accordance with the provisions of G. S. 1949, 68-408, 409, 410, and 411, applicable to the letting of contracts and plans and specifications for projects of the State Highway Commission.
On December 19, 1955, Cahill filed with the Authority a power of attorney in which he designated John Lamasney of Prairie Village, Johnson county, Kansas, his true and lawful attorney in fact. The instrument reads:
“Power of Attorney
“I, the undersigned, D. F. Cahill of Kansas City, Mo., hereby make, constitute and appoint John Lamasney of Prairie Village, Kansas, my true and lawful attorney, for me and in my name, to execute and sign for me any and all contracts with the Kansas Turnpike Authority, and all papers in connection therewith, and to do and perform all necessary acts in the execution of the aforesaid business, in as full and as ample manner as I might do, if personally present: Dated at Kansas City, Mo., this 19th day of December, 1955.
Signed: D. F. Cahill”
(Emphasis supplied.)
Subsequent to the filing of the power of attorney and pursuant thereto Lamasney, on behalf of Cahill, executed contract PL-13 with the Authority, the work for which was undertaken by Cahill and completed some time prior to November 21, 1956. Lamasney performed no other acts on behalf of Cahill in connection with contract PL-13, nor did he perform any acts under the power of attorney on behalf of Cahill in connection with contract SAB-5, hereafter referred to, or with respect to any other contracts Cahill might have entered into with the Authority.
On or about February 13, 1956, Cahill entered into contract SAB-5 with the Authority to construct the service area on the Turnpike southeast of Topeka. As a part of that transaction, Cahill and Central Surety executed and delivered to the Authority their surety bond pursuant to G. S. 1949, 68-410 for the benefit of material and labor suppliers to guarantee the payment of all indebtedness incurred by Cahill for materials and labor furnished, used or consumed in connection with the construction of the service area. Contract SAB-5 was completed by Cahill, the work accepted by the Authority, and Cahill and his organization withdrew from Kansas before January, 1957. Plaintiff alleged that, at Cahill’s request, and between October 18, 1956, and December 14, 1956, it furnished materials and labor of the reasonable value of $2,436.35, which were used under contract SAB-5 for which Cahill refused to pay.
On April 4, 1957, plaintiff commenced this action against Central Surety to recover the value of materials and labor furnished. Central Surety filed its answer and raised defenses which are not before this court on appeal.
On May 29, 1958, with leave of the court, Cahill was made an additional party defendant in plaintiff’s amended petition, and an alias summons was issued against him directing the sheriff to serve his agent, John Lamasney, 4115 West 47th Street, Prairie Village, Kansas. The sheriff’s return showed that service of summons was had upon Cahill “by serving his agent, John Lamasney, personally on the 29th day of May, 1958” in Johnson county, Kansas.
Cahill appeared specially and moved the district court to quash thé pretended service of summons upon the grounds that the court was without jurisdiction of either his person or the subject matter of the action as related to him for the reason that Lamasney had never been his agent upon whom service of summons could be had during the times mentioned in plaintiff’s petition, or since that time, and was not a proper person upon whom service of summons could be had.
The motion to quash service of summons was argued by counsel and taken under advisement by the district court. In the order sustaining the motion, the district court found that Lamasney was not the agent or attorney in fact upon whom service of summons might be had upon Cahill, and that the power of attorney was not broad enough to authorize the service of summons upon Lamasney as process agent for Cahill.
While we do not regard the power of attorney, standing alone, as sufficient in itself to constitute Lamasney as Cahill’s process agent, nevertheless, for reasons hereafter stated, we are of the opinion the service of summons upon Lamasney, under the facts and circumstances presented, was proper and sufficient service upon Cahill.
The contentions of both parties are to be determined by the meaning and effect to be given G. S. 1949, 68-410, the material portion of which reads:
“. . . The state highway commission shall make necessary rules and regulations covering the making and receiving of bids and letting of contracts: Provided, That no contract shall be awarded to a nonresident individual, partnership or corporation unless the same has established a permanent office in the state of Kansas so that service can be had and taxes collected from said nonresident: And provided further, That the provisions of section 16-113 of the Revised Statutes of 1923 shall not apply to contracts made by the state highway commission. . . . Provided further, The provisions of section 60-1413 of the Revised Statutes Supplement of 1933 and section 60-1414 of the Revised Statutes of 1923 shall not apply to contracts made by the state highway commission.”
This statute was obviously designed, among other things, to assist citizens of Kansas in establishing their claims against nonresident contractors by providing a means- of obtaining service of process in any civil action arising out of contracts entered into pursuant to section 68-410. As is observed, sections 16-113, 60-1413 and 60-1414 were expressly made inapplicable to contracts awarded by the State Highway Commission, and, by the Authority’s resolution of December 3, 1954, inapplicable to the Anthority. Section 16-113 relates' generally to the appointment in writing of a process agent by a nonresident contractor who has been awarded a contract by the state or a political subdivision for a public improvement and the filing of such appointment with the clerk of the district court in the county where the work is to be done. Sections 60-1413 and 60-1414 relate to the giving of a bond by such a contractor to insure payment of all indebtedness for materials and labor used or consumed in connection with the construction of such public improvement. Thus, by exempting a nonresident contractor from the requirement of appointing a process agent pursuant to section 16-113, the legislature clearly intended that, as a condition of eligibility to be awarded a construction contract by the State Highway Commission (the Authority), such a contractor shall establish a permanent office in- the state where service of process can be had and taxes collected from such nonresident. In other words, the establishment of a permanent office in Kansas under section 68-410 is the equivalent to the designation in writing of a process agent under section 16-113.
We think that, for the purpose of this lawsuit, the power of attorney was a designation of the establishment of Cahill’s permanent office in Kansas. It was executed and filed to comply with a condition precedent to obtaining the benefits of a construction contract, and it accomplished the purpose for which it was intended. Cahill’s obligation under the statute and the resolution to establish a permanent office in the state must be read into the power of attorney. The principle involved was stated in the cases of Farmer v. Rutherford, 136 Kan. 298, 15 P. 2d 474 and Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918. The law reads into the power of attorney, and it has precisely the same effect as if it contained language stating that it established Cahill’s permanent office in the state of Kansas as Lamasney’s address in Johnson county. Had Cahill not executed and filed the power of attorney he would have had no permanent office in Kansas. In other words, the effect of the power of attorney was to establish Cahill’s permanent office in Kansas making him an eligible bidder for the Authority’s contracts. He may not accept the benefits of contracts procured by the filing of the power of attorney and not assume the burdens. Nor may he now say that service upon Lamasney was hot service at his permanent office in the state of Kansas with respect to liabilities arising out of such contracts.
We have examined, not overlooked, Cahill’s contention that the legislature by enacting G. S. 1949, 60-2533 provided a uniform and legal method by which a nonresident could formally appoint a resident agent for service of process when required by law or by any business commitment. A short answer to the contention is that the Authority did not adopt this statute as being available under its procedures as a condition precedent to awarding a contract to a nonresident contractor. Furthermore, service of process upon a service agent appointed under this statute has only the force and effect of service by publication upon the person, fiduciary or corporation making the appointment.
In view of the foregoing, the district court erred in sustaining Ca-hill’s motion quashing the service of summons, and that order is reversed.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
The state forestry, fish and game commission commenced a proceeding in eminent domain to condemn 480 acres of land for which the court-appointed appraisers made a total award in the sum of $108,985.50 apportioned in the following amounts to the interests indicated:
Record Fee Owners
Anna Frances Martin and spouse, James R. Martin, (%)................................$33,748.33
Alice Clare Fager and spouse, C. E. Fager, (%)................................... 33,748.33
Patricia R. O’Brien Rice, and spouse, David W. Rice, (K)................................. 33,748.34
Agricultural Pete LaForge ........................................ $6,500.00
Cabin Owners Casey O’Bryan........................................ 840.50
Albert Pichard........................................ 200.00
Charles Mingori....................................... 200.00
$108,985.50
The record fee owners were dissatisfied with and aggrieved by the above award and appealed therefrom whereby there was brought to the district court in its entirety the question of the sufficiency of the award. It has been held trial of that issue in the district court is conclusive on all parties, subject to appeal to the supreme court. (Moore v. Kansas Turnpike Authority, 181 Kan. 51, 310 P. 2d 199, opinion on rehearing, 181 Kan. 840, 317 P. 2d 384.) See also, Collingwood v. Kansas Turnpike Authority, 181 Kan. 43, 310 P. 2d 211, opinion on rehearing, 181 Kan. 838, 317 P. 2d 400.
We further stated in Jenkins v. Kansas Turnpike Authority, 181 Kan. 862, 317 P. 2d 401, that,
“. . . under the Moore decision, any appeal by the landowner . . . brings to the district court the determination of the total sufficiency of the award of all interests in the tract or parcel of land under condemnation.” (pp. 864, 865.)
A stipulation with which we are not now concerned was entered into between the record fee owners and the condemner and thereafter Pete LaForge moved the trial court to dismiss the record fee owners’ appeal thereto, which motion was sustained by that court. The record fee owners bring the instant appeal from the order in the court below whereby their appeal from the award of the appraisers was dismissed. The notice of appeal was directed to “The State of Kansas and its Forestry, Fish and Game Commission, condemner; Pete LaForge, condemnee.” Service thereof was accepted and proof of service was waived by:
“Chas. E. Henshall,
“Attorney for the State of Kansas and its Forestry, Fish and Game Commission, condemner.”
“L. H. Cable
“Attorney for Pete LaForge, condemnee.”
A search of the record and the argument of counsel reveal there was no notice of appeal directed to, nor served, nor attempted to be served, on the cabin owners, Casey O’Bryan, Albert Pichard, and Charles Mingori, even though, under the Moore case, all of them were brought up to the district court by reason of the record fee owners’ appeal from the award of the appraisers.
This brings us to the rule strictly followed by this court and repeated in Polzin v. National Cooperative Refinery Ass’n, 179 Kan. 670, 298 P. 2d 333, as modified on motion for rehearing in 180 Kan. 178, 302 P. 2d 1003, and more recently stated in Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341:
“Unless service of the notice of appeal is acknowledged in writing by all adverse parties, whose rights are sought to be affected by the appeal, or their attorneys of record, or unless service is acknowledged by such parties or their attorneys of record by signing and returning to the sender a registered mail receipt card acknowledging receipt of such notice, a litigant seeking to appeal from a judgment, order or decision of the district court does not perfect a valid appeal under G. S. 1949, 60-3306, unless he makes proof of service of his notice of appeal by affidavit within the time prescribed by G. S. 1949, 60-3309.”
We therefore conclude that in an eminent domain proceeding brought by a state department or commission possessing such power wherein the landowners appeal from the award of the court-appointed appraisers, the appeal brings to the district court the determination of the sufficiency of the award of all interests in the tract or parcel of land under condemnation and the result of the trial is conclusive on all parties, subject to appeal to the supreme court. In an attempt to appeal to this court, the landowners in this case failed to serve' notice of appeal on adverse parties who had been brought to the district court by the landowners’ original appeal from the award of the appraisers. By reason of such failure, this court has no jurisdiction to hear the appeal and it must of necessity be dismissed.
A question is raised in regard to the manner in which our attention was called to the jurisdiction feature of the case but we shall not concern ourselves therewith because the record fully discloses the failure of notice. Citation of our supporting decisions is unnecessary on our well-established rule that this court has the duty to determine jurisdictional defects whether raised by the parties or not.
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The opinion of the court was delivered by
Price, J.:
This is an action to recover for personal injuries. Defendant appeals from an order striking portions of its amended answer.
Briefly stated, the facts related by the petition are as follow:
Plaintiff was an employee of the Hunter & Lundberg Construction Company, which was engaged in constructing a student dormitory at Manhattan. The company found it necessary to lift and move some steel beams on the project. The Bayer Construction Company, defendant herein, owned machinery which could be used for such purpose. Plaintiff’s employer requested defendant to send one of its machines and an operator to move the beams. Defendant complied. The operator’s name was Taylor. While Taylor was using the machine to lower a piece of steel into place the boom on the backhoe fell and hit plaintiff, causing severe injuries. This occurred on July 31, 1956. This action was filed on July 30, 1957, and it is alleged that at the time and place in question defendant company was in the exclusive control and management of the machine, and that Taylor was working as the agent, servant and employee of defendant company.
In its amended answer defendant, among other defenses, alleged (7) that plaintiff assumed the risk of his employment; (9) that plaintiff’s injuries were caused solely by the negligence of plaintiff’s fellow servants in the employ of plaintiff’s employer, and (8) that plaintiff and his employer were operating under the workmen’s compensation act and that plaintiff had received, or was receiving, all benefits to which he was entitled under the act.
Plaintiff’s motion to strike the foregoing defenses was sustained and defendant has appealed.
The specifications of error are that the court erred in striking parts of the answer and in striking parts of the amended answer.
The notice of appeal, however, does not include the earlier ruling striking portions of the answer, and therefore that order is not subject to review even though specified as error. (Borgen v. Wiglesworth, 185 Kan. 108, 110, 111, 840 P. 2d 365.)
As before stated, those portions of the amended answer which were stricken raised the defenses of assumption of risk, the fellow servant rule, and the fact that plaintiff had received workmen’s compensation for his injuries.
Questions relating to the two first-mentioned matters, being neither briefed nor argued, are considered as abandoned. (Wingerson v. Tucker, 175 Kan. 538, 540, 265 P. 2d 842.)
This leaves, therefore, but one question, that is — when, under the authority of G. S. 1957 Supp. 44-504, an injured workman, within one year from the date of the injury, brings a common-law action against an alleged negligent third party, may such third party plead the workmen’s compensation act as a defense?
The question has been before this court many times — recently in Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219, and Barker v. Zeckser, 179 Kan. 596, 296 P. 2d 1085—and has been answered in the negative. It is unnecessary to repeat what was there said and held. We adhere to those decisions.
The trial court did not err in striking the mentioned defense from the amended answer, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Donald J. Piland, was convicted of two counts of burglary and one count of theft of property of a value of fifty dollars ($50) or more. He was sentenced to three concurrent terms of not less than three (3) nor more than ten (10) years, and he has appealed.
Most of the facts are undisputed. On March 25, 1974, the Allison Junior High School building of Wichita was entered. A vending machine which was located in a closet in the building and which contained money, candy, cookies and gum was pried open and many of its contents were missing. A fingerprint identified as Mr. Piland’s was found on the coin box.
On April 17, 1974, the same junior high school building was entered through a broken window in the school library and the defendant was found crouched underneath a row of desks. Three of his fingerprints were found on and about the broken window.
In explanation of his presence beneath the library desks, Mr. Piland testified he was walking down the street when he saw two young guys go up the fire escape and into the building; that he was going to tell them they had better get out because he didn’t want to see them get into trouble; that he went the same way they did and over the roof and there was a broken window and he went in; that he heard footsteps and people running outside; that he heard a ’copter overhead and looked out and saw a policeman; that he didn’t want to get shot so he went under a desk, where he was found. The defendant further testified he had never been in the Allison Junior High School building prior to April 17, 1974, and he knew not how his fingerprints happened to be on the coin box of the vending machine.
Three points are fingered in Mr. Piland’s statement of points. In summary, they recite that the trial court erred in the following particulars:
1. Failing to separate the charges for trial.
2. Failing to instruct the jury as to value.
3. Refusing to discharge the defendant at the close of the state’s case for lack of evidence.
The defendant has neither briefed nor argued the third point and we assume it has been abandoned — as well it might have been, considering the content of this record. This court has held that points which are neither briefed nor argued on appeal will be considered abandoned. (Intercontinental Leasing, Inc., v. Lehr, 209 Kan. 132, 136, 495 P. 2d 900; Vickers v. Wichita State University, 213 Kan. 614, 616, 518 P. 2d 512.) We shall spend no further time on point number three.
Did the court err in trying the defendant on all three charges at a common trial? First of all, we should note the record discloses no request by the defendant to separate the charges for trial. It is a rule of long standing that matters not presented to the trial court are not to be considered on appellate review. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, §304.) Nonetheless, we shall comment briefly on the point.
K. S. A. 22-3202 (Weeks 1974) provides that two or more crimes may be charged against an accused in the same information where they are of same or similar character or are based on the same act or transaction or on two or more acts constituting a common scheme or plan. In State v. Thomas, 206 Kan. 603, 609, 481 P. 2d 964, we said the statute codified the prior case law existing in this jurisdiction. In a somewhat earlier case, State v. Caldrone, 202 Kan. 651, 653, 451 P. 2d 205, we said the joinder of separate felonies in a single information is largely a matter resting within the sound judicial discretion of the trial court.
We find no abuse of discretion on the part of the trial court in trying the offenses together in this case. They were of the same general character, they occurred within a short space of time and they were committed at the same school building. Clearly, they fall within the guidelines set both by the statute and by former decisions of this court. (State v. Lamb, 209 Kan. 453, 470, 497 P. 2d 275.)
Defendant’s second point gives us greater pause. In instruction No. 2, the trial court charged the jury in part as follows:
“In count two of the Information, the defendant is charged with the crime of theft. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That Mr. Mervyn L. Criser was the owner of the property;
“2. That the defendant obtained and exerted unauthorized control over the property;
“3. That the defendant intended to deprive Mr. Criser permanently of the use and benefit of the property; and
“4. That this act occurred on or about the 25th day of March, 1974, in Sedgwick County, Kansas.”
With the exception of names, dates and places, the foregoing portion of instruction 2 was taken verbatim from PIK Criminal No. 59.01.
To the instruction the defendant duly objected. He complains it failed to include a necessary element of felony theft, i. e., that the property taken be of the value of fifty dollars ($50) or more, and he asserts that the omission prejudiced his right to have the jury determine the value of the property stolen.
Under the circumstances shown of record we believe the trial court should have instructed the jury as to the element of value, delineating the value distinction between felony and misdemeanor theft and requiring the jury to find the value of the property. The present statute relating to theft, K. S. A. 21-3701 (Weeks 1974), designates theft of property valued at fifty dollars ($50) or more as being a class D felony (this was formerly designated as grand larceny in K. S. A. 21-533 [Corrick 1964]), while theft of property valued at less than fifty dollars ($50) is named a class A misdemeanor (formerly denoted petty larceny in K. S. A. 21-535 [Corrick 1964]).
The offense charged in count two of the information is clearly that of felony theft, but the jury was not so advised by the court, nor was the value of the pilfered property anywhere mentioned by the court in its instructions. Hence the return of a verdict finding defendant “guilty of theft, as charged in count two” cannot be taken to mean that the jury found the property stolen was of a value of fifty dollars ($50) or more or that the defendant was guilty of felony theft.
As justifying its refusal to instruct as to value, the trial court commented there was no basis in the evidence from which the jury might make a finding of value of less than fifty dollars ($50). We do not regard the evidence as quite that conclusive or compelling. The sole testimony of value came from Mr. Criser, who operated the vending machine. He testified there was approximately fifty dollars ($50) lost on merchandise and twenty-five dollars ($25) in nickels, but his figures as to the merchandise loss were obviously estimates. Mr. Criser s testimony wavered between retail and wholesale value; he had not counted nor did he know how much stock remained in the machine after the theft; and he “guessed” how much stock was held in storage.
The defendant contended at the trial that the jury should evaluate the testimony given by Mr. Criser, “as the jury may not believe all what [sic] the owner of the vending machine . . . testified.” In view of the equivocal nature of portions of Mr. Criser s testimony we are inclined to agree that value was in issue.
In a good many respects this case resembles State v. Smith, 215 Kan. 865, 528 P. 2d 1195, where the defendant was convicted of criminal damage to property in violation of K. S. A. 21-3720 (Weeks 1974). That statute, after defining the offense, goes on to provide that criminal damage to property is a felony if the property is damaged to the extent of fifty dollars ($50) or more, but is a misdemeanor if the property damaged is of the value of less than fifty dollars ($50), or is of the value of fifty dollars ($50) or more and is damaged to the extent of less than fifty dollars ($50). The instructions given in Smith did not set out the value distinction between a felony and a misdemeanor damage to property, nor did the jury in that case specify in its verdict either the value of the property damaged or the amount of the damage.
We said in the Smith case that the trial court should have included as a part of its instructions PIK 68.11 requiring the jury to set out in its verdict the value of the property damaged and the amount of the damage done. So in this case we are of the opinion the jury should have been instructed as to the element of value and required to make findings with respect thereto.
What should be our disposition of this case so far as the charge of theft is concerned? We believe that State v. Smith, supra, points the way. In that case the verdict did not set forth either the value of the property damaged or the amount of damage, nor did the instructions require the jury to make findings with respect thereto. We said, however, that the record was sufficient to support a conviction for the lesser offense of misdemeanor damage to property. Similarly it may be said here that the record, although insufficient to uphold a felony theft conviction, is adequate to sustain a conviction of misdemeanor theft of property, and we so hold.
Following the procedure adopted in Smith we reverse that part of the judgment sentencing Mr. Piland for class D felony theft of property as alleged in count two of the information and we remand the cause for resentencing the defendant for a class A misdemeanor theft in accordance with the provisions of K. S. A. 21-4502 (1) (a) (Weeks 1974). In all other respects the judgment of the court below is affirmed.
It is so ordered.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from an order setting aside a default judgment. The facts are not seriously in dispute.
So far as we can tell from a confusing and inadequate record the plaintiff, to whom we shall sometimes refer as Bates, is in the construction business. Sometime during the year 1973 he purchased from the Missouri Highway Commission a number of houses which had been acquired in condemnation proceedings. Bates thereafter negotiated the sale of several of the houses to the defendant Berry, who is a house mover, at prices which were left undetermined at the time. On or about July 1, 1973, Berry moved one of the structures from the area of Kansas City, Missouri, to Bonner Springs, Kansas, without the formality of paying therefor and without the consent of or notification to Mr. Bates.
Mr. Bates thereupon filed this action to recover not only the value of the house, which he alleged to be $7500, but also $10,000 in punitive damages. Service of summons was had on the defendant’s daughter at a location which the defendant now says was not his residence. However, no point is made in this action that the service was insufficient.
The summons appears to have made its way into Berry’s hands, nonetheless, and he proceeded to place it with his attorney, for attention. Somehow the answer day came, and the answer day passed, without any pleading or answer being filed by or on behalf of Mr. Berry. This being the case, Mr. Bates proceeded to take default judgment before the Honorable Cordell D. Meeks, Judge of Division No. 6 of the 29th Judicial District. The judgment was in the amount of $7500 actual damages and $10,000 punitive damages. No testimony was introduced at the time judgment was taken, although it appears that counsel for plaintiff advised the trial court that defendant had stolen the house.
Nothing was paid on the judgment, and some two and a half months later plaintiff filed a motion to attach the house which, in the meantime, had been located in Bonner Springs. Notice of the motion was given to the persons listed as owners of record of the property. This brought a response from Berry who proceeded to file a motion to set the default judgment aside, pursuant to K. S. A. 60-260 (h). Attached to the motion was a proposed answer and a cross petition against Bates for $20,300.
Mr. Berry’s motion to set the judgment aside was heard by the Honorable O. Q. Claflin, III, Judge of Division No. 1, of the Wyandotte District Court inasmuch as Judge Meeks was unavailable at the time to hear it. Judge Claflin sustained Berry’s motion, commenting at the time that the judgment was improperly granted since no evidence was introduced in support thereof and that the same was voidable.
Mr. Bates thereupon filed this appeal. The following points are raised: The trial court erred (1) in ruling the default judgment was improper and voidable because testimony was not offered in support of judgment, (2) in sustaining the motion to set the judgment aside because the motion was not filed within a reasonable time, and (3) in permitting defendant to file an answer and counterclaim 139 days after suit was filed and 97 days after judgment was taken. We do not reach any of these points, however, for the appeal must be dismissed because it is not taken from a final, appealable order.
Our rule is well settled that an order vacating a judgment is not a final order from which an appeal may be taken. In Whitaker v. Continental Casualty Co., 192 Kan. 705, 391 P. 2d 309, this court held:
“In an appeal in an action where a default judgment was vacated and set aside by the trial court, leaving an action pending in the lower court, as more fully narrated in the opinion, it is held, the trial court’s orders setting aside and vacating the judgment are not final orders and the appeal therefrom must be dismissed.” (Syl.)
In Whitaker we cited the earlier case of Vail v. School District, 86 Kan. 808, 122 Pac. 885, in which the following language appears:
“ ‘It must therefore be regarded as settled law in this state that an order setting aside a default judgment and permitting the defendant to answer is not such a final order as can be appealed from while the action is still pending. After final judgment an appeal may bring up such order for review. . . .’ (p. 812.)” (p.707.)
See, also, McCulloch v. Dodge, 8 Kan. 476 and Kermeyer v. K. P. Rly. Co., 18 Kan. 215.
We believe the adoption of the present Code of Civil Procedure effected no change in the rule postulated in the foregoing cases. K. S. A. 60-2102 provides in substance that the appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from a final decision in any action except where recovery of money is sought in an amount of $500 or less. In explaining this provision of the Code, Judge Gard, in his work, Kansas Code of Civil Procedure, Annotated, has this to say:
“While a ‘final decision’ is not defined the term is really self defining. Obviously it is an order which definitely determines a right or liability involved in the action, or which grants or refuses a remedy, as a terminal act in the case.” (p. 766.)
In an article by Professor Earl B. Shurtz, titled Civil Practice, 14 Kansas Law Review 171, 187 (1965), the following discussion is found:
“Under Kansas practice, an appeal from a district court to the supreme court will lie as of right from a final order, i. e., ‘one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.’ In practice this means that because they are not final orders, no appeal will lie from an order overruling a motion to dismiss an action, an order setting aside a default judgment and permitting the defendant to answer. . . .”
Judge Claflin s order vacating the default judgment against Berry and permitting Berry to file an answer and cross petition leaves this cause still pending before the trial court. The court’s ruling did not constitute a final determination of the matters in litigation; it did not constitute a final judgment from which an appeal could be taken. Accordingly, the appeal is dismissed and this cause is remanded to the trial court for its further action.
It is so ordered.
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The opinion of the court was delivered by
Schroeder, J.:
This appeal encompasses the issue of the proper apportionment of the burden of federal estate taxes and other debts and expenses, incident to the administration of a testate decedent’s estate, among the beneficiaries named in the decedent’s will. The primary question posed is whether a surviving spouse’s share in the estate of a testate decedent must bear a proportionate part of the federal estate tax liability.
The testator, Arthur J. Jackson, a resident of Long Island, Kansas, died on September 29, 1970, leaving a will dated December 29, 1968.
The will directed payment of testator’s debts and funeral expenses and devised all his real property to his wife for the term of her life, and upon her death to pass in fee to his children and grandchildren. The remaining dispositive provision of the will stated:
“Third: I give and bequeath unto my wife, Olive A. Jackson, one-half of all the personal property of which I shall die seized or possessed.
“The other one-half of my personal property I give and bequeath in the following manner: [The will provides certain portions to pass to testator’s children and grandchildren.]”
The bulk of property passing under the will was personalty. The will contained no provision which directed apportionment of estate taxes and other debts and expenses owed by the estate.
The value of the estate subject to probate totaled $415,000. Additionally, the decedent held in joint tenancy property of $81,000 and the Internal Revenue Service determined the testator had made gifts in contemplation of death of the value of $114,000, which amounts, while not included as part of the probate estate, have been subjected to federal estate tax liability.
The administrators of testator’s estate in calculating the share to be received by testator’s surviving spouse, Olive A. Jackson, charged the share of personalty she was to receive under the third paragraph of the will with one-half of the total federal estate tax owed by the estate. The administrators also sought to charge only the personal property passing under the will with liability for all other debts and expenses owed by the estate. Olive Jackson challenged the administrator’s calculations and contended that her share of the estate, to the extent it does not exceed the amount allowable as a marital deduction for federal estate tax purposes, may not be charged with and reduced by federal estate tax liability. She argued that all other debts and expenses of the estate should be charged proportionately against all assets passing under the will.
As a result of the controversy the administrators filed an action in district court seeking a declaratory judgment pursuant to K. S. A. 60-1701, et seq. The trial court heard the matter on stipulated facts and determined that the property receivable by the surviving spouse from the estate of her deceased husband is not chargeable with any share of the federal estate tax due, to the extent such property qualifies for the marital deduction under the Internal Revenue Code. The court further held that other debts and expenses owed by the estate are chargeable proportionately against all assets of tihe estate both real and personal pursuant to K. S. A. 1974 Supp. 59-1405 ( 5).
From the judgment of the trial court the administrators have duly perfected an appeal claiming the trial court erred in its decision.
A review of some basic principles regarding the federal estate tax and the marital deduction is necessary before we consider the arguments raised by the parties.
The federal estate tax is imposed on the transfer of the taxable estate of a decedent. (26 U. S. C. A. §2001.) The value of the taxable estate is determined by deducting from the gross estate an exemption of $60,000 and certain other deductions. (26 U. S. C. A. §§ 2051, 2052, 2053.) Included as a deduction is the marital deduction, which is an amount equal to the value of any interest in property which passes or has passed from the decedent to the surviving spouse, but not exceeding 50% of the value of the “adjusted gross estate.” (26 U. S. C. A. § 2056.)
The marital deduction was incorporated into the Internal Revenue Code in 1948, in order to place taxpayers in common law states on equal footing tax-wise with those in community property states, where one-half of the marital property was vested in the surviving spouse at the death of the other and was not subject to federal estate taxation. In general the deduction was intended to permit a surviving spouse to take a portion of his or her decedent spouse’s estate free from the burden of estate taxes. (1948 U. S. Code Cong. Serv., Vol. 2, pp. 1188-1191; Senate Rep. No. 1013, 80th Congress, 2d Session, 1948 — 1 I. R. B.)
Congress, however, made no attempt to apportion the burden of the estate tax. The law provides only that the tax shall be paid out of the estate as a whole, and that applicable state law shall govern how the tax burden shall be distributed among those who share in the estate. (Riggs v. Del Drago, 317 U. S. 95, 97, 98, 63 S. Ct. 109, 87 L. Ed. 106; Gallagher v. Smith, 223 F. 2d 218, 222, 223 [3d Cir. 1955]; and In re Estate of West, 203 Kan. 404, 406, 454 P. 2d 462.)
A number of states have specific statutes which provide for apportionment of the burden of the federal estate tax. Generally those statutes cause each person receiving a distribution from the estate to bear that part of the tax which accrued by reason of the value of the property he is to receive. In view of this principle the statutes provide that any marital deduction for federal estate tax allowed to the estate should inure to the benefit of the surviving spouse, and thus, the surviving spouse pays no federal estate tax on that portion of the estate which he or she receives in the form' of a marital deduction share. (See, Spurrier v. First National Bank of Wichita, 207 Kan. 406, 409, 485 P. 2d 209.) Kansas has not enacted a federal estate tax apportionment statute.
The administrators as appellants in this case contend that the trial court erred in its ruling that under Kansas law the value of property passing to a surviving spouse, to the extent it qualifies for the marital deduction, is not chargeable with federal estate tax liability. Appellants point to K. S. A. 1974 Supp. 59-1405 and argue that statute requires the assets of a decedent within defined classes to be reduced ratably to meet debts and demands raised against the estate. It is argued that since the federal estate tax is a lawful demand levied against the estate, all property within the appropriate class defined in 59-1405, including property which qualifies for the marital deduction, must contribute to the payment of such taxes.
At the outset we are told that under the method of computation employed by the appellants not only will the widows share of the estate be reduced by approximately $40,000, but also that the federal estate tax liability will be increased by nearly $20,000 beyond the figures established under the method utilized by the trial court. The foregoing is the result, where a surviving spouse must pay estate tax on property transferred, because such liability reduces the amount deductible pursuant to the deduction provisions and thereby increases the total estate subject to federal estate tax liability. The amount of the tax apportionable to the marital transfer is thus increased, thereby further reducing the marital transfer. (See 4 Mertens, Law of Federal Gift and Estate Taxation, Cum. Supp. [1972], §30.03, p. 702.)
Although no Kansas case bears directly on the question raised by the appellants, this court has had occasion to review the apportionment of federal estate tax liability in the past.
In In re Estate of Rooney, 186 Kan. 200, 349 P. 2d 916, decedent’s will provided that federal estate taxes assessed against the estate should be paid by the beneficiaries “each their proportionate share.” Upon settlement of the estate the executrix (widow), in computing the federal estate tax apportionment among the beneficiaries, took for herself the full marital deduction share free of the burden of any tax. One beneficiary challenged the distribution and apportionment claiming that his share was reduced by a larger portion of the tax than was properly chargeable to his share, and that the tax should have been spread over the entire estate, includ ing the widow’s share which qualified for the marital deduction. The district court held that for purposes of computing the proportionate amount of the tax owed by each beneficiary the marital deduction properly was to be excluded. On appeal this court expressly adopted the ruling of the lower court stating:
“ ‘It appears to this Court that the so-called marital deduction is in fact an exclusion. The property, or value thereof, set aside to the widow is not property subject to the Federal Estate Tax .as a part of the estate of the testator. It is included in the tax return only for the purpose of calculating the widow’s one-half interest (for estate taxes purposes) in the jointly owned property, and will be subject to taxation on the widow’s estate at her death.
“ ‘Thus the marital deduction is distinguished from the estate deduction or exemption of $60,000 since the latter is included in the taxable property, although no tax is levied on said $60,000.
“ ‘Therefore, the words of the Will “taxes which will be assessed against my estate” necessarily excludes the marital deduction since the same is not taxable property of the estate of Harry P. Rooney, deceased.’ ” (pp. 201, 202.)
In Spurrier v. First National Bank of Wichita, supra, this court referred to its decision in Rooney and stated:
“. . . Implicit in the decision is recognition of the principle that the marital deduction neither generates nor contributes anything to the tax liability of the estate — the tax impact on property passing by the deduction being postponed until death of the surviving spouse.” (p. 410.)
In Spurrier the widow of the decedent filed a timely election to take against the will as provided in K. S. A. 59-603. The executor of decedent’s estate charged the share to be received by the widow with its proportionate share of the husband’s federal estate tax. This apportionment was challenged. It was argued that the widow’s share, to the extent it qualified for the marital deduction under the provisions of the Internal Revenue Code, should not be charged with and reduced by any part of the federal estate tax levied against the husband’s estate.
The executor contended that K. S. A. 59-502 requires that federal estate taxes must be ratably apportioned against the entire estate before any distributive share is calculated and paid to the widow.
K. S. A. 59-502 was found to be inapplicable in the situation present in Spurrier. The court held that to the extent the statutory share distributable to a surviving spouse qualifies for the marital deduction it is not to be charged with or reduced by any part of the federal estate tax. In support of its holding the court stated:
“. . . The purpose of Congress in providing for the marital deduction was to equalize as nearly as possible estate and gift tax liability between community-property and common-law states. The only way such equality may be
accomplished is for the surviving spouse to be relieved from payment of any portion of the federal estate tax except on property received by her which contributes to or causes a part of the tax. Congress left it to the various states to determine whether each would take full advantage of the federal law and free the surviving spouse from the burden of the estate tax on property received by her which did not contribute to any part of the tax.
“When K. S. A. 59-502 was enacted in 1939, the tax advantage of the marital deduction did not exist. Consequently, the legislature could not have had in mind the benefits to be derived by taxpayers from such an enactment. The fact that the lawmakers have not amended K. S. A. 59-502 by the enactment of a specific apportionment statute leaving intact the marital deduction of the surviving spouse, should not preclude this court from applying equitable principles as we did in Rooney in order to give effect to the intent of Congress. We cannot attribute legislative inaction in this instance as an indication that taxpayers of this state were intended to be deprived of the benefits of the marital deduction amendment.” (pp. 410, 411.)
The principles set forth in Spurrier v. First National Bank of Wichita, supra, are applicable in the present case. K. S. A. 1974 Supp. 59-1405, like K. S. A. 59-502, was enacted in 1939, before Congress adopted the federal estate tax marital deduction. The failure of the Kansas legislature to enact an apportionment statute expressly recognizing the deduction should not be interpreted as an indication that taxpayers of this state were intended to be deprived of the full benefit of the marital deduction provision.
The United States District Court for Kansas has expressed similar sentiment in First National Bank of Topeka, Kan. v. United States, 233 F. Supp. 19, 27, 28. In that case the Commissioner of Internal Revenue challenged the amount of the marital deduction taken by the surviving spouse in the estate of her deceased husband. The government claimed that Kan. G. S. 1949, 59-1405 (now K. S. A. 1974 Supp. 59-1405) required that where a widow takes only a share of the residue of an estate, all debts owed by the estate, including federal estate taxes, must first be deducted and the burden cast upon the entire residuary interest including the widow’s share.
The court rejected the government’s interpretation of 59-1405 stating that view ignores the purpose of the marital deduction and the reason it was inserted in federal estate tax law. It was held that it would be unjust to attribute any part of the estate tax to the share of the widow where the purpose of Congress in allowing the marital deduction was to free the interest of the surviving spouse from the tax burden, and 59-1405 was held not to require the apportionment claimed by the government.
The reasoning of the federal court in First National Bank of Topeka, Kan. v. United States, supra, is equally persuasive in the present case.
Appellants in this case argue, however, that K. S. A. 1974 Supp. 59-1405 must apply where a testator has expressed no intent that certain property within his estate shall bear the burden of estate taxes. The issue of a testator s intent with regard to the apportionment of estate tax liability was reviewed in Dodd v. United States, 345 F. 2d 715 (3d Cir. 1965).
Dodd involved the question whether a surviving spouse’s share in the residuary estate of a testator should bear a share of the estate tax. The testator’s will divided his residuary estate into two equal parts: one-half to his children, the other to pass to his wife. The will contained no direction apportioning the tax burden and no apportionment statute existed under state law. The executors calculated the federal estate tax'by deducting the widow’s one-half share of the residuary estate without dimunition for any part of the tax. The government challenged the executor’s calculations and argued that the widow’s share must bear a prorate portion of estate tax liability where no contrary intent is expressed by the testator.
The court in Dodd noted that the marital deduction law was enacted to equalize estate tax consequences between taxpayers in community property and common law states. The court then reviewed the issue of the testator’s intent in the absence of an express testamentary provision of apportionment as follows:
“. . . It would, indeed, be difficult in the usual case, where the proportion of the residue left to the wife does not exceed the allowable marital deduction, to attribute to the testator an intention that his estate should pay an increased estate tax and that his widow’s distributable share should be reduced. In such cases there is no place for the operation of the canon of construction which imposed the burden of the estate tax on all who shared in the residue.
“. . . The will here made the classic devise and bequest to the wife of one-half of the residuary estate, which is the maximum allowable as the marital deduction, and gave the remaining one-half to the children. It is true that if the wife is relieved of the estate tax the children’s remaining one-half of the residue will be reduced by requiring it to bear all of the estate tax. But the alternative is either to reduce the share of the children by requiring them to bear the entire but smaller estate tax, or to reduce the wife’s share and thus increase the total estate tax. A will written after the marital deduction provision was established, which grants a wife a share of the residue similar to that authorized as the marital deduction is presumably intended to come within that provision. Even if the wife and children were to be considered equally the intended beneficiaries of the testator’s bounty, the balance would be overcome by tire consideration of reducing the total estate tax. In these circumstances, therefore, we may impute to the testator the intention that his estate and his wife alike should have the fullest benefit of the marital deduction. Moreover, even if it were thought that the testator’s ‘most probable’ intention did not appear, and it became necessary to resort to a presumption, the presumption would be that the testator intended his estate to have the full benefit of the marital deduction. It follows therefore that the wife’s share of the residue is not to be reduced by requiring it to bear any portion of the estate tax.” (pp. 718, 719.)
The reasoning expressed by the court in Dodd is sound. Accordingly we hold in this case that where a testator does not provide directions in his will for the apportionment of federal estate tax liability, it is presumed that he intended his estate and surviving spouse to' have the fullest benefit of the marital deduction. Therefore, the surviving spouse’s share of the estate, to the extent it qualifies for the marital deduction under federal estate tax law, may not be reduced by requiring it to bear any portion of estate tax liability.
The final point presented involves the application of K. S. A. 1974 Supp. 59-1405 to determine the method of apportioning debts and expenses of the estate, other than the federal estate tax, to property passing to beneficiaries under testator’s will.
It is appellants’ position that property passing under the third paragraph of the will constitutes “personal property bequeathed to the residuary legatee” within the meaning of K. S. A. 1974 Supp. 59-1405 ( 3) and thus this property alone must bear the burden of debts and expenses owed by the estate. Such a determination would of necessity require a finding that the third paragraph provides a residuary bequest.
A residuary clause is that part of the will which disposes of property not expressly disposed of by other provisions of the will. (4 Bowe-Parker: Page on Wills, [1961], § 33.46, p. 369.) Although a residuary clause, in a strict sense, would seem to presuppose prior particular bequests or devises, a bequest of “all” of a testator’s property or estate has been treated as a residuary clause. (57 Am. Jur., Wills, § 1416, pp. 947, 948.) However, where a testator divides all of his property into fractional shares and provides that each member of a group of named beneficiaries is to receive a portion of the estate it has been held that no residuary estate is created. (Adams v. Adams, 261 N. C. 342, 134 S. E. 2d 633.)
In the present case property passing under both the second and third paragraphs of the will can best be described as “property not specifically bequeathed or devised” under the terms of K. S. A. 1974 Supp. 59-1405 (5). On that basis debts and other demands against the estate, other than the federal estate tax, are chargeable against all property both real and personal passing under the will. The judgment of the lower court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for a sum cláimed to be due for damages because of defendant’s failure to perform a contract between the parties. The jury answered special questions and retümed a general verdict for plaintiff, which was modified by the court, and judgment was rendered for plaintiff. Defendant has appealed.
Briefly'the facts may be thus stated: Plaintiff, then a young man about twenty years of age, in the early months of Í930 was employed by the Rajah Rabbitry at Wichita, which at that time was a financially thriving business concern. In some way he met defendant, who was then vice president and cashier of one of the Wichita banks. Defendant became interested in the rabbit business and together the parties planned to go into that business. Early in March they went to the office of an attorney in Wichita and had him prepare a contract, which they executed. This contract recited that the parties contemplated: (1) Establishing a rabbitry, or rabbitries, at Oklahoma City, Okla., and other points throughout the United States, and (2) promoting a corporation to finance and operate such rabbitries. By the terms of the contract they agreed: First, to make application for a charter for a corporation with $1,000,000 capital stock, and to take steps as rapidly as possible to complete the organization. Second, since the parties planned to obtain most of the stock in exchange for plans,' devices and equipment ; — and it would be necessary to Use some of the stock in the organization of the corporation — it was agreed that the stock should be •owned by the parties in equal amounts, arid “that all stock which may be necessary to be transferred or given in promoting said corporation shall be contributed equally.” Third, that the expenses of financing the corporation “shall be paid for from funds procured in promotion of the organization,” but preliminary funds should be furnished by the parties in equal amounts. Fourth, that plaintiff should devote his entire time to the business and defendant should devote his time “in ari advisory capacity as may be needed.” Fifth, the parties agreed upon a name for the corporation. Sixth, it was agreed that in all transactions between the parties, or with relation to the proposed business, they should be jointly interestéd “both in the matter of income and the matter of expenditures.” Plaintiff had no money to invest in the enterprise', but he knew, or thought he knew, the business arid was willing to devote his time to it. It was contemplated to organize the corporation at once, but on the advice of their attorney that something tangible would have to be turned over to the corporation for its stock, the parties proceeded to acquire rabbits arid equipment. Through defendant, plaintiff executed a note to the bank where defendant was employed for $500, the proceeds of which were so used. Defendant stated that he did not want to sign the note for the reason that he did not desire the note with his name on it in the bank, and did not want the president of the bank to know that he was devoting a part of his time to a side enterprise of this character. As other funds were needed additional notes were given, and at defendant’s suggestion plaintiff’s parents ■signed the notes, or some of them, with plaintiff, to procure needed funds. There is evidence that the parties consulted and agreed with respect to everything that was done. Defendant gave plaintiff letters of introduction to persons in Oklahoma City, whom plaintiff interviewed with the view of interesting them in helping establish a rabbitry at Oklahoma City. On one occasion defendant went to Oklahoma City and while there called plaintiff by telephone and had him go there and introduced him to parties whom he thought might assist. Rabbits and equipment were purchased and expenses incurred to the amount of about $9,000 by the latter part of April. Plaintiff’s evidence was to the effect that defendant then declined to go forward with the project and he was compelled to close it out. About that time other rabbitries in this part of the country were meeting financial reverses and the outlook for the business was not good.
Defendant’s principal contention was that on the day after the contract had been prepared by the attorney and executed by the parties they mutually agreed to abandon the enterprise, and that he had nothing further to do with it. On that point there was conflicting evidence in the trial court. In answer to a special question the jury found that the business enterprise was not so abandoned. This finding was approved by the trial court. There is an abundance of evidence to sustain it, and it is binding here.
Appellant argues that under the written agreement he was bound only to pay one-half of the preliminary expenses of organizing the corporation, and since the corporation was not organized there were no such expenses. This is an inaccurate interpretation of the contract. It is true by the contract the parties were each bound to pay one-half the preliminary expenses of organizing the corporation, but it is also true that by the agreement their declared purpose was to go into the rabbit business, and it was specifically provided in paragraph No. 6 that the parties should be jointly interested in the matter, not only of income, but of expenditures as to all the business contemplated by their contract.
The court, in its rulings and instructions, treated the relation of the parties as being that of partners. Appellant complains of this. Perhaps more accurately it was in the nature of a joint adventure; but as between the parties, on an accounting between them, or liabilities one to the other, the relations would be the same; hence there was no error in that ruling.
Appellant contends if the parties were partners the action was in the nature of an accounting triable to the court, hence that their objection to submitting the case to a jury should have been sustained. Even if it were triable to the court, a jury might have been called in an advisory capacity. In effect that was what was done here. The jury answered special questions, which the court later approved, but the court declined to follow the general verdict of the jury, making its own computation. But passing that. Here the defendant denied all liability. Among other things, plaintiff asked for damages because of defendant’s failure to carry out his contract. What plaintiff really did was to set out the facts, as our code provides. At this stage of the matter it would not make much difference whether the action would be properly classified as one for specific performance, or for an accounting, or for damages. Defendant answered, raising all the questions he desired, and the entire controversy has been heard and determined. It could serve no useful purpose to send this case back to have it tried to the court alone.
The case is almost entirely one of controverted facts. Aside from the preparation and execution of the written contract practically every question in the case was controverted in the parol testimony. There is an abundance of evidence to sustain the findings of the jury, and the judgment rendered. It was the function of the jury and the trial court to pass upon the conflicts of testimony. No good purpose would be served in setting this testimony out in detail. There is no material error in the récord. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
A fraternal beneficiary society issued a benefit certificate to a member. At his death several persons claimed the proceeds of the certificate. The society interpleaded the claimants and paid the money into court. The claim of Julia Zupancic was denied, and she appeals.
The petition alleged the certificate was issued to Anton Zupancic, and was in force at the time of his death, and stated the contentions of the various claimants. When the certificate was issued Anna Rebsel, a niece of the member, was designated beneficiary. After-wards the children of Anna Rebsel, Stefany Anzel, Tony Anzel and Frank Anzel, were designated beneficiaries. At the time of the member’s death Julia Zupancic was the designated beneficiary. Julia Zupancic claimed as wife and dependent of the member. Stefany, Tony and Frank Anzel claimed as designated beneficiaries. Brothers and sisters of the member claimed as by-law beneficiaries. The petition contained, among others, the following allegations:
“That it has been claimed to the plaintiff society that Julia Zupancic was not the wife of said Anton Zupancic at the time of his death, and that she is not his proper beneficiary under the by-laws of plaintiff society, and that she is not entitled to receive said sum as the named beneficiary of Anton Zupancic, deceased, and that the plaintiff society does not know if Julia Zupancic was in fact the wife of Anton Zupancic at the time of his death, . . .
“That the various defendants have, do and are now threatening to bring action against the plaintiff to compel payment in full to each of them of said money, and without regard to the rights of plaintiff, and that it has not, at any time, colluded with any of said defendants, and that it does not know which of said defendants is legally entitled to said money and to whom of said defendants it ought of right to pay said money, and that it cannot safely pay said money to any of said defendants, and by the payment thereof be protected against the other defendants, . . .
“That the defendants and each of them should be required and compelled to appear in this action and to interplead herein and state their several claims on said money . . . and that the claims, demands, interests and rights of each and all of said defendants in and to said money due from the plaintiff society to the beneficiary or beneficiaries, if more than one, of Anton Zupancic, should be determined and fully settled in this action.”
The petition concluded with an appropriate prayer. Julia Zupancic answered, and without alleging she was married to Anton Zupancic, alleged she was his wife and dependent upon him, and was entitled to the fund. The answers of other claimants alleged that Julia Zupancic was not the wife of Anton Zupancic nor dependent on him, and alleged that her claims as beneficiary were false and fraudulent. The answers also stated the facts on which the claims of the answering defendants were based.
The case was tried by the court. After the trial was concluded, and while the court held the case under advisement, Julia Zupancic filed a motion for judgment on the pleadings. The motion was denied, and denial of the motion is assigned as error. The motion was based on the decision of this court in the case of Obrist v. Grand Lodge, 123 Kan. 616, 256 Pac. 955. The syllabus reads:
“1. In an action between a named beneficiary and the heirs of the insured to determine the right to the proceeds of a fraternal beneficiary policy, the evidence examined, and held sufficient to support a finding that the named beneficiary was a dependent of the insured.
“2. The benefit society alone can raise the objection that the beneficiary designated in a certificate does not come within the class who may be designated under its by-laws.”
The second paragraph of the syllabus and the corresponding portions of the opinion were superfluous. Conceding they were correct, they do not govern the present controversy.
In the cited case, Obrist and others sued the society as heirs at law of the certificate • holder. The beneficiary designated in the certificate was made a party defendant, •, The society d.id not contest liability on the certificate, and raised ¡¡no' question concerning eligibility of the designated beneficiary t'O receive the proceeds of the certificate. In this instance the society took the initiative. It was plaintiff. The petition disclosed that eligibility of the designated beneficiary had been challenged by claimants who were entitled to the fund if the designated beneficiary were ineligible. The purpose of the action was to bring the conflicting claims before the court for determination. While the society did not champion any claimant it presented to the court the question of the eligibility of the designated beneficiary, and manifested assent and desire that the fund should be paid to others if the designated beneficiary were not qualified to receive it.
In order that the Obrist case may not be misapplied, it should be observed that the society which issued the certificate involved in that case was governed by the law of this state relating to fraternal beneficiary societies. That law restricted payment of benefits to designated persons and classes of persons. Such restrictions are not for the benefit of the society alone, and the society lacked power, by silence, inaction, waiver, or otherwise, to recognize a disqualified beneficiary. In such cases one entitled to receive the fund if the designated beneficiary is disqualified may raise the question of disqualification.
Julia Zupancie asserted that from December 7, 1927, to May 1, 1928, when the death of Anton Zupancie occurred, she was his common-law wife. The society was organized under the law of the state of Illinois. The answers of claimants other than Julia Zupancie pleaded that the statute law of Illinois declared common-law marriages to be null and void. At the trial a book called “Revised Stat utes of Illinois, 1905,” was received in evidence. Section 4 of chapter 89 contained the pleaded statute. It is contended here the volume was not properly authenticated. The objection made at the trial was that the book was “not properly introduced.” The reason for the impropriety was not revealed to the court. It is not contended that the statute was not pertinent to the issues. Whether the court gave consideration to the statute is not disclosed.
The issue of fact whether Julia Zupancic was common-law wife or dependent of Anton Zupancic was tried. Julia Zupancic was a witness in her own behalf. The court may have disbelieved material portions of her testimony, and there was substantial evidence from which the court might conclude she was not a qualified beneficiary. The court found generally in favor of Stefany, Tony and Frank Anzel.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
LOCKETT, J.:
The district judge imposed maximum sentences of 15 years to life on each count of second-degree murder, but failed to state whether the sentences were to run concurrently or consecutively. Subsequently, the trial court ordered the sentences to run consecutively. Royse appeals, claiming the district judge had no jurisdiction at that time to enhance his sentence by ordering the sentences be served consecutively.
On July 16, 1991, Daniel Ray Royse pled guilty to two counts of second-degree murder of his 87-year-old grandmother and 70- year-old aunt. On August 29, 1991, the district court sentenced Royse to a term of 15 years to life on each count, stating:
“Well, prior to fixing sentence, I want the record to be very clear that I have considered all of the criteria for fixing minimum terms as outlined by K.S.A. 21-4606, and several questions that I have asked here today [are] in line with that statute. It will be the sentence of the Court on Count I of the Information that you serve a sentence of not less than fifteen, not to exceed twenty years — not to exceed life imprisonment in the state penitentiary. Count II of the Information, that you serve a term of not less than fifteen, not to exceed life confinement in the state penitentiary. Those are the maximum sentences there, Mr. Royse. You will be committed to the Secretary of Corrections. You will be referred to the Kansas Reception and Diagnostic Center for report back to this Court within 120 days. Possible modification of sentence at that time, or I’m sure Mr. Casebeer will file appropriate applications for whatever.”
When imposing the sentence, the court failed to address whether the two sentences were to run concurrently or consecutively. When the trial court realized its omission, it ordered the defendant to appear on September 5, 1991. Sua sponte, the court ordered the sentences to run consecutively, stating:
“I overlooked when I sentenced him last week for a variety of reasons whether or not the sentences imposed were to be run consecutive or concurrent. Since I neglected to make that finding in open court, I’m going to do it today.
“It’s the order of the Court that the sentences imposed by the Court last week be consecutive.”
Royse appeals the order directing the sentences to be served consecutively. The defendant asserts once the sentence had been imposed, the district judge’s power to modify the sentence is limited to reducing the sentence.
For authority from other jurisdictions, defendant cites Ex Parte Reynolds, 462 S.W.2d 605 (Tex. Crim. App. 1970). In Reynolds, the trial court imposed two separate sentences upon the defendant for two separate crimes. The court failed to state on the record whether the sentences were to run concurrently or consecutively. Texas had a statute in effect providing that where a trial court fails to order that two or more sentences in different prosecutions shall be cumulative, the terms of imprisonment automatically run concurrently. Four days after sentence was pronounced, the defendant was returned to court and informed by the judge that the sentences would run consecutively. The reviewing court noted that, when a court does not order that two or more sentences in different prosecutions shall be cumulative as permitted by statute, the terms of imprisonment automatically run concurrently. It found that the order of consecutive sentences was void and of no effect and that the concurrent sentences originally imposed remained in full force and effect.
As for statutory authority for the proposition that the judge could not enhance the original sentence imposed, the defendant points to two statutes, K.S.A. 1991 Supp. 21-4603(4)(a) and K.S.A. 1991 Supp. 21-4608(1). K.S.A. 1991 Supp. 21-4603(4)(a) provides in part that “at any time within 120 days after a sentence is imposed . . . the court may modify such sentence ... by directing that a less severe penalty be imposed.” K.S.A. 1991 Supp. 21-4608(1) provides in part that “[w]henever the record is silent as. to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently.”
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs. State v. Cole, 238 Kan. 370, 371, 710 P.2d 25 (1985). When a penal statute is questioned, the court is required to strictly construe the act in favor of the accused. State v. Cole, 238 Kan. at 372. However, this rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and intent. State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 (1985). Words in common usage are to be given their natural and ordinary meaning. State v. Magness, 240 Kan. 719, 732 P.2d 747 (1987); Szoboszlay v. Glessner, 233 Kan. 475, 478, 664 P.2d 1327 (1983).
In interpreting 21-4603(4)(a), we must strictly construe the statute in favor of the accused. State v. Magness, 240 Kan. at 721. The question is whether the statute allows a sentence to be modified by imposing a greater sentence. The predecessor statute, G.S. 1949, 62-2239 (1959 Supp.), provided a district court the authority to “modify a sentence within sixty (60) days after it is imposed.” In construing that language, we stated that the word “modify” empowered the court to reduce a sentence but did not authorize it to increase a sentence. Veronee v. State, 193 Kan. 681, 683, 396 P.2d 360 (1964). Both the case law interpreting the predecessor statute and the clear language of 21-4603(4)(a) prohibit the court from increasing sentences.
Defendant argues that because the trial court did not order the sentences to run consecutively when the sentence was pronounced, K.S.A. 1991 Supp. 21-4608(1) precludes the judge’s subsequent order directing that the sentences be increased by ordering the sentences to be served consecutively.
The State claims the “record” referred to in 21-4608(1) is the record of judgment/joumal entry referred to in K.S.A. 22-3426. The State asserts 21-4608 directs the Secretary of Corrections to apply the less stringent penalty of concurrent sentences if the record does not specify that sentences are to be served consecutively. It argues because no journal entry had been filed at the time the judge ordered the sentence to be served consecutively, the statute is not relevant. The State also notes a district court may correct an illegal sentence by later imposition of a proper sentence. K.S.A. 22-3504. Although the State does not claim the original sentence is illegal, apparently it is the State’s hope that this court will decide the judge’s subsequent imposition of consecutive sentences was not an enhancement of the original sentence.
Ordinarily, in a legal sense, “sentence” is synonymous with “judgment” and denotes the action of a court of criminal jurisdiction formally declaring to the defendant the legal consequences of the guilt to which he has confessed or of which he has been convicted. Roberts v. State, 197 Kan. 687, Syl. ¶ 1, 421 P.2d 48 (1966). In criminal cases, the judgment must be rendered and sentence imposed in open court. The judgment in a criminal case, whether it imposes confinement, imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench. The court’s judgment and sentence in a criminal case do not derive their effectiveness from the journal entry, or from any act of the clerk; they are effective when announced. State v. Moses, 227 Kan. 400, Syl. ¶¶ 1, 2, 3, 607 P.2d 477 (1980).
In State v. Zirkle, 15 Kan. App. 2d 674, 814 P.2d 452 (1991), the district judge sentenced the defendant to a term of one to five years’ imprisonment. After imposing the sentence, the judge inquired as to the jail time the defendant had already served, vacated the sentence, and ordered that the sentence be increased to two to five years. 15 Kan. App. 2d at 675. The Court of Appeals noted State v. Moses, 227 Kan. at 402-03, and found that Zirkle had been sentenced when the judge announced the one- to five-year sentence from the bench.
Once a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence. State v. Zirkle, 15 Kan. App. 2d at 678.
Royse’s sentencing was complete when orally pronounced on August 29, 1991, and could not subsequently be increased on September 5, 1991. The sentences must be served concurrently.
The order imposing consecutive sentences is vacated, and the case is remanded with directions to order the sentences to be served concurrently. | [
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The opinion of the court was delivered by
LOCKETT, J.:
Jerrell Edward Larry appeals from the denial of his motion to withdraw his guilty plea to murder in the first degree (felony murder). K.S.A. 21-3401. Larry claims the district court abused its discretion in not allowing him to withdraw his guilty plea prior to sentencing.
Shortly after midnight on April 28, 1990, Sean Malloy, his 17-year-old girlfriend, Sara Foulk, and their 4-month-old infant stopped at a Price Chopper foodstore in Kansas City, Kansas. As he was getting out of his automobile, Malloy observed two black males in the parking lot. He locked the car and went inside. Foulk and the infant remained in the car. Less than five minutes later, Malloy came out of the foodstore to find that his car and baby were gone, and his girlfriend, who had been shot, lay dying on the ground. The car and the infant were recovered at different locations a few hours later.
Jerrell Edward Larry and James Poole separately surrendered to the authorities. Each was charged with aggravated robbery and the felony murder of Sara Foulk. Because of inconsistent defenses, the two were tried separately. Poole, who was tried first, was. convicted by a jury of aggravated robbery and found not guilty of felony murder.
Larry’s jury trial commenced the 14th day of January, 1991. On the third day of the trial, after the State had rested its. case, the State and the defendant informed the trial judge they, had reached a plea agreement. As part of the plea agreement, the charge of aggravated robbery was dismissed. In addition, the State agreed to make no comment regarding any issues at defendant’s sentencing hearing.
During a trial, a plea of guilty to a felony charge may be accepted when made in open court. Prior to accepting the plea of guilty, the judge must inform the defendant of the consequences of the plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea. The judge must address the defendant personally and determine that the plea is made voluntarily with an understanding of the nature of the charge and the consequences of the plea. If the court is satisfied that there is a factual basis for the plea, it may be accepted. K.S.A. 22-3210(a)(l)-(3).
Before he pled, Larry complained to the judge that the trial had been unfair because the judge had excluded his witnesses from testifying and wrongly ruled on his motions. The trial judge explained to Larry that those were legal rulings and asked Larry whether he believed the court had personally treated him with prejudice. Larry answered, “No.”
After asking questions to determine if Larry’s decision to plead was freely, voluntarily, and intelligently made, the judge asked Larry to explain what had happened. Larry stated that after the man left the car, he and Poole attempted to take the car to joyride. When Larry approached the car, he discovered a young lady in the car. He informed Poole, then told her to get out of the car. She said no. He informed Poole the lady refused. At that time, Poole pulled a gun and told Larry to tell her that he (Poole) had a gun. Larry told her that Poole had a gun. Larry stated he then heard a shot and a window shattering, saw the young lady jump out of the car screaming, run around the car, and then lay down. Larry claimed he did not know she had been shot by Poole. He assumed she had been frightened. As they drove away in the car, Larry asked Poole if he shot her. Poole said, no, she was just scared. After they left the parking lot, Larry discovered the baby in the back seat of the car. They decided to take the baby to the police station, but instead Larry left the baby on the porch of an abandoned house near a police station. Poole then drove to another area where he removed the car’s radio. Later, when a police officer observed the car at a service station, Larry jumped out of the car and ran. During a later discussion with Larry’s sisters and the sisters’ friends, Poole admitted he had shot the woman. Larry and Poole eventually decided to surrender to the police.
The judge accepted Larry’s plea, finding it was freely, voluntarily, and intelligently made, then dismissed the jury. Sentencing was deferred to a later date. Prior to sentencing, Larry filed a motion to withdraw his plea of guilty. At the hearing on his motion, Larry contended his plea was involuntarily induced by the trial judge’s misstatements of the law, the judge’s refusal to allow his witnesses to testify, and his attorney’s insistence that he would be found guilty. The motion to set aside the plea was denied. Larry was sentenced to a term of life imprisonment. Larry appeals the trial judge’s denial of his motion to withdraw his guilty plea.
To justify the withdrawal of his plea, on appeal Larry additionally contends that the trial judge should have informed him that he had the right to appeal adverse trial rulings and the judge should have explained that by pleading guilty he waived his right to have an appellate court review erroneous trial rulings. Larry asserts that if informed of the right to appeal, he would not have entered a plea, and if found guilty, he would have appealed the judge’s erroneous trial rulings. Was the sentencing judge required to inform Larry of a right to appeal after Larry pled guilty?
An appeal may be taken by the defendant as a matter of right from any judgment against the defendant in the district court. A defendant is required to be sentenced without unreasonable delay after conviction by a judge or jury. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court must advise the defendant of the right to appeal. K.S.A. 22-3424(5). A defendant, however, may not appeal from a judgment of conviction upon a plea of guilty or nolo contendere. K.S.A. 22-3602(a).
A guilty plea is an admission of the truth of the charge and every material fact alleged. United States v. Broce, 488 U.S. 563, 569, 102 L. Ed. 2d 1, 109 S. Ct. 202 (1989). A plea of guilty, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. K.S.A. 22-3210(d). The appropriate standard for review is whether the trial court abused its discretion in refusing to allow withdrawal of the guilty plea. To justify a motion to withdraw the plea prior to sentencing, the motion should allege that the defendant is not guilty of the offense charged; that the plea was made because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea. State v. Nichols, 167 Kan. 565, Syl. ¶ 5, 207 P.2d 469 (1949).
Larry-asserts because there was good cause to set aside his plea, the district judge abused his discretion in not allowing him to withdraw his guilty plea. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Martin, 237 Kan. 285, Syl. ¶ 2, 699 P.2d 486 (1985). A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104 (1991).
Larry first argued in the district court that the district judge erroneously misstated the law. At the sentencing hearing, the judge informed the defendant: “Since this is a felony murder, it doesn’t make any difference who shot the victim as long as that victim was shot and killed during the perpetration of the robbery. Do you understand that?” Larry answered, “Yes.” Later, the court advised Larry that he was pleading “to the fact that during the perpetration of the crime of aggravated robbery someone was killed.”
. Larry asserts the court’s misstatement of criminal liability for felony murder caused him to make an unknowing and unintelligent waiver of his right to a trial. Larry states that all he intended was to joyride and he did not have the gun. He surmises that if he had not pled guilty, the jury might have decided that he was nót responsiblé for Poole shooting the young lady, disregarded the judge’s instruction of the law, and found him guilty of a lesser offense.
Larry’s claim that the judge misstated the law is incorrect. Felony murder in the first degree is the killing of a human being committed in the perpetration of or attempt to perpetrate any felony. K.S:A. 1989 Supp. 21-3401. This argument also disregards that both the evidence adduced at trial and admitted in Larry’s plea of guilty is sufficient for a reasonable factfinder to find beyond a reasonable doubt that Larry was guilty of felony murder and aggravated robbery.
Larry next claims the trial judge’s refusal to allow his witnesses to testify deprived him of his right to present a defense. Larry attempted to call Poole and others who allegedly had heard Poole state that Poole had shot the woman in the car. The trial judge excluded Poole’s testimony because Poole claimed his Fifth Amendment right not to testify.
Poole had testified during his own trial that Larry, not Poole, had fired the fatal shot. When Poole was informed that he would be called to testify in Larry’s trial, Poole’s attorney informed the judge his client would take the Fifth Amendment to keep from perjuring himself. The trial judge found Poole would not be available for cross-examination and excluded his testimony.
The Fifth Amendment operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly expose him or her to a criminal charge. Ullmann v. United States, 350 U.S. 422, 431, 100 L. Ed. 511, 76 S. Ct. 479, reh. denied 351 U.S. 928 (1956). Poole’s subsequent testi mony about the crime for which he had already been charged and found guilty could not expose him to further criminal charges. Here, Poole claimed that if he testified under oath in Larry’s trial, his testimony might subject him to the crime of perjury. Under these circumstances, the trial judge’s refusal to require Poole to be called to the stand as a witness and then allowed to take the Fifth Amendment was correct.
The trial judge also excluded testimony of Larry’s sisters and their friends. Prior to surrendering to the authorities, Poole and Larry had discussed with these witnesses what had occurred. Poole admitted to the witnesses that he had fired the fatal shot. The trial judge determined that because of the relationship between Larry and his witnesses, the witnesses’ testimony would be unreliable hearsay.
Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible. K.S.A. 1991 Supp. 60-460. Larry admits that although Poole’s statement to the witnesses is hearsay, it was a declaration against Poole’s interest and admissible under K.S.A. 1991 Supp. 60-460(j). That exception makes admissible a statement which the judge finds so far subjected the declarant to civil or criminal liability at the time of the assertion, that the declarant would not have made the statement unless it was true.
Larry claims that the trial judge, rather than finding that the statement was not against Poole’s interest, usurped the jury’s function to weigh that evidence. We agree. But that fact does not entitle Larry to a new trial. That evidence if admitted, would be sufficient for the jury to find the defendant guilty of the offenses charged.
A review of all of the evidence adduced or wrongfully excluded during the trial is sufficient to convict the defendant of the charges contained in the information. The plea was not entered because of fraud, duress, mutual mistake, or lack of understanding of the charge and the effect of the plea. Larry has failed to show that the judge abused his discretion by refusing to allow the withdrawal of the plea prior to imposing sentence.
Affirmed. | [
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|
The opinion of the court was delivered by
Holmes, C.J.:
Shane Seyer et dL, appeal from an order of the district court granting the Kansas Department of Social and Rehabilitation Services (SRS) judgment for amounts paid for the birth and support of Seyer’s daughter and ordering Seyer to pay monthly child support reimbursement to SRS.
The facts, as best we can determine them from an inadequate record, do not appear to be seriously in dispute.
Colleen Hermesmann routinely provided care for Shane Seyer as a baby sitter or day care provider during 1987 and 1988. The two began a sexual relationship at a time when Colleen was 16 years old and Shane was only 12. The relationship continued over a period of several months and the parties engaged in sexual intercourse on an average of a couple of times a week. As a result, a daughter, Melanie, was bom to Colleen on May 30, 1989. At the time of the conception of the child, Shane was 13 years old and Colleen was 17. Colleen applied for and received financial assistance through the Aid to Families with Dependent Children program (ADC) from SRS.
On January 15, 1991, the district attorney’s office of Shawnee County filed a petition requesting that Colleen Hermesmann be adjudicated as a juvenile offender for engaging in the act of sexual intercourse with a child under the age of 16, Shanandoah (Shane) Seyer, to whom she was not married, in violation of K.S.A. 1992 Supp. 21-3503. Thereafter, Colleen Hermesmann entered into a plea agreement with the district attorney’s office, wherein she agreed to stipulate to the lesser offense of contributing to a child’s misconduct, K.S.A. 1992 Supp. 21-3612. On September 11, 1991, the juvenile court accepted the stipulation, and adjudicated Colleen Hermesmann to be a juvenile offender.
On March 8, 1991, SRS filed a petition on behalf of Colleen Hermesmann, alleging that Shane Seyer was the father of Colleen’s minor daughter, Melanie. The petition also alleged that SRS had provided benefits through the ADC program to Colleen on behalf of the child and that Colleen had assigned support rights due herself and her child to SRS. The petition requested that the court determine paternity and order Shane to reimburse SRS for all assistance expended by SRS on Melanie’s behalf. On December 17, 1991, an administrative hearing officer found Shane was Melanie’s biological father. The hearing officer further determined that Shane was not required to pay the birth expenses or any of the child support expenses up to the date of the hearing on December 17, 1991, but that Shane had a duty to support the child from the date of the hearing forward.
Shane requested judicial review of the decision of the hearing officer, contending that the hearing officer “should have found a failure of consent would terminate rights.” SRS sought review, asserting that the hearing officer correctly ruled that the issue of consent was irrelevant, but erred in allowing Shane to present evidence pertaining to the defense of consent.. SRS also alleged that the hearing officer’s denial of reimbursement to the State for funds already paid was arbitrary and capricious and contrary to the mandates of K.S.A. 1992 Supp. 39-718b.
The district judge, upon judicial review of the hearing officer’s order, determined that Shane was the father of Melanie Hermesmann and owed a duty to support his child, stating:
“Okay. I’m ready to rule. It’s my view in this case that the Hearing Officer’s ruling, which essentially is that a minor may be held legally liable to provide reimbursement to the State of Kansas under K.S.A. 39-701 et seq., is a correct ruling of law and that the issues of consent and the criminal case and so forth are not really relevant in a paternity proceeding, which we’re talking about, civil liability to support a child.
“Second, I’m going to hold that the State, by proceeding under 39-701 et seq., that there is no discretion in the Court regarding liability. The courts, I believe, are ministerial at that point and are the vehicle for SRS to collect the support and it was error for the Hearing Officer not to assess all of the monies paid jointly and severally liable against both of the parents of this child.
“And so I would enter a judgment for all of the SRS reimbursement against Colleen Hermesmann and Shane Seyer joindy and severally for the six thousand plus.”
The court found that the issue of Shane’s consent was irrelevant and ordered Shane to pay child support of $50 per month. The court also granted SRS a joint and several judgment against Shane and Colleen in the amount of $7,068, for assistance provided by the ADC program on behalf of Melanie through February 1992. The judgment included medical and other birthing expenses as well as assistance paid after Melanie’s birth. Shane appeals the judgment rendered and the order for continuing support but does not contest the trial court’s paternity finding. SRS has not cross-appealed from any of the orders or judgment of the district court.
This case was transferred from the Court of Appeals by this court’s own motion. K.S.A. 20-3018(c).
Shane has designated three issues on appeal, which he states as follows:
“I. Can a minor, who is a victim of the crime of indecent liberties with a child, be responsible for any children conceived of the criminal union?
“II. Is it sound public policy for a court to order child support when the order creates a clash of one minor’s right to protection from being the victim of a crime with another minor’s right to parental support?
“III. Can a judgment ordering joint and several liability for child support be an adequate remedy when it fails to account for the wrongdoing of Plaintiff-appellee Hermesmann?”
Shane’s argument on appeal is based on three basic premises. (1) Shane Seyer, as a minor under the age of 16, was unable to consent to sexual intercourse. (2) Because he was unable to consent to sexual intercourse, he cannot be held responsible for the birth of his child. (3) Because he cannot be held responsible for the birth, he cannot be held jointly and severally liable for the child’s support.
Shane asserts as his first issue that, because he was a minor under the age of 16 at the time of conception, he was legally incapable of consenting to sexual intercourse and therefore cannot be held legally responsible for the birth of his child. Shane cites no case law to directly support this proposition. Instead, he argues that Colleen Hermesmann sexually assaulted him, that he was the victim of the crime of statutory rape, and that the criminal statute of indecent liberties with a child should be applied to hold him incapable of consenting to the act.
What used to be commonly called “statutory rape” is now included in the statutory crime of indecent liberties with a child. The statute, K.S.A. 1992 Supp. 21-3503, reads in pertinent part:
“(1) Indecent liberties with a child is engaging in any of the following acts with a child who is under 16 years of age:
(a) Sexual intercourse.”
Both the administrative hearing officer and the district court determined that whether Shane consented to sexual intercourse was not a relevant issue in a civil paternity and child support proceeding.
SRS maintains that Shane was not the victim of the crime of statutory rape. SRS points out that while Colleen was originally charged in juvenile proceedings with a violation of K.S.A. 1992 Supp. 21-3503, she later stipulated to a lesser charge of contributing to a child’s misconduct, K.S.A. 1992 Supp. 21-3612. While SRS is technically correct in asserting that Colleen was never found guilty of violating 21-3503, its entire case is based upon the fact that Shane is the father of the child. As it is undisputed that Shane was under the age of 16 when conception occurred, and throughout the entire time the sexual relationship continued, the argument of SRS is specious at best. The admitted facts established, without doubt, all of the elements necessary to prove a crime under K.S.A. 1992 Supp. 21-3503(l)(a), and the fact that Colleen was able to plea bargain for a lesser offense does not preclude Shane from alleging he was a “victim” of statutory rape.
Although the issue of whether an underage alleged “victim” of. a sex crime can be held liable for support of a child born as a result of such crime is one of first impression in Kansas, other jurisdictions have addressed the question.
In In re Paternity of J.L.H., 149 Wis. 2d 349, 441 N.W.2d 273 (1989), J-J.G. appealed from a summary judgment in a paternity proceeding determining that he was the father of J.L.H. and ordering him to pay child support equal to 17 percent of his gross income. J.J.G. was 15 years old when the child was conceived. On appeal, he asserted that the child’s mother, L.H., sexually assaulted him, contrary to Wis. Stat. § 940.225(2)(e) (1979) (the Wisconsin statutory rape statute in effect at the time), and that, as a minor, he was incapable of consent under the sexual assault law. The court rejected this argument and stated:
“The assumption underlying appellant’s opposition to the motion for summary judgment is that a putative father in a paternity action has a defense if the sexual intercourse occurred without his consent. The amended civil complaint which his opposing affidavit incorporates alleges that the child bom to L.H. was ‘the result of nonconsensual sexual assault in violation of sec. 940.225(2)(e), Wis. Stats.’ .... That statute provides that it is a felony for a person to have ‘sexual intercourse with a person who is over the age of 12 years and under the age of 18 years without consent of that person, as consent is defined in sub. (4).’ Subsection (4) provides:
‘Consent’ as used in this section, means words or overt actions by a person who is competent to give informed consent indicating a freely given agreement to have sexual intercourse or sexual contact. A person under 15 years of age is incapable of consent as a matter of law. The following persons are presumed incapable of consent but the presumption may be rebutted by competent evidence, subject to the provisions of s. 972.11(2):
(a) a person who is 15 to 17 years of age . . . .’
“We reject appellant’s assertion that because he was fifteen years old when he' had intercourse with L.H., he was incapable of consent. The assertion rests on the argument that sec. 940.225(4)(a), Stats. 1979, created a rebuttable presumption to that effect. That statute pertains to the guilt of a criminal defendant, not to the civil rights or duties of the victim. Paternity actions are civil proceedings. State ex rel. Lyons v. DeValk, 47 Wis. 2d 200, 203, 177 N.W.2d 106, 107 (1970). The presumption created by sec. 940.225(4)(a) does not apply in this proceeding.” 149 Wis. 2d at 355-57.
The court then goes on to state:
“If voluntary intercourse results in parenthood, then for purposes of child support, the parenthood is voluntary. This is true even if a fifteen-year old boy’s parenthood resulted from a sexual assault upon him within the meaning of the criminal law.” 149 Wis. 2d at 360.
Although the question of whether the intercourse with Colleen was “voluntary,” as the term is usually understood, is not specifically before us, it was brought out in oral argument before this court that the sexual relationship between Shane and his baby sitter, Colleen, started when he was only 12 years old and lasted over a period of several months. At no time did Shane register any complaint to his parents about the sexual liaison with Colleen.
In Schierenbeck v. Minor, 148 Colo. 582, 367 P.2d 333 (1961), Schierenbeck, a 16-year-old boy, appealed the adjudication in a dependency proceeding that he was the father of a child bom to a 20-year-old woman. On appeal, Schierenbeck cited a Colorado criminal statute which defined rape in the third degree by a female of a male person under the age of 18 years. In discussing the relevance of the criminal statute, the court stated:
“Certain it is that [Schierenbeck’s] his assent to the illicit act does not exclude commission of the statutory crime, but it has nothing to do with assent as relating to progeny. His youth is basic to the crime; it is not a factor in the question of whether he is the father of [the child].
“ The putative father may be liable in bastardy proceedings for the support and maintenance of his child, even though he is a minor. . . .’ Bastards, 10 C.J.S. 152, § 53. If Schierenbeck is adjudged to be the father of [the child] after a proper hearing and upon sufficient evidence, he should support [the child] under this fundamental doctrine.” 148 Colo, at 586.
The trial court decision was reversed on other grounds not pertinent to the facts of our case and remanded for further proceedings.
The Kansas Parentage Act, K.S.A. 38-1110 et seq., specifically contemplates minors as fathers and makes no exception for minor parents regarding their duty to support and educate their child. K.S.A. 38-1117 provides, in part:
“If a man alleged or presumed to be the father is a minor, the court shall cause notice of the pendency of the proceedings and copies of the pleadings on file to be served upon the parents or guardian of the minor and shall appoint a guardian ad litem who shall be an attorney to represent the minor in the proceedings.”
K.S.A. 1992 Supp. 38-1121(c) provides, in part:
“Upon adjudging that a party is the parent of a minor child, the court shall make provision for support and education of the child including the necessary medical expenses incident to the birth of the child. The court may order the support and education expenses to be paid by either or both parents for the minor child.”
If the legislature had wanted to exclude minor parents from responsibility for support, it could easily have done so.
As previously stated, Shane does not contest that he is the biological father of the child. As a father, he has a common-law duty, as well as a statutory duty, to support his minor child. Keller v. Guernsey, 227 Kan. 480, 486, 608 P.2d 896 (1980); Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d 979 (1976); Grimes v. Grimes, 179 Kan. 340, 343, 295 P.2d 646 (1956). This duty applies equally to parents of children born out of wedlock. Huss v. DeMott, 215 Kan. 450, 524 P.2d 743 (1974); Doughty v. Engler, 112 Kan. 583, 585, 211 Pac. 619 (1923).
Under the statutory and common law of this state, Shane owes a duty to support his minor child. K.S.A. 1992 Supp. 21-3503 does not apply to a civil proceeding and cannot serve to relieve Shane of his legal responsibilities towards his child. Shane relies upon six cases to support his position: State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988); State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987); State v. Lilley, 231 Kan. 694, 647 P.2d 1323 (1982); State v. Price, 215 Kan. 718, 529 P.2d 85 (1974); State v. Eberline, 47 Kan. 155, 27 Pac. 839 (1891); State v. Fulcher, 12 Kan. App. 2d 169, 737 P.2d 61 (1987). Each of these cases involves the age of consent issue under the Kansas statutory rape law and its present equivalent. We conclude that the issue of consent to sexual activity under the criminal statutes is irrelevant in a civil action to determine paternity and for support of the minor child of such activity. Consequently, Shane’s reliance on the foregoing criminal cases is misplaced.
For Shane’s next issue, he asserts that it is not sound public policy for a court to order a youth to pay child support for a child conceived during the crime of indecent liberties with a child when the victim was unable to consent'to the sexual intercourse. He claims that while the Kansas Parentage Act creates a State interest in the welfare of dependent relatives, the policy behind the Parentage Act is not to force a minor, who is unable to consent to sexual intercourse, to support a child bom from the criminal act.
Shane provides no case law specifically on point, but once again relies upon the Kansas cases involving statutory rape. He also refers the court to K.S.A. 39-718a, which authorized the Secretary of SRS to collect child support from an absent parent. Shane suggests that underlying K.S.A. 39-718a is the presumption that a parent consented to the conception, and argues that the proper remedy for SRS in this case is to seek support exclusively from Colleen Hermesmann, as she was the only parent legally able to consent to the conception of the child. What Shane has failed to recognize, however, is that K.S.A. 39-718a was repealed by the legislature in 1988. L. 1988, ch. 218, § 6. Any argument based upon a statute which was repealed five years ago is obviously without merit.
However, the argument of two allegedly conflicting public policies of this state does merit consideration. Other jurisdictions have recognized the conflict between a State’s interest in pro tecting juveniles and a State’s interest in requiring parental support of children. In In re Parentage of J.S., 193 Ill. App. 3d 563, 550 N.E.2d 257 (1990), the trial court ordered a minor father to pay child support for his illegitimate son. The minor father appealed the order, but did not contest the trial court’s paternity finding. In affirming the trial court’s decision ordering support, the court stated:
“The respondent initially argues that he should not be required to support his child, because he was a 15-year-old minor when the child was conceived. He contends that Illinois public policy protects minors from the consequences of their improvident conduct.
“We note that contrary to the respondent’s position, Illinois public policy has never offered blanket protection to reckless minors. [Citations omitted.] At the same time, Illinois public policy has recognized the blanket right of every child to the physical, mental, emotional, and monetary support of his or her parents. (Ill. Rev. Stat. 1987, ch. 40, par. 2501.1.) The public has an interest in protecting children from becoming wards of the State. In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 480 N.E.2d 1283.
“In the instant case, we find that the public policy mandating parental support of children overrides any policy of protecting a minor from improvident acts. We therefore hold that the trial court properly found that the respondent was financially responsible for his child.” (Emphasis added.) 193 111. App. 3d at 565.
In Commonwealth v. A Juvenile, 387 Mass. 678, 442 N.E.2d 1155 (1982), a 16-year-old father was ordered to pay child support of $8 a week toward the support of his child bom out of wedlock. The minor father admitted his paternity, but appealed the support order. On appeal, the court affirmed the judgment of the lower court and said:
“The defendant’s claim rests on an assertion that a support order is inconsistent with the statutory purpose of treating a juvenile defendant as a child ‘in need of aid, encouragement and guidance.’ [Citation omitted.] Although we acknowledge that purpose, we see no basis, and certainly no statutory basis, for concluding that a juvenile should be free from any duty to support his or her illegitimate child. The illegitimate child has interests, as does the Commonwealth.” 387 Mass, at 680.
This State’s interest in requiring minor parents to support their children overrides the State’s competing interest in protecting juveniles from improvident acts, even when such acts may include criminal activity on the part of the other parent. Considering the three persons directly involved, Shane, Colleen, and Melanie, the interests of Melanie are superior, as a matter of public policy, to those of either or both of her parents. This minor child, the only truly innocent party, is entitled to support from both her parents regardless of their ages.
As his third issue, Shane asserts that the district court erred in finding he and Colleen were jointly and severally liable for the child support. He argues that, as Colleen was the perpetrator of the crime of statutory rape, she alone should be held responsible for the consequences of the act, and he requests this court to remand the case to the district court with instructions to order Colleen solely responsible for the support pursuant to K.S.A. 39-718a. He states that K.S.A. 39-701 et seq. does not require a judgment ordering joint and several liability for child support.
Once again, Shane’s reliance upon K.S.A. 39-718a is improper. This statute was repealed in 1988. L. 1988, ch. 218, § 6. The controlling statute, as SRS points out, is K.S.A. 1992 Supp. 39-718b, which explicitly requires a court to order joint and several liability, with some exceptions not applicable here, when more than one person is legally obligated to support the child. SRS correctly notes that the mother’s conduct has no bearing upon the parties’ respective obligations to support their child. Other courts have so held. In Weinberg v. Omar E., 106 App. Div. 2d 448, 448, 482 N.Y.S.2d 540 (1984), the court held:
“[T]he mother’s alleged fault or wrongful conduct is irrelevant under section 545 of the Family Court Act [citation omitted]. The primary purpose of a paternity proceeding is to protect the welfare of the illegitimate child and, accordingly, the mother’s conduct should have no bearing on the father’s duty of support nor upon the manner in which the parents’ respective obligations are determined [citation omitted].”
SRS also notes that Shane cites no authority in support of his contention. Nowhere does the law in this state suggest that the mother’s “wrongdoing” can operate as a setoff or bar to a father’s liability for child support. Under the facts as presented to this court, the district court properly held that Shane owes a duty of support to Melanie and properly ordered that Shane and Colleen were jointly and severally liable for the monies previously paid by SRS.
While the foregoing disposes of the issues on appeal, we would be remiss if we did not comment upon various other facets of this appeal. This court was not supplied with any meaningful record in this case. The only record supplied by counsel was a portion of the pleadings in the district court. No transcript or other evidence of the proceedings before the hearing officer was included in the record, and the facts, while apparently not disputed, have been gleaned from the pleadings, briefs, arguments before this court, and a transcript of the arguments before the district judge which this court felt compelled to obtain. The appellants’ brief does refer to two exhibits, allegedly attached to their brief, in support of some of their statements of fact. However, such exhibits were not made part of the record on appeal, nor were they attached as exhibits to the brief. Neither parties brief could be considered adequate, let alone a model, for appellate procedure.
Additionally, counsel for SRS joined the parents of Shane as parties defendant, although no relief was sought against those defendants. At oral argument, appellate counsel had no explanation for joining Shane’s parents, but it appears trial counsel may have done so under some mistaken idea that it was necessary to obtain valid service on Shane.
Finally, we call attention to the fact that no issue was raised as to the propriety of the judgment against a youngster who was still a full-time student when these proceedings were commenced. When questioned in oral argument about the policy of SRS in seeking a judgment in excess of $7,000, counsel replied with the surprising statement that SRS had no intention of ever attempting to collect its judgment. Under such circumstances, the reason for seeking that portion of the judgment still eludes us.
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|
The opinion of the court was delivered by
Davis, J.:
This is an interlocutory appeal by the State from an order suppressing evidence seized in connection with a traffic checklane operation. We affirm the trial court’s suppression of evidence on the narrow basis that because of a lack of foundation evidence, the State failed to establish probable cause for the search of defendant’s automobile.
On November 20, 1991, the Kansas Highway Patrol and other law enforcement agencies set up a checklane as part of a law enforcement effort called “Span 70.” The checklane was part of a national law enforcement project, the purpose of which was to create a strong law enforcement presence along the entire expanse of Interstate 70. The traffic checklane was a local multijurisdictional law enforcement effort to focus on checking drivers’ licenses and reducing “accident-related causative factors.”
The operation was implemented on November 20, 1991, from 2:00 a.m. until 6:00 a.m. A briefing was held for all personnel involved, including the Kansas Highway Patrol, Saline County Sheriff’s Department, Dickinson County Sheriff’s Department, Saline County Attorney’s Office, Kansas Department of Transportation, and the Bureau of Alcohol, Tobacco, and Firearms prior to the commencement of the checklane stops.
The checklane was set up at a rest area just west of Solomon in Saline County in such a way that all traffic on the interstate, whether eastbound or westbound, could be funneled into the rest area and stopped. Signs were posted approximately 500 feet from the entrances to the rest area, advising motorists of the checklane. There was no advance publicity regarding the checklane.
The defendant entered the checklane in his car at approximately 4:35 a.m. Trooper Rick Bigham, who was checking defendant’s driver’s license, smelled alcohol and asked defendant to submit to a preliminary breath test. Defendant agreed to do so and went to the patrol car to take the test. The test indicated that his blood alcohol level was below the legal limit. At some point during defendant’s detention, another officer walked a narcotics-detecting dog around defendant’s car. The dog “alerted.” After the dog’s response, Trooper Michael Murphy searched the front seat area of defendant’s car and found a bag containing what appeared to be marijuana. The defendant was arrested, and an inventory search of his automobile was conducted. Because it was cold on that night, Trooper Murphy took a coat from inside the defendant’s automobile and gave it to the defendant to wear. Prior to giving defendant his coat, however, the trooper checked the pockets for weapons and contraband. In one pocket, the trooper found a white envelope containing a white powdery substance. Trooper Murphy made the statement, “This is cocaine or methamphetamine.” Trooper Murphy testified that the defendant replied that it was his cocaine from a year ago.
The defendant moved to suppress the physical evidence and to suppress his statement to Trooper Murphy. The district court granted defendant’s motion on the following grounds:
“[T]here is no statutory authority for roadblock traffic stops and the roadblock traffic stop of the defendant’s vehicle on November 20, 1991 is an unconstitutional violation of the separation of powers between the legislative and executive branches of Kansas government; that the roadblock traffic stop on November 20, 1991 violates the defendant’s right of travel; that the roadblock traffic stop of November 20, 1991 was not conducted in compliance with the requirements of State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983); that the resulting search of the defendant’s car occurred in violation of the defendant’s rights under the 4th and 14th Amendments to the United States Constitution and Section 15 of the Bill of Rights of the Kansas Constitution. The defendant’s car was searched by a drug dog without probable cause being established on the record in that no evidence was introduced from the handler of the dog as to training, background, characteristics and capabilities of the dog which would justify intrusion into the defendant’s vehicle and no evidence of scientific reliability or acceptance per the Frye test was introduced to suggest reliability of the handler’s perceptions and/or the dog’s reactions; and that, therefore, for all of the above and foregoing reasons, as fully set forth on the record of the hearing, the evidence obtained as a result of the unlawful stop and search of the defendant’s car, including the physical evidence, and defendant’s statements should be suppressed as evidence at the defendant’s trial.”
In its appeal, the State identifies the following six issues:
(1) The district court erred in ruling that legislative authority is required for the establishment of checklane roadblocks;
(2) the district court erred in ruling that the checklane in this case failed to comply with the requirements of State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983);
(3) the district court erred in ruling a narcotics dog “sniff” of the exterior of a vehicle constitutes a search;
(4) the district court erred in ruling that the Frye test applies to the use of a narcotics dog;
(5) the district court erred in ruling that the stop of defendant’s automobile violated his right of travel; and
(6) the district court erred in suppressing the substance found in the defendant’s coat pocket and his subsequent statement concerning the substance.
(1) Legislative Authorization
Upon oral argument, the defendant concedes that this issue has been resolved against him in our recent opinion of Davis v. Kansas Dept. of Revenue, 252 Kan. 224, Syl. ¶ 1, 843 P.2d 260 (1992):
“Sobriety checkpoints have been found to be constitutional under the United States Constitution Fourth Amendment and the Kansas Constitution Bill of Rights § 15. Thirteen factors established in State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), are relevant in balancing State interests against intrusion upon individual rights. Specific legislative authorization is not a prerequisite to the validity of sobriety checkpoints. ” (Emphasis added.)
(2) State v. Deskins
Law enforcement personnel’s compliance with procedural safeguards is essential when they detain citizens at checklanes. Such stops and detentions are seizures within the meaning of the Fourth Amendment to the United States Constitution “even though the purpose of the stop is limited and the resulting detention quite brief.” State v. Deskins, 234 Kan. 529, Syl. ¶ 3. Accord Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). The United States Supreme Court recognizes that
“ ‘[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.’ Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).” Terry v. Ohio, 392 U.S. 1, 9, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1967).
The Fourth Amendment to the United States Constitution protects individuals against “ ‘arbitrary invasions by government officials’ by imposing a standard of reasonableness upon the exercise of those officials’ discretion.” Deskins, 234 Kan. at 540. Generally, stopping and detaining a motorist is an unreasonable seizure for purposes of the Fourth Amendment unless the police officer has at least some “articulable and reasonable suspicion that the motorist ... or an occupant is otherwise subject to seizure for violation of the law.” Deskins, 234 Kan. 529, Syl. ¶ 4.
The “checldane” cases have carved out an exception to this general rule in circumstances in which the checklane (sometimes referred to as checkpoint or roadblock) complies with the procedures to properly balance the public interest against the interference with personal freedom. In Deskins, we identified various factors that should be considered in determining whether a stop at a traffic checldane is reasonable when there is neither a warrant nor probable cause to otherwise justify the stop:
“(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.” 234 Kan. at 541.
Not all of the factors must be favorable to the State, but some, such as the “unbridled discretion of the officer in the field, would run afoul of Prouse regardless of other favorable factors.” 234 Kan. at 541. The burden of proof is on the State to prove that its search and seizure of an individual is reasonable under the Fourth Amendment. See State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (“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. Hanes, 3 Kan. App. 2d 125, 590 P.2d 597, rev. denied 225 Kan. 846 (1979) (warrantless searches per se unreasonable; burden on State to prove exception to warrant requirement applies).
State v. Deskins Factors
Discretion. All motorists were stopped, both eastbound and westbound, during the duration of the operation. While defendant was detained for 30 minutes between the stop and his ultimate arrest, the average time of detention to check for drivers’ licenses was 45 seconds.
Defendant contends that the officers “had unbridled discretion . . . once a car was drawn into the net.” Thus, according to defendant, even assuming that the initial moment of detention was lawful, there were no guidelines concerning whether a motorist could be detained further for a drug dog to be obtained and for a drug investigation to be conducted. The purposes of the checklane were to check drivers’ licenses, to reduce “accident-related causative factors,” to check for drunk drivers, and to achieve “drug interdiction.” This, however, does not translate into a general law enforcement purpose.
Contrary to defendant’s assertion, the officers did not have “unbridled discretion” regarding detention beyond the initial stop. Any detention beyond the initial stop by the officer is subject to the limitations imposed by the United States Constitution. Absent evidence establishing some exception to the Fourth Amendment’s prohibition of unreasonable seizure, such as the officers’ articulable and reasonable suspicion that the motorist or an occupant is otherwise subject to seizure for violation of the law, the officers had no real discretion to detain a driver or occupant beyond the initial stop.
The officers recognized the limitation on their discretion. They testified that further detention was based on the facts disclosed during the initial legal stop as evaluated in light of their experience as law enforcement officers.
While defendant claims there were no guidelines to the exercise of discretion with reference to use of the drug dog, the use of the drug dog, as will be shown later, does not constitute a search under the Fourth Amendment to the Constitution. Thus, if the dog could be used during the initial authorized stop, resulting in no detention beyond the time required for the lawful stop, or if the officers were able to demonstrate some articulable and reasonable suspicion that a motorist or an occupant is otherwise subject to seizure for violation of a drug law, then additional detention would be permitted under Terry v. Ohio. Beyond that, the officers had no discretion.
As we understand the record in this case, an officer’s basis for detaining a car beyond the initial stop for purposes of checking for drugs was dependent upon the individual officer’s experience and whether that officer had an articulable and reasonable suspicion that the motorist was violating the law. The officers did not have unbridled discretion to detain any individual beyond the initial stop. The overall plan of the checkpoint was not then an arbitrary invasion by government officials.
In United States v. Walker, 941 F.2d 1086 (10th Cir. 1991), the defendant was legally stopped for speeding. However, his continued detention by a law enforcément officer in order for the officer to ask the defendant intrusive questions unrelated to the traffic stop was found to be a violation of the defendant’s Fourth Amendment rights; cocaine that had been seized as a result of the stop was ordered suppressed. The court found under those facts there was a “lack of any constraint on an officer’s decision to detain some individuals and to let others go.” 941 F.2d at 1089. We do not perceive from the record that there was any “lack of any constraint on an officer’s decision to detain some individuals and to let others go.” Walker can be distinguished from the facts in this case. Here, the defendant was detained beyond the initial stop because the officer smelled alcohol, not because of a suspicion that a drug violation was occurring.
Location. Defendant contends that the location was unreasonable because it was not possible to avoid the checklane. The entire purpose of the checklane was to stop all vehicles. It was planned and initiated with the idea that there would be no possibility of avoiding the checklane. Without such a location, it would have been impossible to carry out the objectives of the checklane.
Time and duration. These factors are not in issue.
Standards set by superiors. Approximately one hour before the checklane was in effect, there was a briefing for all officers concerned. The officers were instructed “about signage” and about who would be on which side of the highway and how long the roadblock should remain in effect; they were also instructed that all vehicles were to be stopped. The briefing focused on the need to keep detentions brief and to check for licenses.
Defendant contends that the standards were deficient because there was no guidance regarding law enforcement activity beyond the direction to stop every car. Also, defendant contends that there were no standards given regarding when to use narcotics dogs. These matters have been addressed previously. Suffice it to say that any detention beyond the license check must, under the Fourth Amendment to the United States Constitution, be based upon an exception such as an articulable and reasonable suspicion that the motorist is subject to seizure for violation of another law. This is precisely what happened in the defendant’s case. The officers continued to detain him based upon the smell of alcohol. While there was no documentary evidence concerning standards for the checklane, the record indicates that standards for this checklane were set by superiors of the police officers.
Advance notice to public at large. There was no notice to the public at large. While this is a valid and desirable requirement, its absence does not by itself vitiate the checklane.
Advance warning to individual approaching motorists. Approaching motorists were given notice about 500 feet before the entrance to the lane to the rest area where the checklane was taking place. It appears that the advance warning was safe and adequate.
Safety conditions. Testimony establishes that great pains were taken by the State to insure the safety of all travelers, as well as the officers involved in the operation.
Fear and anxiety. There was no evidence presented on this issue.
Average length of time each motorist was detained. The only evidence admitted on this factor was that the motorists who were not subjected to additional law enforcement activity were detained an average of only 45 seconds. While there is evidence that the defendant was detained for 30 minutes between the stop and his ultimate arrest, there were further reasons for his continued detention based on the officer’s smell of alcohol on defendant’s breath. Overall, it appears that the officers complied with their initial plan of detaining motorists momentarily for the purpose of a driver’s license check.
Physical factors. This was not an issue in the case, and there was no evidence presented on this factor.
Availability of less intrusive means to accomplish goal. Given the average length of time motorists were detained, and given the express purpose for the checklane, it would appear that goals set forth in operation “Span 70” were accomplished and effective.
Degree of effectiveness of the procedure. The officers testified that many citations were issued for traffic infractions, one DUI arrest was made, and three vehicles were found to contain controlled substances. While the officers testified that they did not have any documentary evidence regarding this particular check-lane, their testimony was that they remembered the above results.
Effectiveness cannot be measured completely in the number of arrests that are made but must be judged in accordance with the original goal of checking licenses and creating a strong law enforcement presence along the entire span of Interstate 70. In this respect, the checklane appears to have been effective based on the procedures used.
Under all the circumstances, we conclude that, on balance, the checklane complied with the factors set forth in Deskins.
(3) Narcotics Dog “Sniff”
The district court ruled that a narcotics dog sniff of the exterior of defendant’s vehicle constituted a search. In this respect, we hold that the district court erred. There is ample support for concluding that a drug dog’s sniff of the exterior of a vehicle is not a search for the purposes of the Fourth Amendment. See, e.g., United States v. Morales-Zamora, 914 F.2d 200, 204 (10th Cir. 1990); United States v. Solis, 536 F.2d 880, 883 (9th Cir. 1976); State v. Martinez, 26 Ariz. App. 210, 212, 547 P.2d 62 (1976); see also United States v. Place, 462 U.S. 696, 77 L. Ed. 2d 110, 103 S. Ct. 2637 (1983) (use of drug dog to sniff defendant’s luggage at airport not “search”); Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979) (use of drug dog at public school not “search” under circumstances of case). Thus, the district court erred in concluding that the narcotics dog sniff of the exterior of the vehicle constituted a search.
Defendant contends that even if the dog sniff was not a search, it nevertheless was unconstitutional because the State did not establish that the dog sniffed the car during defendant’s lawful detention. In other words, defendant contends that absent such proof, the duration of his detention exceeded its lawful scope. We believe that it is reasonable to infer from the evidence in the record that the dog sniffed the car during the time defendant lawfully was detained for the preliminary breath test. Accordingly, we conclude that the defendant was not unlawfully seized for the purpose of allowing the drug dog to sniff the exterior of his car.
(4) Frye Test
Defendant concedes that the Frye test does not apply to the use of a narcotics dog. The Frye test is an evidentiary and foundational standard requiring that scientific tests be shown to be reliable before results of the test will be admitted in a legal proceeding. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). See State v. Miller, 240 Kan. 733, 736-37, 732 P.2d 756 (1987); State v. Washington, 229 Kan. 47, 53, 622 P.2d 986 (1981). In light of defendant’s concession, we need not discuss this issue further.
(5) Right of Travel
In Jones v. Helms, 452 U.S. 412, 418, 69 L. Ed. 2d 118, 101 S. Ct. 2434 (1981), the United States Supreme Court held that “the right of a United States citizen to travel from one State to another and to take up residence in the State of his choice is protected by the Federal Constitution.” Although the right is not specifically set forth in the Constitution, the Court held that it has been consistently recognized as a legitimate right that is a “privilege of national citizenship, and ... an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. Whatever its source, a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another.” Jones, 452 U.S. at 418-19. Violation of this right, therefore, necessarily involves State action that affects on an individual’s right to leave one state and enter another.
The only State action shown in this case is the operation of a traffic checklane on Interstate 70. The checklane did not discriminate between citizens of Kansas and citizens of other states. It did not restrict or otherwise affect a motorist’s right to travel between states, nor did the officers running the checklane impose a tax or penalty on those they stopped. Clearly, the court erred in ruling that the traffic checklane in this case violated the right of appellee to travel.
(6) Probable Cause to Search
It is not disputed that the officers searched defendant’s vehicle after the dog “alerted.” If probable cause existed to search the automobile, the seizure of the suspected marijuana and the arrest of defendant were lawful. If the defendant was legally arrested, the officer’s search of his coat and seizure of the white powder also would be lawful, and defendant’s statement about that powder would be admissible. If, however, the officers did not have probable cause for the search of defendant’s automobile, all fruits of that search must be excluded.
The State in its appeal does not focus on the one basis set forth by the district court that causes us to affirm the trial court’s suppression of the evidence and defendant’s statement. The trial court ruled that there was no evidence introduced from the handler of the dog as to the training, background, characteristics, capabilities, and behavior of the dog that would justify the officer’s intrusion into the defendant’s vehicle. We have searched the record and find no such evidence. In order to establish probable cause for the search of the vehicle, some foundation testimony is necessary to establish that the “alert” of the dog provided probable cause for the search of the vehicle. On a proper showing, a narcotics dog’s reaction to a vehicle may supply the probable cause necessary to justify a search of the vehicle, but there must be some evidence that the dog’s behavior reliably indicated the likely presence of a controlled substance: “Obviously ... a description of the dog’s conduct, training and experience by a knowledgeable person who can interpret the conduct of the dog as signaling the presence of a controlled substance would constitute the minimum requirement for finding probable cause.” Doe v. Renfrow, 475 F. Supp. at 1025.
Upon remand, the State will be required to establish a necessary foundation for concluding that the dog’s alert established probable cause for the officer’s search of defendant’s vehicle. Absent such evidence here, the trial court could not conclude that the dog’s behavior established probable cause for the search of the defendant’s vehicle. Thus, the trial court properly suppressed the physical evidence and the defendant’s statement concerning the evidence.
Affirmed in part, reversed in part, and remanded for further proceedings. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Charles Bowser, appeals from his jury convictions of three counts of aggravated robbery, K.S.A. 21-3427, and two counts of kidnapping, K.S.A. 21-3420. He was sentenced to imprisonment for a controlling term of 30 years to life.
Bowser was first tried in May 1991 on four counts of aggravated robbery, four counts of kidnapping, and one count of sexual battery. The charges arose from four separate incidents in which a female victim, upon arriving at work in the morning, was approached from behind by a knife-wielding man who demanded money, jewelry, and something with the victim’s name and address on it. The jury found Bowser not guilty on two counts of kidnapping and one count of sexual battery. The jury could not reach a verdict on the other six counts, and a mistrial was declared as to them.
In August 1991 Bowser was retried on the remaining two counts of kidnapping and four counts of aggravated robbery. The jury found Bowser guilty on the two kidnapping counts and three of the four aggravated robbery counts. The jury found him not guilty on the remaining aggravated robbery count.
Bowser raises two issues on appeal. First, he contends his constitutional and statutory rights to be present at all stages of trial were violated by the trial judge’s ex parte communication with a juror.
During deliberations, the presiding juror sent a note to the district court judge which stated that juror Warrick wanted to be dismissed from service on the jury. In his chambers, the district court judge talked with the juror on the record. Bowser was not present, nor were the attorneys.
Juror Warrick told the district court judge that she wanted to be dismissed because 11 jurors had decided one way and she had decided the other way. Here is the discussion which followed:
“THE COURT: Ms. Warrick, I got a note from the presiding juror that just said that you would like permission to be dismissed.
“MS. WARRICK: Uh-huh.
“THE COURT: I don’t want to discuss anything about the case or what the status is on deliberations or where the jury is, but was this at your request?
“MS. WARRICK: Yes.
“THE COURT: Can you tell me why you want to be dismissed?
“MS. WARRICK: Because I just can’t do it.
“THE COURT: But this is one of the things I brought up yesterday early on how important it is.
“MS. WARRICK: Uh-huh.
“THE COURT: When you say you can’t do it, you mean you can’t make a decision ov — r
“MS. WARRICK: No, I can’t make a decision like immediately like they want an immediate decision. I know I’ve heard all the evidence and all that stuff, but it’s just I’m not convinced.
“THE COURT: Well, let me ask you this: I’m not asking you if you are convinced or not convinced, but you say you can’t make a decision?
“MS. WARRICK: Uh-huh.
“THE COURT: There’s a decision. The decision could be guilty or the decision could be not guilty.
“MS. WARRICK: Uh-huh.
“THE COURT: You’re just saying you’re in the middle or can’t go—
“MS. WARRICK: Well, I’ve made my decision, but—
“THE COURT: All right. Then tell me one more time why you want to be dismissed.
“MS. WARRICK: It’s because you say that everyone has to come up with the same decision.
“THE COURT: Yes, all twelve have to be the same for a verdict to be.
“MS. WARRICK: And my decision is not the same.
“THE COURT: Well, let me just — the reason I’m hesitating is we have to malee a record. I have to make sure that I don’t have any illegal conversations with you as a juror.
“MS. WARRICK: Uh-huh.
“THE COURT: But I’m reading between the lines. What I hear you’re saying is eleven of them are saying one thing and you’re saying another.
“MS. WARRICK: Right.
“THE COURT: And are you telling me the reason you’re saying another is because in viewing the evidence and the way you see it, that’s the way you feel your vote should be?
"MS. WARRICK: Right.
“THE COURT: And apparently they’re telling you that they all see it another way and they all think that you’re wrong?
“MS. WARRICK: Right.
“THE COURT: And you’re not telling me you can’t make a decision, you’re just saying, T don’t agree with them.’
“MS. WARRICK: Right.
“THE COURT: Do you have sufficient time — would you like — you know, it’s about time to go home now. You want to go home tonight and think it over? If it’s just because your vote is different, I can’t excuse you thinking somebody else might agree with them is what I’m saying to you.
“MS. WARRICK: Uh-huh.
“THE COURT: But if in good conscience you’ve done everything the law requires and you’ve looked at the evidence and you believe that the way you’re voting is the correct way, then I wouldn’t ask you to change it. You know, as long as you haven’t got some outside influence or as long as you didn’t come in with a predisposed idea of how you should vote, I won’t ask you to change it. I’ll ask you this: Have you listened to their discussions and have you discussed back and forth as to everybody’s feelings?
“MS. WARRICK: Yes, we have.
“THE COURT: And you still feel that your way is the way in your heart is correct?
“MS. WARRICK: Right.
“THE COURT: I can’t dismiss you just because you’re different.
“MS. WARRICK: Okay.
“THE COURT: You know, if you told me, ‘Judge, my religious reasons or my moral reasons or something, I can’t do this. I thought I could do it, but I can’t.’ Then I would think about dismissing you, but I can’t just dismiss you just because your vote might be different from the other eleven.
“MS. WARRICK: Well, let me put it this way then. I will say because I thought that I could, but maybe it is because of my religious reasons, because Jesus Christ is Judge. Judge not, lest you be judged. And I cannot in good conscience say, ‘Yes, this man is guilty,’ when I’m not convinced that he is, you know. I mean I have some reasonable doubt, and I would hate to send someone to the penitentiary for life and he was not guilty.
“THE COURT: You’re telling me two different reasons.
“MS. WARRICK: Am I?
“THE COURT: Well, what I’m saying is this — you’re saying, ‘Judge, I’ve thought this.out and you’ve got the law that you’ve told me and I’m following that law and I can’t find him guilty.’ And you’re also telling me, ‘Jesus Christ — or I cannot judge others’—
“MS. WARRICK: Uh-huh.
“THE COURT: If it’s both of those — if it was just the one — and don’t get the idea I’m not trying to get you to say magic words to me, because I’m not. If it was just the one, then there’s no problem. But if you believe in your heart that the evidence isn’t there and if you have a reasonable doubt and it’s a valid reasonable doubt, I wouldn’t ask you to change your mind. The only thing I ask you is that all twelve jurors listen to each other’s bases for their decision, listen to what it would be. And if you feel like you have a valid decision, I’d want you to stick with it, but I want you to be open minded and I’d want the eleven people other than you to be open minded and be able to discuss it and see what their story is.
“MS. WARRICK: Okay.
“THE COURT: Now, is there any question you might want to ask me that I haven’t brought up or anything?
"MS. WARRICK: No.
“THE COURT: Okay. Well, I’m going to send you back in there.
“MS. WARRICK: Uh-huh.
“THE COURT: And if you’d like to ask me anything or tell me anything in the morning as long as you don’t tell me anything about deliberations— I started to say I don’t know which way you stand, but I guess after that last statement, I do know.
“MS. WARRICK: Yeah.
“THE COURT: I just can’t dismiss you for the bases of what you’ve told me.
“MS. WARRICK: Okay.
“THE COURT: It’s not fair to anybody. And nobody knows what’s right or wrong, but as long as you’re following the instructions and as long as you’re doing in good conscience what the law says you do, just because you’re different is not a reason for me to dismiss you.
“MS. WARRICK: Okay.
“THE COURT: All right?
“MS. WARRICK: All right.”
The district court judge had said to juror Warrick, “[I]t’s about time to go home now.” After sending her back to the jury room, the judge met briefly with counsel. He told the prosecuting attorney and Bowser’s attorney of his discussion with the juror. The prosecutor stated, “I have no problem with the way you handled it.” Defense counsel stated, “I don’t see much else you could do.” The jurors were returned to the courtroom, and the judge announced that it was “twelve minutes to 5:00, so I’m going to send you home until tomorrow morning.” The jurors were asked to be present to begin deliberating at 8:50 the next morning.
Sometime the following morning the jury returned its verdict. The record does not indicate what time the jury returned its verdict; however, the jury verdict was file-stamped at 10:35 a.m. Defense counsel did not request that the jurors be polled.
A criminal defendant’s federal constitutional right to be present at all stages of trial “is rooted to a large extent in the Confrontation Clause of the Sixth Amendment,” but the United States Supreme Court has “recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482 (1985). A defendant has a due process right to be present at a proceeding where a “fair and just hearing would be thwarted by his absence.” Snyder v. Massachusetts, 291 U.S. 97, 108, 78 L. Ed. 674, 54 S. Ct. 330 (1934).
In Kansas a criminal defendant’s statutory right to be present is found in K.S.A. 22-3405. It provides in pertinent part as follows: “The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” This court has held that the failure to have defendant present at a conference in the judge’s chambers between the judge and a juror is a “clear violation of the statute.” State v. Knapp, 234 Kan. 170, 180, 671 P.2d 520 (1983).
In addition, K.S.A. 22-3420(3) provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given, or the evidence shall be read or exhibited to them in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
No Kansas cases have been brought to the court’s attention, however, in which a conviction was reversed on this ground. The convictions have been upheld either because the defendant waived the right to be present, see, e.g., State v. Sandstrom, 225 Kan. 717, 721-22, 595 P.2d 324, cert. denied 444 U.S. 942 (1979), or because the error was harmless, see, e.g., Knapp, 234 Kan. at 182, and State v. Lovely, 237 Kan. 838, 845, 703 P.2d 828 (1985); in other words, because a “fair and just hearing” had not been thwarted by the defendant’s absence.
The State does not contend that Bowser waived his right to be present during the in chambers conference with the juror.
Bowser contends that his absence “cannot be deemed harmless error” because the outcome of his trial might have been different if he had been present. The actual standard where a federal constitutional error is at issue requires the court to find beyond any reasonable doubt that there is little, if any, likelihood that the error changed the outcome of the trial. State v. Knapp, 234 Kan. at 182.
In order to meet this standard, the State argues, it must be shown that juror Warrick’s position changed as a result of her discussion with the judge. Bowser contends that Warrick’s position did change as a consequence of the discussion. He contends that the communication had a “coercive effect and was the catalyst for the unanimous verdict later reached by the jury.”
Bowser specifically objects to the judge’s failure to “explain the option of a hung jury” to Warrick. He contends that Warrick held the “mistaken belief that a unanimous vote was required.” If he or his counsel had been present, the argument seems to be, Warrick would have been advised that there are occasions when jurors fail to reach a unanimous decision.
In Knapp and Lovely, this court concluded that the communications outside defendant’s presence were harmless. In Lovely, the “totality of the circumstances” was declared to weigh against a finding of harm. The totality included defense counsel’s expressly declining to request a mistrial. 237 Kan. at 845.
In Knapp, the overwhelming evidence of guilt seems to have been the basis for this court’s conclusion that the communication did not tip the scale. 234 Kan. at 180-81. The present case is readily distinguishable. The Knapp juror gave no clue as to her view of the evidence. Her concern was that her brother had been questioned during investigation of the case. The court had no indication from the communication which way the juror was leaning, and “Knapp’s counsel wanted her left on the jury as he felt she would be a good juror for the defense.” 234 Kan. at 179. The court had no way to measure or even to infer whether the communication caused her to change her position. Thus, the court looked to the weight of the evidence to reach a conclusion as to the likelihood that the meeting caused a change.
This issue was recently addressed in Crease v. State, 252 Kan. 326, 845 P.2d 27 (1993). There, the issue was raised for the first time in a K.S.A. 60-1507 motion filed some 10 years after Crease’s conviction. The ex parte communication between the judge and at least one juror occurred on the morning of the third day of deliberations. No record was made of the ex parte communication. The juror was concerned about finding Crease guilty of murder if he was not the one who pulled the trigger. The ex parte communication with the judge related to the application of the felony-murder and aiding and abetting instructions.
We held the ex parte communication violated Crease’s constitutional right to be present at all critical stages of his trial. We then considered if the error was harmless, stating the standard of review as follows:
“ ‘An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had litde, if any, likelihood of having changed the result of the trial. [Citation omitted.]’ State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).
See Delaware v. Van Arsdall, 475 U.S. 673, 681, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986); Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967); State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 (1991), cert. denied _ U.S. _, 120 L. Ed. 2d 875 (1992). On appeal, the defendant has the burden of showing the error substantially prejudiced his or her rights. [State v.] Garcia, 233 Kan. [589,] 596 [, 664 P.2d 1343 (1983)].” 252 Kan. at 334.
Applying that standard, we concluded the error was harmless:
“Obviously, there is substantial competent evidence to support the findings of the district court in this case. That is not the standard of review, however. Our standard of review on this issue requires a review of the entire record by this court. ‘Since Chapman, we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citation omitted.]’ Delaware v. Van Arsdall, 475 U.S. at 681.
“Our examination of the entire trial transcript convinces us the error was harmless beyond a reasonable doubt. The record indicates that Crease and his accomplice, or accomplices, committed an aggravated burglary and that one of the burglars carried a high-powered rifle and one carried a handgun similar to one a witness previously had observed in Crease’s bedroom. Crease’s own testimony acknowledged his participation in the burglary and his awareness that at least one rifle was carried into the house in which the sleeping couple was shot and killed during the burglary. Given the burglary convictions, only if one or more of the jurors did not follow the instructions could there have been a hung jury or an acquittal on the felony-murder charges.
“Brinkley testified that the judge did not pressure her and that she had not decided how she would vote when she left his chambers. No objection was, or is, made to the trial judge’s instruction to the jury in response to Brinkley’s written question. Several hours later the jury returned its verdict of guilty.
“We are convinced the ex parte communication between the judge and juror, or jurors, had little, if any, likelihood of changing the verdict, and thus we hold the error to be harmless beyond a reasonable doubt.” 252 Kan. at 335-36.
In the present case, in contrast, it seems apparent that the judge’s dialogue with juror Warrick changed the outcome of the trial. When Warrick spoke with the judge, she told him that she had made her decision and stated: “I know I’ve heard all the evidence and all that stuff, but it’s just I’m not convinced.” Then she told the judge that she wanted to be dismissed “because you say that everyone has to come up with the same decision.” After she revealed to the judge that she was the holdout against the 11 other jurors, he mixed assurances that he was not asking her to change her mind with counsel to be open-minded and to listen to the other jurors’ reasoning. Then he sent her back to the jury room to resume deliberating. A reasonable inference is that she concluded that the judge wanted her to participate with the other jurors in reaching verdicts irrespective of her individual judgment, and the verdicts the following morning tend to confirm this supposition.
Further, the jury did not find the evidence against Bowser, particularly as to identification, to be overwhelming. The first trial resulted in not guilty verdicts on three counts and the jury being unable to reach a verdict on the remaining six counts. On retrial, juror Warrick, prior to her meeting with the judge, had decided that Bowser was not guilty.
In United States v. United States Gypsum Co., 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978), a criminal prosecution under the antitrust laws, the defendants raised the question of the propriety of a mid-deliberation ex parte meeting between the judge and the foreman of the jury. The Supreme Court affirmed the Court of Appeals’ reversal of the convictions on other grounds, but added that reversal would have been justified solely on the basis of the ex parte meeting. 438 U.S. at 462. Although the reasoning of the Supreme Court did not depend on the defendants’ right to be present, it is enlightening in the circumstances of the present case.
On the seventh day of deliberations, the federal district court judge received a request to meet with the jury foreman. He secured acquiescence of counsel to meet alone with the juror. During the meeting, the juror referred to the jury’s deadlock and the judge indicated he would take that into consideration but he wanted the jury to continue deliberations:
“THE COURT: I would like to ask the jurors to continue their deliberations and I will take into consideration what you have told me. That is all I can say.
“MR. RUSSELL: I appreciate it. It is a situation I don’t know how to help you get what you are after.
“THE COURT: Oh, I am not after anything.
“MR. RUSSELL: You are after a verdict one way or the other.
“THE COURT: Which way it goes doesn’t make any difference to me.” 438 U.S. at 432.
The following morning the jury returned guilty verdicts against the defendants.
The Supreme Court stated:
“We find this sequence of events disturbing for a number of reasons. Any ex parte meeting or communication, between the judge and the foreman of a deliberating jury is pregnant with possibilities for error. This record amply demonstrates that even an experienced trial judge cannot be certain to avoid all the pitfalls inherent in such an enterprise. First, it is difficult to contain, must less to anticipate, the direction the conversation will take at such a meeting. Unexpected questions or comments can generate unintended and misleading impressions of the judge’s subjective personal views which have no place in his instruction to the jury — all the more so when counsel are not present to challenge the statements. . . .
“. . . [I]t is not simply the action of the judge in having the private meeting with the jury foreman, standing alone — undesirable as that procedure is — which constitutes the error, rather, it is the fact that the ex parte discussion was inadvertently allowed to drift into what amounted to a supplemental instruction to the foreman relating to the jury’s obligation to return a verdict, coupled with the fact that counsel were denied any chance to correct whatever mistaken impression the foreman might have taken from this conversation, that we find most troubling.
“While it is, of course, impossible to gauge what part the disputed meeting played in the jury’s action of returning a verdict the following morning, this swift resolution of the issues in the face of positive prior indications of hopeless deadlock, at the very least, gives rise to serious questions in this regard. . . .
“We are persuaded that the Court of Appeals would have been justified in reversing the convictions solely because of the risk that the foreman believed the court was insisting on a dispositive verdict; a belief which we must assume was promptly conveyed to the jurors. The unintended direction of the colloquy between the judge and the jury foreman illustrates the hazards of ex parte communications with a deliberating jury or any of its members.” 438 U.S. at 460-62.
In the present case, the ex parte communication between the judge and juror Warrick was error in that it violated the defendant’s constitutional and statutory rights to be present at all critical stages of his trial.
The reasonable inference to be drawn from the record is that, as a result of the ex parte meeting, juror Warrick was influenced to change her position. We cannot declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the verdict, and therefore we do not find the error to be harmless.
In light of our finding, we need not address the second issue raised by the defendant.
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The opinion of the court was delivered by
McFarland, J.:
These are consolidated retaliatory discharge actions in which the plaintiffs contend their terminations as supervisors with Wyandotte County Community Corrections resulted from their comments criticizing the operation of the agency by its director, Joseph Ruskowitz. Verdicts were entered in favor of the plaintiffs, as follows:
Larson:
Lost wages and benefits $100,000.00
Emotional distress $200,000.00
Total $300,000.00
Graham:
Lost wages and benefits $360,000.00
Emotional distress $140,000.00
Total $500,000.00
The defendants appeal tl lerefrom.
JURISDICTION
For their first issue on appeal, the defendants contend the district court lacked subject matter jurisdiction herein. Their argument is as follows. On September 28, 1990, the plaintiffs were advised that they would be laid off effective October 31, 1990. The plaintiffs, in accordance with Wyandotte County’s grievance procedures, filed grievances protesting their layoffs to the defendant Board of County Commissioners (Board), and the Board upheld the layoffs on October 30, 1990. The plaintiffs then followed the procedures set forth in K.S.A. 12-105b for filing claims for actions under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.).
The defendants contend the proper procedure was for the plaintiffs to have appealed the decision of the Board affirming the layoffs to the district court under K.S.A. 19-223, which provides:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal, and the payment of all costs that shall be adjudged against the appellant.”
The defendants acknowledge that this issue is being raised for the first time on appeal. The defendants argue that lack of jurisdiction may be raised at any time and that reviewing courts have a duty to raise the issue sua sponte, citing Misco Industries, Inc. v. Board of Sedgwick County Comm'rs, 235 Kan. 958, 685 P.2d 866 (1984), and Dick v. Drainage District No. 2, 187 Kan. 520, 358 P.2d 744 (1961).
Inasmuch as this issue is a challenge to jurisdiction, we will consider the issue, although it is raised for the first time on appeal.
In Dutoit v. Board of Johnson County Comm'rs, 233 Kan. 995, 998-99, 667 P.2d 879 (1983), we discussed K.S.A. 19-223 and held that it provided the exclusive method by which a district court may review a judicial or quasi-judicial decision of a board of county commissioners but was inapplicable to appeals from a legislative-type decision by a board of county commissioners.
What type of decision is involved herein? In September 1990, the Board had approved a reorganization plan submitted to it by the Community Corrections Advisory Board which provided, inter alia, for the elimination of 15 positions including the two held by the plaintiffs. In the filing of the grievances, the plaintiffs were, in essence, asking the Board to reconsider that aspect of the reorganization plan which eliminated their positions. When their efforts at retention of their employment proved unsuccessful, they then brought this action in tort seeking damages for their termination after filing the necessary statutory notice.
We conclude this was an appropriate procedure. The action herein arises out of the employer-employee relationship of the parties. The Board was acting in an administrative capacity in approving the reorganization plan and in declining to modify the plan as requested by the plaintiffs. The tort action herein could have been brought without having sought reconsideration of the reorganization plan. The fact that such reconsideration or review was sought does not lock plaintiffs into a position of being required to exhaust that avenue through the court system in lieu of or as a condition to proceeding under the Tort Claims Act. We conclude the district court had jurisdiction herein.
CAUSE OF ACTION
For their second issue, the defendants contend the case was improperly submitted to the jury. They argue that the district court either failed to make or improperly made certain necessary determinations required by the nature of the cause of action. These areas involve determination of whether the statements of the plaintiffs which they contend caused their discharge involved a matter of public concern and application of the balancing test. Before proceeding to a discussion of the facts herein and how the case was judicially handled, an analysis of the cause of action is appropriate.
In their briefs the parties refer to the case as being a “whistle-blowing” retaliatory discharge claim. In their briefs the parties treat two related causes of action which differ in significant respects as one, and this blending has, we believe, caused some of the problems present herein. We need to discuss and separate these two causes of action.
Palmer v. Broton, 242 Kan. 893, 752 P.2d 685 (1988), is a good example of a “whistle-blowing” retaliatory discharge action. In Palmer, the plaintiff was a medical technician employed in a laboratory owned by the defendants. Although not directly involved therein, she became aware of the fact that the laboratory was committing Medicaid fraud by billing for tests that were not performed. She reported this fact to “unspecified authorities” and was terminated from her employment for such action.
In Palmer, we noted that it is public policy to encourage citizens to report crimes and that Medicaid fraud is a felony offense, and we traced the development of retaliatory discharge actions based upon “whistle-blowing.” We then stated:
“Several jurisdictions have provided common-law ‘whistle-blower protection for employees discharged for reporting illegal activity. See, e.g., Vermillion v. AAA Tro Moving & Storage, 146 Ariz. 215, 704 P.2d 1360 (1985) (employee told customer of employer theft of customer’s property); Palmateer v. International Harvester Co., 85 Ill. 2d 124, 421 N.E.2d 876 (1981) (employee reported to police theft of screwdriver by co-employee); Kalman v. Grand Union Co., 183 N.J. Super. 153, 443 A.2d 728 (1982) (pharmacist reported to State Board of Pharmacy employer’s plan to violate state pharmacy rules); Garibaldi v. Lucky Food Stores, Inc., 726 F.2d 1367 (9th Cir. 1984) (employee reported to California health officials shipment of adulterated milk); Shaw v. Russell Trucking Line, Inc., 542 F. Supp. 776 (W.D. Pa. 1982) (employee notified police that employer’s trucks were overloaded in violation of state law).
“Public policy requires that citizens in a democracy be protected from reprisals for performing their civic duty of reporting infractions of rules, regulations, or the law pertaining to public health, safety, and the general welfare. Thus, we have no hesitation in holding termination of an employee in retaliation for the good faith reporting of a serious infraction of such rules, regulations, or the law by a co-worker or an employer to either company management or law enforcement officials (whistle-blowing) is an actionable tort. To maintain such action, an employee has the burden of proving by clear and convincing evidence, under the facts of the case, a reasonably prudent person would have concluded the employee’s co-worker or employer was engaged in activities in violation of rules, regulations, or the law pertaining' to public health, safety, and the general welfare; the employer had knowledge of the employee’s reporting of such violation prior to discharge of the employee; and the employee was discharged in retaliation for making the report. However, the whistle-blowing must have been done out of a good faith concern over the wrongful activity reported rather than from a corrupt motive such as malice, spite, jealousy or personal gain.” 242 Kan. at 900.
Significantly, there is no mention in Palmer of the First Amendment determination that the employee’s communication was a matter of “public concern,” or utilization of a balancing test. Justification for the “whistle-blowing” cause of action is the public policy of encouraging employees to do their duty as citizens and report violations pertaining to public health, safety, and general welfare. The same public policy extends to all employees— whether in the public or private sector. Not to denigrate such cause of action but to assist in differentiating it from the related cause of action, we might characterize the whistle-blowing form of retaliatory discharge cases as involving employees who inform or “snitch” on the employers’ violations of laws or regulations out of the pure motivation of good citizenship. Public policy requires that such persons be protected from being discharged for their acts. No protection is afforded employees who blow the whistle or inform out of corrupt motive, personal gain, spite, malice, etc.
Congress has enacted legislation, commonly known as the “Whistle-Blowers Protection Act” (5 U.S.C. § 1201 et seq. [1988]); which protects federal employees who have disclosed information they believe evidences:
“(A) a violation of any law, rule, or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs.” 5 U.S.C. § 1213 (Supp. III 1991).
Actions by employees-at-will based upon retaliatory discharge for having filed workers compensation claims are recognized in Kansas. Cox v. United Technologies, 240 Kan. 95, 727 P.2d 456 (1986); Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981). As in retaliatory discharge actions based upon whistle-blowing, the rationale for allowing such claims is public policy. Also, as in whistle-blowing cases, employees in both the public and private sectors are protected.
This brings us to the type of retaliatory discharge action with which whistle-blowing has been confused herein — the discharge of a public employee for having exercised his or her right of freedom of speech as guaranteed by the First Amendment to the United States Constitution. Illustrative of such cause of action and the requirements therefor is Riddle v. City of Ottawa, 12 Kan. App. 2d 714, 754 P.2d 465, rev. denied 243 Kan. 780 (1988). A good summary of the applicable law is set forth therein, although the reference to Palmer v. Brown, 242 Kan. 893, (the whistle-blowing case) should have identified it as such. We quote the following with approval:
“Riddle alleged he was suspended for ten days without pay because he sent a letter to the City Commission outlining his grievances with the Department of Public Safety. This letter was allegedly sent at the request of a city commissioner, and evidence is in the record that the city manager also solicited grievances. The law has been clear ever since Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), that a state cannot dismiss a public employee for exercising his or her right to speak out on issues of public concern. To allow a governmental unit to discharge a person because of his or her constitutionally protected speech would have an inhibiting effect on the exercise of that freedom. See Perry v. Sindermann, 408 U.S. at 597. To allow a governmental unit to suspend a public employee without pay for exercising his or her right to speak on matters of public concern would have the same inhibiting effect. When a reasonably prudent person concludes that a co-worker or employer is engaged in activities in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare, the public policy of this state that an employee reporting such violation be free from retaliation is involved. Palmer v. Brown, 242 Kan. 893, Syl. ¶¶ 1, 3, 752 P.2d 685 (1988).
“However, a public employee’s right to free speech is not absolute. ‘[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.’ There should be a balance between the interests of a public employee, as a citizen, ‘in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ Pickering, 391 U.S. at 568.
“In Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), the United States Supreme Court expounded on the correct analysis to be applied to cases such as the one at bar. The first inquiry is whether Riddle’s letter can be fairly characterized as constituting speech on a matter of public concern. If it cannot be, it is unnecessary for this court to scrutinize the reason for his discharge. See Connick, 461 U.S. at 146. ‘Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.’ Connick, 461 U.S. at 147-48. The question is one of law, not fact.
“If a public employee’s speech can be characterized as addressing a matter of public concern, it is the court’s responsibility to then balance the interest of the employee with the interest of the State in effectively and efficiently fulfilling its responsibilities to the public. One relevant inquiry is whether the action disrupted or undermined working relationships in the department. Also relevant is the manner, time, and place in which the letter was sent and whether this had a disruptive effect on the department or undermined the director’s authority. If this balance tips in favor of the employee, the employee still has the burden of showing that the letter was a motivating factor for his or her suspension. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). If Riddle meets this burden, then the burden shifts to the City to show, by a preponderance of the evidence, that it would have reached the same decision to suspend Riddle even in the absence of the communication. For the same proposition, see Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 324-29, 107 S. Ct. 2891 (1987); Poison v. Davis, 635 F. Supp. 1130, 1137 (D. Kan. 1986).
“The trial court found that the letter Riddle sent to the City Commission did not address a matter of public concern, but was a mere expression of his personal grievances. ‘[Ajppellate review of conclusions of law is unlimited.’ Utility Trailers of Wichita, Inc. v. Citizens Nat’l Bank & Tr. Co., 11 Kan. App. 2d 421, 423, 726 P.2d 282 (1986).
“A review of the letter Riddle sent to the City Commission shows that the majority of the letter addressed only his personal grievances. However, the letter did address at least one matter of public concern: that the fire trucks had to have a battery charger kept on them so they would start, despite the fact the batteries were new, because the radio system was a constant drain on the batteries. The community has a significant interest in knowing whether its fire department can respond quickly and efficiently in an emergency.
“In Connick v. Myers, 461 U.S. 138, an assistant district attorney in New Orleans was discharged after distributing a questionnaire soliciting the views of her fellow staff members about certain concerns she had about the office. The attorney filed suit under 42 U.S.C. § 1983, contending her employment was wrongfully terminated because she had exercised her constitutionally protected right of free speech. The United States Supreme Court applied the relevant analysis to the facts in Connick, and found that, with but one exception, the questionnaire did not address matters of public concern.
“The United States Supreme Court went on to say, however, that because one of the questions in the survey did touch upon a matter of public concern and contributed to her discharge, the court had to determine whether the district attorney was justified in discharging his subordinate. The court applied the balancing test enunciated in Pickering and found that there was no demonstration the questionnaire impeded the assistant district attorney’s ability to perform her responsibilities. However, the court found that the questionnaire did disrupt the office and undermined office relationships. ‘When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.’ Connick, 461 U.S. at 151-52. The Court also considered the time, place, and manner in which the questionnaire was distributed and found these factors to tip the balance in favor of the employer. The Supreme Court held the assistant district attorney’s being discharged did not offend the First Amendment.
“The point of Connick is that, even though the majority of the questionnaire in that case, like the majority of the letter in the present case, did not address matters of public concern, the questionnaire, like the letter, did address one matter of public concern, causing the United States Supreme Court to apply the remainder of the Pickering balancing test. The trial court in the present case did not apply the balancing test, having initially determined that the threshold question, i.e., whether the letter addressed a matter of public concern, should be answered in the negative. Since the letter did address at least one matter of public concern, Connick mandates that the remainder of the balancing test be applied in the present case.” 12 Kan. App. 2d at 719-22.
Riddle was then remanded with directions to reconsider the First Amendment issue.
Some additional portions of Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), are illuminative and are set forth as follows:
“To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.
“The Pickering balance requires full consideration of the government’s interest in the effective and efficient iulfillment of its responsibilities to the public. One hundred years ago, the Court noted the government’s legitimate purpose in ‘promoting] efficiency and integrity in the discharge of official duties, and [in] maintaining] proper discipline in the public servicq.’ Ex parte Curtis, 106 U.S., at-373. As Justice Powell explained in his separate opinion in Arnett v. Kennedy, 416 U.S. 134, 168 (1974):
“ ‘To this end, the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.’ ” 461 U.S. at 149-51.
We turn now to the facts in the case before us.
The Wyandotte County Community Corrections program operates under the auspices of the Community Corrections Act (K.S.A. 75-5290 et seq.). The operation of the program is funded by grants from the Secretary of Corrections, who establishes rules and regulations for such programs. Each participating county has to submit an operating plan to the Secretary and gain his or her approval thereof. Payment of grant monies may be suspended if the county is not in substantial compliance with the Secretary’s minimum operating standards (K.S.A. 75-5296). A Corrections Advisory Board for Wyandotte County was established under K.S.A. 75-5297. The advisory board makes recommendations to the board of county commissioners, the latter being the body politic charged with operating the program.
Joseph Ruskowitz was the director of the Wyandotte County Community Corrections program at all times pertinent herein. In approximately May 1990, he was advised by the Kansas Department of Corrections (KDOC) that he could expect a 22 percent reduction in funding the following year and that his authorized staff positions should be reduced from 43 to 28. Ruskowitz met with the advisory board and it was decided that rather than reduce staff positions, they would prefer to not fill four vacancies, eliminate one position, and reduce services to make up the anticipated shortfall. This solution was presented to the Board and approved by it and then by KDOC. Services such as drug testing and the drug treatment program were eliminated. Additionally, salaries were frozen and probation officers’ reimbursements for mileage were eliminated. The employees were concerned about their future and the budgetary restraints imposed. Word of this reached the Board, which sent the county personnel director to talk to two groups of employees — supervisors and nonsupervisory employees. The plaintiffs and one other supervisor were present at the meeting held August 14, 1990. The county personnel director’s notes reflect the following was mentioned (without reference to who said what):
“Poor leadership and gross mismanagement of funds are reasons for the problems at Community Corrections.
“Morale has been tom down.
“There have been unfair hiring practices, promotions and disciplinary actions.
“Accusations made concerning misuse of funds.
“Many good people leaving the organization.
“There is money in the budget to operate program if it is spent wisely.”
The mismanagement of funds comments were not relayed to the county commissioners as the personnel officers felt the comments to be unsubstantiated. Two days later, an article appeared in a local newspaper, headlined “County corrections director at odds with employees, state.” The article mentioned the budget cuts and reductions in services. It went on to state several agency employees had been interviewed and that most wanted to remain anonymous “for fear of reprisals.” The employees were said to have been very concerned over the reduction in services and loss of mileage reimbursements. They were critical of the decision to cut services rather than people. Ruskowitz’s style of management was criticized. Neither plaintiff was quoted by name in the article, but both stated they did talk to the reporter writing the article. The only employee quoted was Gwen Hedstrom.
In September 1990, a reorganization plan was submitted by Ruskowitz to the advisory board which, inter alia, eliminated the department performing presentence reports for the courts (this had been a bone of contention with KDOC as this work is performed by court employees in the other Kansas counties). The agency would still do the work, but the report would be added to the work assignment of existing probation-type officers. Also eliminated was the Community Services Department, which checked on how persons assigned to Community Corrections for supervision were getting along in their jobs. This function would be taken on by the probation-type officers. A total of 15 positions were eliminated — the two departments mentioned contained 7 of such positions. Plaintiff Larson was the supervisor of the -presentence investigation department and plaintiff Graham was the supervisor of the Community Services Department. The advisory board approved the plan and sent it to the Board. After the Board approved the same, it was sent to KDOC where approval was granted. Thereafter, the plaintiffs were advised they would be laid off in accordance with the plan effective October 31, 1990. These lawsuits resulted.
One of the immediate problems presented is precisely what comments can be ascribed to either or both of the plaintiffs. This is not necessarily a fatal flaw for, as the Court of Appeals held in Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990), the cause of action will lie if the employer believed the plaintiff was the source of reported protected comments and was terminated for that reason.
However, overriding all is the fundamental error which permeates the entire action. In the district court’s instructions, the following is stated as being the plaintiffs’ case:
“INSTRUCTION NO. 7
“The plaintiffs contend they were wrongfully laid-off/discharged in retaliation for statements and comments they each made to a local newspaper, to the Wyandotte County Personnel Director, to Wyandotte County Commissioners, and to other agency employees regarding Joseph Ruskowitz’s violation of rules and regulations pertaining to the general welfare and operation of the Wyandotte County Community Corrections Agency.” “INSTRUCTION NO. 9
“In order to maintain a claim based on the ‘whistle-blowing’ exception, the employee must prove that:
“(1) The employee’s employer was engaged in conduct in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare;
“(2) The employer had knowledge of the employee’s reporting of such violations prior to the discharge; and
“(3) The employee was discharged in retaliation for making the report.”
The evidence in this case does not fit the scenario that the employer “was engaged in conduct in violation of rules, regulations, or the law pertaining to public health, safety, and the general welfare,” or that the employees were discharged for reporting the violation as in Palmer v. Brown, 242 Kan. 893, 752 P.2d 685 (1988). No claim was made that Ruskowitz misappropriated funds or committed any criminal act. Laws, rules, or regulations concerning public health, safety, or general welfare are not involved in the claims herein. In short, this is not a whistle-blowing case. Thus, the public policy considerations underlying whistle-blowing cases are absent. Rather, any protection to be afforded plaintiffs must come through their First Amendment rights of freedom of speech as discussed in Riddle v. City of Ottawa, 12 Kan. App. 2d 714, 754 P.2d 465, rev. denied 243 Kan. 780 (1988), and cases cited therein, subject to the requisite threshold determinations previously discussed.
In this issue, the defendants argue the threshold requirement of establishing any of plaintiffs’ speech was protected, i.e., a matter of public concern, was not met herein and also that the district court erred in not making the threshold balancing test, if some speech was found to be protected. There is nothing in the record to indicate any threshold determinations were made herein by the district court. There is also absent any indication the district court was requested to make any such determination. This latter point is troublesome.
There have been few cases in Kansas involving retaliatory discharge based upon statements made by employees. Palmer and Riddle involve the subject and follow divergent tracks as previously discussed. Neither attempts to differentiate between the legal requirements for a whistle-blowing action and a public employee’s claim based upon the First Amendment as there were no issues in either requiring such a discussion. Under the totality of the circumstances herein, we believe that the interests of justice require that the judgments herein be reversed and that the cases be remanded for further proceedings consistent with retaliatory discharge actions based upon violation of public employees’ First Amendment rights.
On remand, the district court is directed to make the requisite threshold determinations. This involves determining precisely what statements each of the plaintiffs made (or what the defendants believed they made). Such statements must then be judicially winnowed to determine if any are in the protected category — namely involving a matter of public concern. If any such statements are found to exist, the balancing test must be performed in which the protected speech is weighed against the employer’s rights. In addition, in these cases there is the matter of the defendants’ contentions that the plaintiffs were not laid off for what they said, but as the résult of a reorganization mandated by the budget crunch created by KDOC. In making the threshold determinations, the totality of the circumstances must be considered.
INSTRUCTIONS
The defendants claim numerous errors in the instructions. The complained-of instructions are essentially patterned after those appropriate to a whistle-blowing case. Nothing would be gained from an analysis thereof in light of our previous determination.
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The opinion of the court was delivered by
McFarland, J.:
This is an action by two individuals engaged in the automobile brokering business and six credit unions (who refer members interested in the purchase of new automobiles to automobile brokers) against the defendants Director of the Division of Vehicles of the Kansas Department of Revenue and the State of Kansas seeking: (1) a declaratory judgment that S.B. 486 (L. 1990, ch. 52) is unconstitutional and void; (2) temporary and permanent injunctions preventing the enforcement of S.B. 486; and (3) attorney fees and costs pursuant to 42 U.S.C. § 1988 (1988). The purpose of S.B. 486 was to eliminate the business of brokering new and used automobiles in the State of Kansas. The district court: (1) held S.B. 486 was violative of the First and Fourteenth Amendments to the Constitution of the United States and the corresponding provisions of the Kansas Constitution; (2) entered temporary and permanent injunctions against the en forcement of S.B. 486; and (3) awarded plaintiffs attorney fees and costs. The defendants appeal from said orders and judgments.
Not all automobile brokering businesses operate in precisely the same manner, but they share many of the same characteristics. A good starting point would be a rather detailed statement of how the individual plaintiffs herein operate their businesses.
ALETA BLUE
Ms. Blue operates a business known as Signature Fleet and Leasing (Signature). Ms. Blue holds licenses as a new automobile broker, a used vehicle dealer, and a new car salesman. The latter license is through Hofmeier Chevrolet of Harper, Kansas, and covers Chevrolet, Oldsmobile, and Pontiac automobiles. Ms. Blue’s husband holds a salesman’s license through John North Ford of Emporia. Signature handles Dodge, Chrysler, Jeep, and Eagle vehicles through Ely Rush, a licensed salesman with Zeller Motor Company of Arkansas City. Additionally, Signature handles some imports by direct contact with their dealers. Signature’s office is in Andover, Kansas. Its staff is Ms. Blue and a secretary. It has no inventory of automobiles, showroom, parts, or repair departments. Ms. Blue’s husband has a full-time job not involved with Signature. His involvement with Ms. Blue’s business is with some but not all of the Ford sales.
Ms. Blue has an arrangement with the dealers involved whereby the dealers will sell vehicles to Signature’s customers on the basis of invoice price plus $100. The dealer pays Signature/ Ms. Blue a fee or commission for each vehicle sold under the arrangement. Most of the sales involved come through referrals from area credit unions with whom Ms. Blue has arrangements. No fees or commissions are paid to the referring credit unions by Ms. Blue, the dealers, or credit union members who purchase vehicles after having been referred to Ms. Blue. The credit union’s gain from the transaction involves only good will through offering a service to its members and profit from the purchase loan if the purchase is financed through the referring credit union. The credit unions have no agreements or contacts with the participating dealers.
The system operates in the following manner. The credit union offers the service (it may or may not advertise the service) that: (1) members may avoid the hassle of negotiating a new car purchase with a dealer by utilizing the credit union’s service; (2) all vehicles involved may be purchased at $100 over the manufacturer’s invoice price; (3) information may be obtained on prices, options, colors, standard equipment, warranties, and availability of any Ford, Chevrolet, Chrysler, etc. vehicles; and (4) reasonable financing may be obtained through the credit union. If a credit union member desires the service or just wants information on vehicles, he or she is referred to Ms. Blue. Through a computer software program, Ms. Blue can provide information to the customer on any vehicle models in the program. If the customer decides to purchase a vehicle, Ms. Blue writes up the order on forms provided by the dealer involved (Hofmeier Chevrolet if it is a Chevrolet, Pontiac, or Oldsmobile, for example). The customer gives Ms. Blue a deposit made out to the dealer. If the dealer accepts the order, the dealer fills out all of the required papers for securing the title, odometer statement, warranty information manual, etc., "the same as the dealer would do if the customer were dealing directly with the dealer. Delivery of the vehicle may occur at the Signature office, the customer’s home, the dealership, or other agreed upon place.
DONALD R. STEELE
Mr. Steele lives in the Wichita area. He is licensed as a new car salesman through Zeller Motor Company but transacts business with many dealers. Mr. Steele’s wife is a licensed salesman with Hofmeier Chevrolet. His daughter holds a license through John North Ford. Each of these women has other full-time avocations or occupations. Their involvement in automobile sales is minimal and irregular. Until the day before trial herein, Mr. Steele operated his business from a desk located in the Mid-American Credit Union in Wichita. No rent was paid, although Mr. Steele paid his telephone expense. Nothing about the appearance of the operation indicated Mr. Steele was not a credit union employee. From the credit union Mr. Steele moved to rented quarters. Like Ms. Blue, virtually all of the transactions he was involved in came through credit union referrals. Mr. Steele has no showroom, parts, or repair facilities. Arrangements exist for the handling of trade-ins, but the details thereof are of no particular significance herein. Services offered, by the credit union and Mr. Steele, as well as the processing of orders, are essentially the same as outlined in our statements relative to Ms. Blue’s operation.
In summary then, Ms. Blue and Mr. Steele receive referrals of potential new car buyers from credit unions. They serve as middlemen between the customer and the participating dealer on sales. Additionally, they provide information to prospective customers on a wide variety of vehicles manufactured in the United States. Other variations in the operation of the brokering business may exist, but the middleman role appears to be a constant and may be considered the primary characteristic of a broker.
The distribution and sales of new motor vehicles in Kansas is, as in most states, a highly regulated business. Persons and business entities engaged in virtually every aspect therein are required to be licensed whether they be manufacturers, distributors, factory representatives, distributor representatives, dealers, salesmen, etc. The Vehicle Dealers and Manufacturers Licensing Act (K.S.A. 8-2401 et seq.) (Act) is a detailed, all-encompassing Act covering such regulations. For the 12 years prior to 1990, the brokering of automobiles was permitted by the Act.
In 1990, S.B. 486 was introduced at the behest of the Kansas Motor Car Dealers’ Association. The aim was the elimination of the automobile brokerage business. Extensive hearings were held where both proponents and opponents appeared. The bill was enacted into law to become effective on January 1, 1991. On November 5, 1990, the action herein wás filed, challenging the constitutionality of this legislative enactment. The district court issued a temporary injunction maintaining the status quo and enjoining the enforcement of S.B. 486. Later, the district court held S.B. 486 to be constitutionally impermissible and thus void. The temporary injunction was made permanent and attorney fees and costs were awarded to the plaintiffs. The defendants appeal from said determinations.
Setting forth S.B. 486 herein presents something of a logistical problem. The bill amended numerous sections of the Act. Many of the sections amended are lengthy and, of necessity, a great deal of unamended material is contained in the bill. This material has little or no bearing on the issues herein. Its inclusion would greatly lengthen the opinion without adding much to our discussion. Its elimination presents the pertinent amendments out of context and makes it rather difficult to relate them to the overall scheme of the regulatory act. We opt in favor of the latter approach. For the full text of S.B. 486, the reader is directed to L. 1990, ch. 52. The pertinent portions of S.B. 486 are as follows:
“Section 1. K.S.A. 1989 Supp. 8-2401 is hereby amended to read as follows: 8-2401. As used in this act, the following words and phrases shall have the meanings:
“(a) ‘Vehicle dealer’ means any person who: (1) For commission, money or other thing of value is engaged in the business of buying, selling or offering or attempting to negotiate a sale of an interest in vehicles; or (2) for eommission, money or other thing ef value is engaged in foe business ef buying? selling er offering er attempting te negotiate a sale ef an interest in vehicles for efoer persons as an agent, middleman er negotiator; er (3) for eommission, money er other thing ef value is engaged in foe business ef bringing buyers and sellers ef vehieles together; er (4) for commission, money or other thing of value is engaged in the business of buying, selling or offering or attempting to negotiate a sale of an interest in motor vehicles as an auction motor vehicle dealer as defined in (jj) ....
“(ff) ‘Broker’ means any person who, for a fee, commission, money er, other thing of value, valuable consideration or benefit, either directly or indirectly, arranges or offers to arrange a transaction involving the sale of a vehicle or mobile home, or is engaged in the business of: (1) Selling or buying vehicles or mobile homes for other persons as an agent, middleman or negotiator; or (2) bringing buyers and sellers of vehicles or mobile homes together, but such term shall not include any person engaged in a business in which foe acts described in this subsection are only incidentally performed or which are performed or authorized within the requirements or scope of any other category of license, or not prohibited, in the manner authorized by the vehicle dealers’ and manufacturers’ licensing act.
“Sec. 2. K.S.A. 8-2402 is hereby amended to read as follows: 8-2402. It is hereby declared to be foe public policy of this state to provide for fair and impartial regulation of those persons engaged in manufacturing, distributing or selling of vehicles or mobile homes. The provisions of this act which are applicable to such activities shall be administered in such a manner as will continue to promote fair dealing and honesty in foe vehicle industry or foe mobile home industry and among those engaged therein without unfair or unreasonable discrimination or undue preference or advantage. It is further declared to be the policy of this state to protect the public interest in the purchase and trade of vehicles and mobile homes, so as to insure protection against irresponsible vendors and dishonest or fraudulent sales practices and to assist, provide and secure a stable, efficient, enforceable and verifiable method for the distribution of vehicles to consumers in the state of Kansas and provide a system of tracking the flow of vehicles and their parts as well as preserving supporting services for consumers purchasing or otherwise acquiring vehicles and mobile homes.
“Sec. 3. K.S.A. 1989 Supp. 8-2404 is hereby amended to read as follows: 8-2404. . . .
“(i) If the director has reasonable cause to doubt the financial responsibility or the compliance by the applicant or licensee with the provisions of this act, the director may require the applicant or licensee to furnish and maintain a bond in such form, amount and with such sureties as the director approves, but such amount shall be not less than $5,000 nor more than $20,000, conditioned upon the applicant or licensee complying with the provisions of the statutes applicable to the licensee and as indemnity for any loss sustained by any person by reason of any act by the licensee constituting grounds for suspension or revocation of the license. Every applicant or licensee who is or applies to be a used vehicle dealer? or a new vehicle nnclnv rvv n <4 rtvrtrtv'f <•!*» nun «rtll-iv» »v onui rv>rtfrtVT»Ta<4. RiAtxil Ucditil or tt ui Uivtu UCUiCiy t33toopt tito&v auiuug trrixj ittotutTEOtt oicjuius and mobile homes? shall furnish and maintain a bond in such form, amount and with such sureties as the director approves, in the amount of $15,000, conditioned upon the applicant or licensee complying with the provisions of the statutes applicable to the licensee and as indemnity for any loss sustained by any person by reason of any act by the licensee in violation of any act which constitutes grounds for suspension or revocation of the license. . . .
“(q) Any vehicle dealer selling, exchanging or transferring or causing to be sold, exchanged or transferred new vehicles er new mobile homes in this state must satisfactorily demonstrate to the director that such vehicle dealer er mobile home dealer has a bona fide franchise agreement er mobile home sales agreement with the first or second stage manufacturer or distributor of the vehicle er mebile homo manufacturer, to sell, exchange or transfer the same or to cause to be sold, exchanged or transferred.
"No person may engage in the business of buying, selling or exchanging new motor vehicles, either directly or indirectly, unless such person holds a license issued by the director for the make or makes of new motor vehicles being bought, sold or exchanged, or unless a person engaged in such activities is not required to be licensed or acts as an employee of a licensee and such acts are only incidentally performed. For the purposes of this section,, engaged in the business of buying, selling or exchanging new motor vehicles, either directly or indirectly, includes: (1) Displaying new motor vehicles on a lot or showroom; (2) advertising new motor vehicles, unless the person’s business primarily includes the business of broadcasting, printing, publishing or advertising for others in their own names; or (3) regularly or actively soliciting or referring buyers for new motor vehicles.
"(r) Any mobile home dealer selling, exchanging or transferring or causing to be sold, exchanged or transferred new mobile homes in this state must satisfactorily demonstrate to the director that such mobile home dealer has a bona fide franchise agreement or mobile home sales agreement with the first or second stage manufacturer or distributor of the mobile home manufacturer, to sell, exchange or transfer the same or to cause the same to be sold, exchanged or transferred.
“(s) No person may engage in the business of buying selling or exchanging used motor vehicles, either directly or indirectly, unless such person holds a license issued by the director for used motor vehicles being bought, sold or exchanged, or unless a person engaged in such activities is not required to be licensed or acts as an employee of a licensee and such acts are only incidentally performed. For the purposes of this section, engaged in the business of buying selling or exchanging used motor vehicles, either directly or indirectly, includes: Displaying used motor vehicles on a lot or showroom; (2) advertising used motor vehicles, unless the person’s business primarily includes the business of broadcasting printing publishing or advertising for others in their own names; or (3) regularly or actively soliciting buyers for used motor vehicles.
“{rj (t) The director of vehicles shall publish a suitable Kansas vehicle or mobile home salesman’s manual. Before a vehicle or mobile home salesman’s license is issued, the applicant for an original license or renewal thereof shall be required to pass a written examination based upon information in the manual.
“{si (u) No new license shall be issued nor any license renewed to any person to act as a salvage vehicle dealer until the division has received evidence of compliance with the junkyard and salvage control act as set forth in K.S.A. 68-2201 et seq. and amendments thereto.
"(v) On and after the effective date of this act, no person shall act as a broker in the advertising buying or selling of any new or used motor vehicle. Nothing herein shall be construed to prohibit a person duly licensed under the requirements of this act from acting as a broker in buying or selling the following: (1) A mobile home or manufactured home; or (2) a recreational vehicle as defined by subsection (f) of K.S.A. 75-1212, and amendments thereto, when the recreational vehicle subject to sale or purchase is a used recreational vehicle which has been previously titled and independently owned by another person for a period of 45 days or more, or is a new or used recreational vehicle repossessed by a creditor holding security in such vehicle.
"(w) Nothing herein shall be construed to prohibit a person not otherwise required to be licensed under this act from selling such person’s own vehicle as an isolated and occasional sale.”
FOURTEENTH AMENDMENT
We turn now to the issues. The district court held that S.B. 486 violated the individual plaintiffs’ due process and equal protection rights guaranteed by the Fourteenth Amendment to the United States Constitution by abolishing their automobile brokering businesses.
We must first establish the applicable scope of judicial review of the legislation. An appropriate starting point is Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461, reh. denied 349 U.S. 925 (1955). In Williamson it was stated:
^The District Court held unconstitutional portions of three sections of the Act [OHa. Stat. tit. 59, §§ 941-47 (1953 Supp.); 1953 Okla. Sess. Laws ch. 13, §§ 1-8]. First, it held invalid under the Due Process Clause of the Fourteenth Amendment the portions of § 2 which make it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist.
“An ophthalmologist is a duly licensed physician who specializes in the care of the eyes. An optometrist examines eyes for refractive error, recognizes (but does not treat) diseases of the eye, and fills prescriptions for eyeglasses. The optician is an artisan qualified to grind lenses, fill prescriptions, and fit frames.
“The effect of § 2 is to forbid the optician from fitting or duplicating lenses without a prescription from an ophthalmologist or optometrist. In practical effect, it means that no optician can fit old glasses into new frames or supply a lens, whether it be a new lens or one to duplicate a lost or broken lens, without a prescription. The District Court conceded that it was in the competence of the police power of a State to regulate the examination of the eyes. But it rebelled at the notion that a State could require a prescription from an optometrist or ophthalmologist ‘to take old lenses and place them in new frames and then fit the completed spectacles to he face of the eyeglass wearer.’ 120 F. Supp., at 135. It held that such a requirement was not ‘reasonably and rationally related to the health and welfare of the people.’ Id., at 136. The court found that through mechanical devices and ordinary skills the optician could take a broken lens or a fragment thereof, measure its power, and reduce it to prescriptive terms. The court held that ‘Although on this precise issue of duplication, the legislature in the instant regulation was dealing with a matter of public interest, the particular means chosen are neither reasonably necessary nor reasonably related to the end sought to be achieved.’ Id., at 137. It was, accordingly, the opinion of the court that this provision of the law violated the Due Process Clause by arbitrarily interfering with the optician’s right to do business.
“We think the due process question is answered in principle by Roschen v. Ward, 279 US 337, [73 L.Ed. 722, 49 S.Ct. 336 (1929),] which upheld a New York statute making [it] unlawful to sell eyeglasses at retail in any store, unless a duly licensed physician or optometrist were in charge and in personal attendance. The Court said, ‘. . . wherever the requirements of the Act stop, there can be no doubt that the presence and superintendence of the specialist tend to diminish an evil.’ Id., at 339.
“The Oklahoma law may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement. It appears that in many cases the optician can easily supply the new frames or new lenses without reference to the old written prescription. It also appears that many written prescriptions contain no directive data in regard to fitting spectacles to the face. But in some cases the directions contained in the prescription are essential, if the glasses are to be fitted so as to correct the particular defects of vision or alleviate the eye condition. The legislature might have concluded that the frequency of occasions when a prescription is necessary was sufficient to justify this regulation of the fitting of eyeglasses. Likewise, when it is necessary to duplicate a lens, a written prescription may or may not be necessary. But the legislature might have concluded that one was needed often enough to require one in every case. Or the legislature may have concluded that eye examinations were so critical, not only for correction of vision but also for detection of latent ailments or diseases, that every change in frames and every duplication of a lens should be accompanied by a prescription from a medical expert. To be sure, the present law does not require a new examination of the eyes every time the frames are changed or the lenses duplicated. For if the old prescription is on file with the optician, he can go ahead and make the new fitting or duplicate the lenses. But the law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.
“The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial' conditions because they may be unwise, improvident, or out of harmony with a particular school of thought. See Nebbia v. New York, 291 U.S. 502[, 78 L.Ed. 940, 54 S.Ct. 505 (1934)]; West Coast Hotel Co. v. Parrish, 300 U.S. 379[, 81 L.Ed. 703, 57 S.Ct. 578 (1937)]; Olsen v. Nebraska, 313 U.S. 236[, 85 L.Ed. 1305, 61 S.Ct. 862 (1941)]; Lincoln Union v. Northwestern Co. 335 U.S. 525, 93 L.Ed. 212, 69 S.Ct. 251 (1949)]; Daniel v. Family Ins. Co. 336 U.S. 220[, 93 L.Ed. 632, 69 S.Ct. 550 (1949)]; Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421[, 96 L.Ed. 469, 72 S.Ct. 405 (1952)]. We emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134, [24 L.Ed. 77 (1877)] ‘For protection against abuses by legislatures the people must resort to the polls, not to the courts.’
“Secondly, the District Court held that it violated the Equal Protection Clause of the Fourteenth Amendment to subject opticians to this regulatory system and to exempt, as § 3 of the Act does, all sellers of ready-to-wear glasses.
“The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U.S. 141[, 84 L.Ed. 1124, 60 S.Ct. 879]. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental Examiners, 294 U.S. 608[, 79 L.Ed. 1086, 55 S.Ct. 570]. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A. F. of L. v. American Sash Co., 335 U.S. 538 [, 93 L.Ed. 222, 69 S.Ct. 258]. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here. For all this record shows, the ready-to-wear branch of this business may not loom large in Oklahoma or may present problems of regulation distinct from the other branch.” 348 U.S. at 485-89.
A case of perhaps even greater significance is Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963), wherein the Court stated:
“In this case, properly here on appeal under 28 U.S.C. § 1253, we are asked to review the judgment of a three-judge District Court enjoining, as being in violation of the Due Process Clause of the Fourteenth Amendment, a Kansas statute making it a misdemeanor for any person to engage ‘in the business of debt adjusting’ except as an incident to ‘the lawful practice of law in this state.’ The statute defines ‘debt adjusting’ as ‘the making of a contract, express, or implied with a particular debtor whereby the debtor agrees to pay a certain amount of money periodically to the person engaged in the debt adjusting business who shall for a consideration distribute the same among certain specified creditors in accordance with a plan agreed upon.’
“The complaint, filed by appellee Skrupa doing business as ‘Credit Ad-visors,’ alleged that Skrupa was engaged in the business of ‘debt adjusting’ as defined by the statute, that his business was a ‘useful and desirable’ one, that his business activities were not ‘inherently immoral or dangerous’ or in any way contrary to the public welfare, and that therefore the business could not be ‘absolutely prohibited’ by Kansas. The three-judge court heard evidence by Skrupa tending to show the usefulness and desirability of his business and evidence by the state officials tending to show that ‘debt adjusting’ lends itself to grave abuses against distressed debtors, particularly in the lower income brackets, and that these abuses are of such gravity that a number of States have strictly regulated ‘debt adjusting’ or prohibited it altogether. The court found that Skrupa’s business did fall within the Act’s [G.S. 1949, 21-2464 (1961 Supp.)] proscription and concluded, one judge dissenting, that the Act was prohibitory, not regulatory, but that even if construed in part as regulatory it was an unreasonable regulation of a ‘lawful business,’ which the court held amounted to a violation of the Due Process Clause of the Fourteenth Amendment. The court accordingly enjoined enforcement of the statute.
“The only case discussed by the court below as support for its invalidation of the statute was Commonwealth v. Stone, 191 Pa. Super 117, 155 A.2d 453 (1959), in which the Superior Court of Pennsylvania struck down a statute almost identical to the Kansas act involved here. In Stone the Pennsylvania court held that the State could regulate, but could not prohibit, a legitimate’ business. Finding debt adjusting, called “budget planning’ in the Pennsylvania statute, not to be ‘against the public interest’ and concluding that it could ‘see no justification for such interference’ with this business, the Pennsylvania court ruled that State’s statute to be unconstitutional. In doing so, the Pennsylvania court relied heavily on Adams v Tanner, 244 U.S. 590[, 61 L.Ed. 1336, 37 S.Ct. 662] (1917), which held that the Due Process Clause forbids a State to prohibit a business which is ‘useful’ and not ‘inherently immoral or dangerous to public welfare.’
“Both the District Court in the present case and the Pennsylvania court in Stone adopted the philosophy of Adams o. Tanner, and cases like it, that it is the province of courts to draw on their own views as to the morality, legitimacy, and usefulness of a particular business in order to decide whether a statute bears too heavily upon that business and by so doing violates due process. Under the system of government created by our Constitution, it is up to legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is, unwise or incompatible with some particular economic or social philosophy. In this manner the Due Process Clause was used, for example, to nullify laws prescribing maximum hours for work in bakeries, Lochner v. New York, 198 U.S. 45[, 49 L.Ed. 937, 25 S.Ct. 539] (1905), outlawing ‘yellow dog’ contracts, Coppage v. Kansas, 236 U.S. 1[, 59 L.Ed. 441, 35 S.Ct. 240] (1915), setting minimum wages for women, Adkins v. Children's Hospital, 261 U.S. 525[, 67 L.Ed. 785, 43 S.Ct. 394] (1923), and fixing the weight of loaves of bread, Jay Burns Baking Co. v. Bryan, 264 U.S. 504[, 68 L.Ed. 813, 44 S.Ct. 412] (1924). This intrusion by the judiciary into the realm of legislative value judgments was strongly objected to at the time, particularly by Mr. Justice Holmes and Mr. Justice Brandéis. Dissenting from the Court’s invalidating a state statute which regulated the resale price of theatre and other tickets, Mr. Justice Holmes said, T think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.’
“And in an earlier case he had emphasized that, ‘The criterion of constitutionality is not whether we believe the law to be for the public good.’ “The doctrine that prevailed in Lochner, Coppage, Adkins, Bums, and like cases — that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely — has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, ‘We are not concerned . . . with the wisdom, need, or appropriateness of the legislation.’ Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to ‘subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure.’ It is now settled that States “have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.’
“In the face of our abandonment of the use of the ‘vague contours’ of the Due Process Clause to nullify laws which a majority of the Court believed to be economically unwise, reliance on Adams v Tanner is as mistaken as would be adherence to Adkins v. Children's Hospital, overruled by West Coast Hotel Co. v. Parrish, 300 U.S. 379[, 81 L.Ed. 703, 57 S.Ct. 578] (1937). Not only has the philosophy of Adams been abandoned, but also this Court almost 15 years ago expressly pointed to another opinion of this Court as having ‘clearly undermined’ Adams. We conclude that the Kansas Legislature was free to decide for itself that legislation was needed to deal with the business of debt adjusting. Unquestionably, there are arguments showing that the business of debt adjusting has social utility, but such arguments are properly addressed to the legislature, not to us. We refuse to sit as a ‘superlegislature to weigh the wisdom of legislation,’ and we emphatically refuse to go back to the time when courts used the Due Process Clause ‘to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.’ Nor are we able or willing to draw lines by calling a law prohibitory’ or ‘regulatory.’ Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes, or some other is no concern of ours. The Kansas debt adjusting statute may be wise or unwise. But relief, if any be needed, lies not with us but with the body constituted to pass laws for the State of Kansas.
“Nor is the statute’s exception of lawyers a denial of equal protection of the laws to nonlawyers. Statutes create many classifications which do not deny equal protection; it is only ‘invidious discrimination’ which offends the Constitution. The business of debt adjusting gives rise to a relationship of trust in which the debt adjuster will, in a situation of insolvency, be marshalling assets in the manner of a proceeding in bankruptcy. The debt adjuster’s client may need advice as to the legality of the various claims against him, remedies existing under state laws governing debtor-creditor relationships, or provisions of the Bankruptcy Act — advice which a nonlawyer cannot lawfully give him. If the State of Kansas wants to limit debt adjusting to lawyers, the Equal Protection Clause does not forbid it.” 372 U.S. at 726-33.
An excellent discussion and analysis of the United States Supreme Court’s shift on Fourteenth Amendment challenges to economic legislation is set forth in 2 Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure, 2nd § 15.4 (1992), as follows:
“Post-1937 Decisions Regarding ‘Economic and Social Welfare Legislation’. The exact dimension of the Court’s deference to legislative economic judgments remained unclear after [U.S. v.] Carolene Products[Co., 304 U.S. 144, 82 L. Ed. 1234, 58 S. Ct. 778 (1938)]. The Court had suggested that it may consider the validity of the proffered rational basis for economic legislation. Subsequent Court decisions, however, disclosed that the judicial deference to the legislature’s economic regulations was virtually complete.
“In Lincoln Federal Labor Union v. Northwestern Iron & Metal Co.[, 335 U.S. 525, 93 L. Ed. 212, 69 S. Ct. 251 (1949),] the Court upheld the constitutionality of a state’s ‘right-to-work’ law. After noting the Court’s rejection of the ‘Allgeyer-Lockner-Adair-Coppage constitutional doctrine,’ Justice Black stressed that the states have the authority to legislate against ‘injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law.’
“Six years later in Williamson v. Lee Optical Co. [348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955)] the Court rejected the due process and equal protection arguments that the appellees made against the validity of an Oklahoma statute that restricted the ability of opticians to fit or duplicate eyeglasses. Not only was the Court unable to find a specific constitutional prohibition that the Oklahoma measure violated, but the Court was willing to conceive of possible reasons for the enactment that would furnish a rational basis for the law. The Williamson opinion suggests that the Court will not only presume that a legislature had a reasonable basis for enacting a particular economic measure, but also will hypothesize reasons for the law’s enactment if the legislature fails to state explicitly the reasons behind its judgment. Consequently, anyone attempting to argue for the invalidation of a legislative economic enactment may have to discredit the Court’s conceived reasons for the legislature’s actions as well as the arguments of those who support the measure. The Court’s turnabout from the Lochner era became complete with the Williamson decision.
“Justice Black’s opinion in Ferguson v. Skrupa [, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963),] provides an appropriate epilogue for the demise of economic substantive due process. In sustaining a Kansas law that prohibited anyone from conducting the business of debt adjusting unless incident to the practice of law, the Court through Justice Black stated: ‘[W]e refuse to sit as a “superlegislature to weigh the wisdom of legislation”. . . . Whether the legislature takes for its textbook Adam Smith, Herbert Spencer, Lord Keynes or some other is no concern of ours.’ Justice Holmes’s Lochner dissent had become the Court’s standard.
“Another step in the Court’s retreat from its position as guardian of the laissez faire concept of economics was taken when the Court decided that the equal protection clause did not guarantee that economic legislation would treat all businesses equally. In Railway Express Agency v. New York [, 336 U.S. 106, 93 L. Ed. 533, 69 S. Ct. 463 (1949),] the Court rejected a constitutional argument that a New York City ordinance violated the equal protection clause. The ordinance prevented owners of delivery vehicles from placing advertisements on the outside of their vehicles unless the advertisement was for the owner’s business. The appellant contended that the municipal regulation violated the equal protection clause because the proffered rationale for the ordinance, to reduce distractions for vehicle drivers and pedestrians, did not comport with the ordinance’s classification. As long as the classification scheme “has relation to the purpose for which it is made and does not contain the kind of discrimination against which the equal protection clause affords protection’ the Court will sustain the regulation against arguments based on equal protection analysis. Because the classification had an arguable relation to the perceived goal of the legislation, the Court found that the ordinance violated no constitutional proscription.
“Morey v. Doud [, 354 U.S. 457, 1 L. Ed. 2d 1485, 77 S. Ct. 1344 (1957),] is one of the rare instances in which the Supreme Court found that a law violated the equal protection rationality test. Morey would be overruled almost twenty years later. [See City of New Orleans v. Dukes, 427 U.S. 297, 306, 49 L.Ed. 2d 511, 96 S.Ct. 2513 (1976).] The Court’s decision in Morey, and its later decision to overrule Morey, provide a useful background for consideration of the degree of deference that must be given to legislative rules or classifications in the area of economics or social welfare. The Court had decided several cases after Railway Express Co. that strongly suggested that it would defer to legislative judgment on economic matters even if those who opposed a business regulation raised equal protection arguments against the measure. In short, the Court had implied that it would not use the equal protection clause to void economic regulations. In Morey v. Doud, however, the Court invalidated an Illinois statute because it violated the appellees’ right to equal protection under the law.
“The statute in Morey required currency exchanges to meet certain requirements before the State Auditor could issue a license that would allow the exchange to conduct its business. The law specifically exempted from its requirements those who issued United States Post Office, American Express Company, or Western Union Telegraph Company money orders. The Court recognized that the purpose behind the regulation was ‘to afford the public continuing protection’ in its dealing with currency exchange. Moreover, the Court understood that the present characteristics of the American Express Company made unnecessary any regulation of the sale of that company’s money orders. The Court, however, was concerned that the American Express Company would retain its exemption even if its present characteristics changed. In essence, the Act not only created advantages for a ‘closed class’ of sellers but also only had ‘a remote relationship’ between its purpose and its classification scheme. Consequently, the Court concluded that the Illinois law violated the equal protection clause because a majority of the justices believed that this closed class lacked even a rational basis.
“Finally, in City of New Orleans v. Dukes the Court declared that Morey was an erroneous decision and overruled it. The City of New Orleans had adopted an ordinance that prohibited pushcart vendors from selling their goods in the city’s French Quarter. The law exempted from its prohibition those pushcart vendors who qualified under the ordinance’s ‘grandfather’ clause. Only two vendors qualified, and the respondent, who did not qualify under the ‘grandfather clause, contended the ordinance violated the equal protection clause.
“The Court rejected the contention after noting that the ordinance was purely an economic regulation. The Court reminded the respondent that it consistently had deferred to legislative determinations as to the desirability of a particular statutory classification. Any reliance on Morey v. Doud as a basis to invalidate the ordinance was mistaken. The Court explicitly overruled Morey and summarized its reaction to the equal protection argument when it stated that ‘the judiciary may not sit as a superlegislature to judge the wisdom or desirability .of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.’
“Although the Supreme Court has never totally rejected a judicial role in the review of economic and social welfare legislation, it is rare that any law or classification would be held to violate substantive due process or equal protection principles under the rationality standard. In a few cases the Court has been confronted with situations where a legislative classification subjected out-of-state persons to discriminatory taxation or where the state singled out a group, such as mentally retarded persons, for special burdens for no reason other than antipathy towards that group. In these cases the Court invalidated the legislation under the equal protection rationality standard because the state could assert no interest to support the legislation other than a desire to discriminate against the disfavored group. Such laws violate equal protection because the desire to discriminate cannot in itself supply a justification for discriminatory classifications.
“We have come full circle with the concepts of substantive due process and equal protection in the area of general economic or social welfare legislation. Originally there was little active review of such legislation, because the judges realized that the federal courts should defer to the other branches of government unless laws were totally arbitrary deprivations of liberty. Slowly there emerged independent judicial control of all govern mental policies under the guise of enforcing the due process guarantee. Today, the justices have accepted the position that they are only to actively guard fundamental constitutional values and that they should allow other branches of government great latitude in dealing with issues of ‘economics and social welfare’ which do not touch upon these values.” pp. 408-14.
The district court herein acknowledged Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963), but agreed with the plaintiffs that Gilbert v. Matthews, 186 Kan. 672, 352 P.2d 58 (1960), remained viable inasmuch as we had cited it in later cases. In Gilbert we held:
“While the police power is wide in its scope and gives the legislature broad power to enact laws to promote the health, morals, security and welfare of the people, and further, that a large discretion is vested in it to determine for itself what is deleterious to health, morals or is inimical to public welfare, it cannot under the guise of the police power enact unequal, unreasonable and oppressive legislation or that which is in violation of the fundamental law. (Little v. Smith, 124 Kan. 237, 257 Pac. 959 [1927].)
“When once a subject is found to be within the scope of the state’s police power the only limitations upon the exercise of the power are that regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80 [1911]; and State v. Consumers Warehouse Market, [183 Kan. 502, 329 P.2d 638 (1958)]).” 186 Kan. at 677-78.
The rather subtle difference between Gilbert and the cited federal cases is that, under Gilbert, the evil to be corrected must have reference in fact and the legislation must be fairly designed to protect the public against such evil. We conclude the reliance on Gilbert is misplaced and does not afford the judiciary greater latitude in review herein. In the later cases in which Gilbert is cited, no issue was apparently raised relative to Gilbert containing a different standard of review than that employed by the federal judiciary. In State ex rel. Schneider v. Liggett, 223 Kan. 610, 613-14, 576 P.2d 221 (1978), we stated:
“We turn to the due process and equal protection arguments raised by defendant. In order to properly resolve these issues it is necessary to understand the distinction between these two constitutional concepts. In Ross v. Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437 [1974], the Court explained:
“ ‘. . . “Due process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. “Equal protection,” on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable. . . .’ (p. 609.)
“The standard of review in a due process case has fluctuated in response to society’s changing attitudes concerning the proper role of the judiciary in the examination of social and economic regulations imposed pursuant to the state’s police power. In the past courts often struck down laws with which they disagreed on the basis that due process was violated. (See, e.g., Tyson & Brother v. Banton, 273 U.S. 418, 71 L. Ed. 718, 47 S. Ct. 426 [1927]; Adkins v. Children's Hospital, 261 U.S. 525, 67 L. Ed. 785, 43 S. Ct. 394 [1923]; Coppage v. Kansas, 236 U.S. 1, 59 L. Ed. 441, 35 S. Ct. 240 [1915]; Adair v. United States, 208 U.S. 161, 52 L. Ed. 436, 28 S. Ct. 277 [1908]; Lochner v. New York, 198 U.S. 45, 49 L. Ed. 937, 25 S. Ct. 539 [1905].) This practice fell into disrepute, however, beginning with the case of Nebbia v. New York, 291 U.S. 502, 78 L. Ed. 940, 54 S. Ct. 505 [1934]. There the court retreated from its previous attitude and declared the test for due process to be whether the legislative means selected had a real and substantial relation to the objective sought. The rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community. (West Coast Hotel Co. v. Parrish, 300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578 [1937], 108 A.L.R. 1330.) Courts can no longer sit as a ‘super legislature’ and throw out laws they feel may be unwise, improvident or inappropriate. (Ferguson v. Skrupa, 372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 [1963], 95 A.L.R.2d 1347; Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 [1955].) That view remains valid today. (See, North Dakota Pharmacy Bd. v. Snyders Stores, 414 U.S. 156, 38 L. Ed. 2d 379, 94 S. Ct. 407 [1973]; Dean v. Gadsden Times Publishing Corp., 412 U.S. 543, 37 L. Ed. 2d 137, 93 S. Ct. 2264 [1973]; Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 [1965].)”
Fourteenth Amendment challenges have been made in other jurisdictions to legislation which had the effect of eliminating automobile brokering.
Under scrutiny in Detroit Automotive Purchasing Services v. Lee, 463 F. Supp. 954 (D. Md. 1978), was a revision of a Maryland statute relative to the licensing of automobile salesmen which had the effect of eliminating plaintiff’s brokerage business. The basis for the legislation was the protection of consumers from fraud and deception in new car sales. The court held:
“Even if the record gave the DAPS [Detroit Automotive Purchasing Services] broker a ‘clean bill of health,’ plaintiffs’ burden under its substantive due process claim still would not be met. The question presented by plaintiffs’ substantive due process challenge is not whether new vehicle brokers are indeed innocent of any injurious act which the state may legitimately legislate against, but, rather, whether the brokers are so incapable of committing such injurious acts, that regulating their conduct would not rationally correct any existing evil. See generally Ferguson v. Skrupa, [372 U.S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963)]; Olsen v. Nebraska, 313 U.S. 236, 246-47, 61 S. Ct. 862, 85 L. Ed. 1305 (1941); East Hartford Ed. Ass'n v. Bd. of Ed. Etc., 562 F.2d 838, 852 (2d Cir. 1977). The Due Process Clause does not prohibit states from anticipating and addressing problems which have yet to manifest themselves, as long as the problem is at least rationally conceivable. In Olsen v. Nebraska, the Supreme Court expressly affirmed this principle in upholding a Nebraska statute which fixed the maximum compensation which a private employment agency might collect. In view of the competition in the market for employment services and the sophisticated nature of the appellants’ clientele, the appellants maintained, as the plaintiffs have argued in this case, that there is no need for protective legislation concerning their activities. The Olsen Court dismissed the argument, observing:
“ ‘We are not concerned, however, with the wisdom, need, or appropriateness of the legislation. Differences of opinion on that score suggest a choice which “should be left where ... it was left by the Constitution— to the states and to Congress.” . . . There is no necessity for the state to demonstrate before us that evils persist despite the competition which attends the bargaining in this field.’ [313 U.S. at 246, 61 S. Ct. at 865 (citation omitted) (emphasis supplied.)]
“With regard to the Maryland licensing provisions, the Court cannot conclude that the General Assembly acted irrationally in extending the licensing requirement for new vehicle salesmen to the so-called new vehicle broker. Given the complexity of the automobile and its expense as a commodity, it is not irrational to anticipate and address the occurrence of fraud and deception in automobile sales. Nothing plaintiffs have presented has shown new car brokers to be any less capable of dishonesty than new car salesmen. In addition, the availability of less restrictive measures, i. e., House Bill 1759, has long ago ceased to be a relevant consideration in the context of a substantive due process challenge to economic legislation since the Lochner, Coppage, and Adams line of cases was abandoned in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937). Finally, the particular remedy chosen by the General Assembly, a system of licensing vehicle salesmen through licensed dealers, cannot be shown to be an irrational way of addressing the problem of consumer abuse in the sale of automobiles. To the extent that the licensed dealer provides added supervision of the vehicle salesman, the licensing provisions challenged may be a more effective regulation of the broker’s conduct than the system of direct licensing and bonding proposed in House Bill 1759 and advocated by the plaintiffs. The evidence and the arguments offered by the plaintiffs at trial would be more compelling if they were addressed to the Maryland General Assembly rather than a federal district court. Whether or not it is effective legislation, the licensing scheme does not offend the Due Process Clause of the Fourteenth Amendment, and plaintiffs’ claim thereunder cannot be sustained.
“Plaintiffs advance two theories for invalidating the Maryland licensing scheme under the Equal Protection Clause of the Fourteenth Amendment and an analogous doctrine reflected in Article 23 of the Maryland Declaration of Rights. First, plaintiffs contend that the challenged provisions discriminatorily subject new vehicle brokers to restrictive regulation. Second, plaintiffs argue that they are victims of selective enforcement of the licensing provisions, since the MVA rejected a DAPS proposal which was ‘similar’ to the accommodation which permits UBS [United Buying Service] to operate lawfully in the state.
“Unlike the situation encountered with respect to plaintiffs’ due process claim, the relevant state and federal constitutional provisions regarding equal protection are afforded the same judicial construction. See Governor v. Exxon Corp., 279 Md. at 438, n. 8, 370 A.2d at 1118, n. 8. Accordingly, doctrine applicable to the Equal Protection Clause of the Fourteenth Amendment is also applicable to interpretation of Article 23 of the Maryland Declaration of Rights.
“In reviewing legislative choices in the field of economic regulation, courts are no more willing to resort to equal protection doctrine than an analysis under due process. Unless a provision draws a classification which implicates fundamental personal rights or is based upon an inherently suspect distinction such as race, religion, or alienage, the classification will be upheld unless it can be shown that the classification is not rationally related to a legitimate state interest. New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976); McGowan v. State of Maryland, 366 U.S. 420, 425-26, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Governor v. Exxon Corp, 279 Md. at 439, 370 A.2d 1102; Aero Motors v. Adm'r, M.V.A., 274 Md. at 574-79, 337 A.2d 685. Having determined that the challenged licensing scheme is rationally related to a legitimate state interest for the purpose of due process, the initial equal protection argument that the licensing requirement impermissibly discriminates against new vehicle brokers has no validity.” 463 F. Supp. at 968-71.
In State v. Miner, 331 N.W.2d 683 (Iowa 1983), at issue was a statute which required a person engaged in the selling of used automobiles to be licensed as a used motor vehicle dealer. As Iowa law required dealers names to be listed in the chain of title and to maintain repair facilities, these two requirements effectively eliminated the brokering of automobiles. The purpose of the legislation was to protect consumers from fraud and deception. The court held:
“The fact that the licensing requirements may foreclose a certain method of buying and selling used vehicles does not impute to the legislature an intent to enact an unworkable statute. The prohibition of a legitimate business has nothing to do with the outcome of this appeal. See Chicago Title Insurance Co. v. Huff, 256 N.W.2d 17, 23-25 (Iowa 1977) (prohibition of in-state sales of title insurance a reasonable exercise of state’s police power). The legislature may prohibit any business deemed inimical to public welfare. Id. at 25.
“We conclude that the plain meaning of section 322.3(2) and regulation 10.1(4) requires defendant to be licensed as a dealer in order to engage in the retail sale of used motor vehicles. We next consider whether the application of the licensing requirement to defendant violates constitutional and statutory provisions.
“II. Constitutional and statutory considerations. Defendant makes use of the scatter gun approach to raise a number of constitutional and statutory issues. We find no constitutional or statutory provisions which preclude the application of the licensing requirements to defendant.
“A. Defendant claims that the licensing requirements deprive him of due process and equal protection under the federal and Iowa constitutions. U.S. Const, amend. XIV; Iowa Const, art. 1, § 9. Defendant made no attempt to obtain a dealer’s license; his claims, therefore, are basically substantive due process claims in other guises.
“Because the federal and state constitutional provisions contain a similar guaranty, they are deemed identical in scope, import and purpose, and we will look to United States Supreme Court interpretations of the 14th Amendment due process provision for guidance. Chicago Title Insurance Co., 256 N.W.2d at 23.
“The modem tendency has been to extend rather than contract police power regulation over economic endeavors. City of New Orleans v. Dukes, 427 U.S. 297, 303-04, 96 S.Ct. 2513, 2516-17, 49 L. Ed. 2d 511, 516-17 (1976); Chicago Title Insurance Co., 256 N.W.2d at 24. Such regularly enacted statutes are given a strong presumption of constitutionality. Id. at 25. An economic regulation challenged on substantive due process grounds will not be overturned as long as ‘there is an evil at hand for correction, and ... it might be thought' that the particular legislative measure was a rational way to correct it.’ Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488, 75 S. Ct. 461, 464, 99 L. Ed. 563, 572 (1955).
“The well-recognized evil addressed by section 322.3(2) and its regulations is the possibility of fraud and deception in the retail sale of new and used motor vehicles. There can be no dispute that the State may legislate to protect consumers from fraud and deception in the purchase of motor vehicles. Detroit Automotive Purchasing Services, Inc. v. Lee, 463 F.Supp. 954, 968 (D. Md. 1978); see generally Ferguson v. Skrupa, 372 U.S. 726, 730-31, 83 S. Ct. 1028, 1031-32, 10 L. Ed. 2d 93, 97-98 (1963); State v. Hutchinson Ice Cream Co., 168 Iowa 1, 9, 147 N.W. 195, 198 (1914), aff’d, 242 U.S. 153, 37 S. Ct. 28, 61 L. Ed. 217 (1916). The problem posed is whether the use of police power was a rational and reasonable method of protecting consumers of motor vehicles.
“Our function is not that of a super-legislature which weighs the wisdom of the legislation, Detroit Automotive Purchasing Services, 463 F. Supp. at 967; we look only to whether the means chosen by the State are rational and reasonably necessary to the accomplishment of the State’s purpose. We hold that the inclusion of brokers of used cars within the licensing requirement meets this test.
“Brokers have not been singled out by this legislation. They have simply been included in the class of all other persons engaged in the business of inducing the sale of motor vehicles at retail. The fact that the licensing statute will effectively preclude brokering is not determinative. In order to protect consumers from fraud and deception in the sale of motor vehicles, the State may prohibit the operation of brokering through the requirement that a person licensed under chapter 322 take title to any vehicle offered for sale. See Chicago Title Insurance Co., 256 N.W.2d at 24.
“Nor is the law rendered unconstitutional simply because the State, legislatively, could devise a separate licensing scheme for brokers. We do not believe that the availability of a less restrictive alternative is a relevant consideration in the context of a substantive due process challenge to economic legislation. See West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S. Ct. 578, 81 L. Ed. 703 (1937).” 331 N.W.2d at 688-89.
What then is the applicable standard of judicial review? We start with two general rules.
The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. State v. Risjord, 249 Kan. 497, Syl. ¶ 1, 819 P.2d 638 (1991).
The burden of proof is on the party challenging the constitutionality of the statute. State v. Durrant, 244 Kan. 522, 526, 769 P.2d 1174 (1989).
The specific rules for judicial review of a statute of economic regulation challenged on Fourteenth Amendment grounds may be stated as follows:
1. Courts do not substitute their social and economic beliefs for the judgment of the legislative bodies and are not concerned with the wisdom, need, or appropriateness of legislation. Ferguson v. Skrupa, 372 U.S. 726, 730, 10 L. Ed. 2d 93, 83 S. Ct. 1028 (1963).
2. An economic regulation challenged on substantive due process grounds will not be overturned as long as there is an evil at hand for correction and it might be thought that the particular legislative measure was a rational way to correct it. Williamson v. Lee Optical Co., 348 U.S. 483, 99 L. Ed. 563, 75 S. Ct. 461 (1955).
3. The due process clause does not prohibit states from anticipating and addressing problems which have yet to manifest themselves as long as the problem is at least rationally conceivable. Detroit Automotive Purchasing Services v. Lee, 463 F. Supp. 954 (D. Md. 1978).
4. For legislative classification in economic regulation to be violative of the equal protection clause of the Fourteenth Amendment, the classification must amount to an invidious discrimination. Or, put another way, unless a statutory classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, the constitutionality of statutory discrimination is presumed and the challenged classification will be upheld if rationally related to a State interest. New Orleans v. Dukes, 427 U.S. 297, 303, 49 L. Ed. 2d 511, 96 S. Ct. 2513 (1976).
With these rules in mind let us now look at the purpose of S.B. 486. Included therein is an amendment to K.S.A. 8-2402 (Ensley 1982) reiterated herein for convenience as follows:
“Sec. 2. K.S.A. 8-2402 is hereby amended to read as follows: 8-2402. It is hereby declared to be the public policy of this state to provide for fair and impartial regulation of those persons engaged in manufacturing, distributing or selling of vehicles or mobile homes. The provisions of this act which are applicable to such activities shall be administered in such a manner as will continue to promote fair dealing and honesty in the vehicle industry or the mobile home industry and among those engaged therein without unfair or unreasonable discrimination or undue preference or advantage. It is further declared to be the policy of this state to protect the public interest in the purchase and trade of vehicles and mobile homes, so as to insure protection against irresponsible vendors and dishonest or fraudulent sales practices and to assist, provide and secure a stable, efficient, enforceable and verifiable method for the distribution of vehicles to consumers in the state of Kansas and provide a system of tracking the flow of vehicles and their parts as well as preserving supporting services for consumers purchasing or otherwise acquiring vehicles and mobile homes.
One can only conclude that at least some of the amendments to the statute reflect the legislative concerns leading to the enactment of S.B. 486. This does not mean that the amended portion reflects the entire purpose of S.B. 486 as some of the new concerns might already have been covered by the purposes stated in the unamended portion of the statute.
The legislative history reflects that there was considerable testimony at the hearings on the bill that the brokering of automobiles was a significant threat to the continued existence of the present system of distribution of new cars in Kansas through dealers. Automobile manufacturers, distributors, dealers, etc., are heavily regulated businesses. A new vehicle dealer is required to have a franchise from a manufacturer or distributor. Such is expensive to acquire. Additionally, the franchise agreement and state law require the new vehicle dealer to maintain an inventory of vehicles, a showroom, a parts department, and repair facilities. The dealer must have adequate facilities to contain these various functions. Obviously, a payroll must be met consistent with the size of the operation involved. All of this represents a large investment to the dealer. By franchise agreement and state law, the dealer is required to perform warranty and recall work on all vehicles of the manufacturer or manufacturers with whom it holds franchises — regardless of whether that dealership sold the vehicle involved.
By comparison, a broker operates with virtually no overhead in maintaining, or expenses in starting, his or her business. A desk, a couple of chairs, and a computer are about all that is absolutely required. There was testimony presented that the number of new car dealers had shrunk from 433 to 373 in the last four years and that almost 50 percent of Kansas counties now have two or less new car dealerships. Additionally, there was evidence that such merchandising giants as Sears Roebuck, WalMart, and Amway were poised to enter the brokering business in Kansas.
There, additionally, was evidence that a demise in the number of dealerships harms consumers, as warranty work and recall work is done at dealerships. The dealerships also maintain inventories of spare parts which, if no longer available in particular areas, would work inconvenience on the consumer. Concern was also expressed that brokers tended to be “fly-by-night” operations which might well be unavailable to disgruntled customers. That portion of the amendment to K.S.A. 8-2402 (Ensley 1982), which speaks of “to assist, provide and secure a stable . . . method for the distribution of vehicles to consumers in the state of Kansas .. . as well as preserving supporting services for consumers purchasing or otherwise acquiring vehicles and mobile homes” quite clearly is in response to concerns for the consumer problems which would arise from the closing of dealerships.
The amendment is also raising other purposes concerned with regulation of the field, as opposed to the well-being of dealerships, when it speaks of “enforceable and verifiable method for . . . distribution” and “provide a system of tracking the flow of vehicles and their parts.” Exactly what lay behind these concerns is not as clear in the legislative history. There is no written summary of some of the testimony at the hearings. The possible brokering of out-of-state vehicles was mentioned as having the capability of creating problems for the consumer in conjunction with obtaining repairs. Concern was also expressed that the control exerted in the present system to insure accurate information about the product as relayed to the potential customer will be lost as the brokers are, in essence, on their own and they alone deal with customers in brokered sales. Thus, the customer may be misled.
This brings us to a sub-issue herein. The district court restricted the defendants to the legislative history in presenting evidence of the purpose and intent of the legislation. It excluded proffered testimony from the defendants on enforcement problems arising from the brokering of automobiles, and a report from an expert, Dr. George R. Schink, on “The Impacts of Brokering on the Motor Vehicle Market.” The basis for these exclusions was that this precise material had not been presented to the legislature. We find this exclusion to be erroneous. We do not know all of the concerns the legislature had relative to brokering. Under the holding of Williamson v. Lee Optical Co., 348 U.S. 483, previously discussed, the court is not limited to evidence shown to have been before the legislature in determining the “evils” the legislation was aimed at correcting.
It is clear the district court viewed S.B. 486 as merely legislation intended to protect the established system of the sales of motor vehicles against unwelcome intruders and was deemed to be an improper area of legislative endeavor. This is an overly simplistic approach.
A review of the record herein further reveals the; district court relied too heavily on how the brokering business has been operated by the individual plaintiffs herein. The court pointed out these plaintiffs had not been shown to have operated in a manner that was injurious to their customers. The plaintiff brokers did not receive payments from customers in their own names; they had the dealers prepare all necessary title and warranty instruments; they dealt only with licensed Kansas dealers; and all vehicle deliveries were directly from the dealer to the customer. Such operation eliminates much of the risk of consumer fraud. However, such method of operation is not the only form the business may take. In determining the issue herein, we must consider brokering in general and what evils occur or may occur therein. See Detroit Automotive Purchasing Services v. Lee, 463 F. Supp. 954. Brokers can operate on a shoestring and easily fold their tents and vanish — leaving their customers holding the bag on undelivered vehicles, for which they have paid in whole or part, or on incomplete or false title or warranty papers, etc. Unscrupulous brokers could pocket rebates and cause mischief relative to ability to track vehicles and collect sales taxes thereon.
The legislature has long been involved with the establishment and regulation of a system for the sale and distribution of motor vehicles. Virtually every aspect of the industry is regulated— included therein are such matters as what services a dealer must provide to the location of the dealership. The Vehicle Dealers and Manufacturers Licensing Act requires licenses for virtually everybody associated therewith. K.S.A. 8-2414 and K.S.A. 8-2415 legislate on what would normally be purely contractual matters between the dealer and the manufacturer. The legislature has set up all-encompassing legislation on motor vehicle sales. It cannot be seriously disputed that free-ranging unregulated new automobile sales would contain the ingredients of a consumer disaster. Warranties under such circumstances could be rendered meaningless. Sales taxes and titles could be hopelessly skewed. Fraud on the consumer could become rampant. The legislative purpose for regulating this industry as set forth in K.S.A. 8-2402 has to be considered a valid legislative objective under the police power. The legislature has determined that brokering of automobiles threatens the system set forth in the Act and, although authorized for 12 years, that it should be abolished. This perceived threat to the system and the proposed remedy was the subject of extensive hearings before the legislature. Both individual plaintiffs testified at such hearings. They lost in the legislature. The courts are being asked to sit as a superlegislature and overturn the legislature’s action as violative of the Fourteenth Amendment. This we are not empowered to do. Ferguson v. Skrupa, 372 U.S. 726.
We conclude the plaintiffs have failed to carry their burden of proof that S.B. 486 is violative of the Fourteenth Amendment and the district court erred in holding otherwise.
As to the due process claim herein, we conclude as follows:
1. S.B. 486 is economic legislation whose purposes are set forth in section 2 thereof (amending K.S.A. 8-2402 [Ensley 1982]). Such purposes are an expression of legislative concerns over problems that exist or which may rationally be conceived to occur in the future in sales and distribution of automobiles in Kansas unless remedial action is taken.
2. The licensing of businesses involved in the sales and distribution of motor vehicles in Kansas and the protection of purchasers thereof is a proper area of economic regulation by the State.
3. The legislature has determined there is an evil at hand to be corrected or one that may arise if remedial action is not taken. S.B. 486 is remedial action aimed at remedying what were perceived to be problems existing or conceivably occurring in the future. The plaintiffs had the burden of proof that there was no evil for correction and that the legislative measure was not a rational way to correct it. This they have not done, and the district court erred in holding otherwise.
4. As for the equal protection arguments, there is no showing of invidious discrimination herein. There are no suspect classifications shown herein involving race, religion, gender, etc. This is purely an economic regulation aimed at eliminating brokering as an element in the system of the distribution and sales of automobiles in Kansas. Under such circumstances, the constitutionality thereof is presumed and must be upheld where, as here, the legislative classifications are rationally related to a state interest.
5. S.B. 486 is not violative of the Fourteenth Amendment in either of the two asserted grounds: due process or equal protection.
FIRST AMENDMENT
For their next issue herein, defendants contend the district court erred in holding S.B. 486 was violative of all plaintiffs’ First Amendment rights of free speech. We believe it is appropriate to consider this issue separately as it relates to the two categories of plaintiffs — individuals and credit unions. As for the individual plaintiffs, the issue may be resolved quite simply.
The United States Supreme Court has defined commercial speech as that which “propose[s] a commercial transaction.” Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 473, 106 L. Ed. 2d 388, 109 S. Ct. (1989). Traditionally, the claim is asserted where some law or act attempts to restrict a business or profession from advertising its business. Cases include Bates v. State Bar of Arizona, 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691, reh. denied 434 U.S. 881 (1977) (attorney advertising); Va. Pharmacy Bd. v. Va. Consumer Council, 425 U.S. 748, 48 L. Ed. 2d 346, 96 S. Ct. 1817 (1976) (prescription drug prices); Bigelow v. Virginia, 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222 (1975) (abortion service); and Capital Broadcasting Company v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971) (cigarette advertisements). As stated in Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 376, 37 L. Ed. 2d 669, 93 S. Ct. 2553, reh. denied 414 U.S. 881 (1973): “Any First Amendment interest which might be served by advertising an ordinary commercial proposal and which might arguably outweigh the governmental interest supporting the regulation is altogether absent when the commercial activity itself is illegal and the restriction on advertising is incidental to a valid limitation on economic activity.” 413 U.S. at 389.
The main thrust of S:B. 486 is to abolish the business of automobile brokering. The restriction on the individual plaintiff’s right of speech is incidental thereto. We have previously concluded that the abolition of automobile brokering contained in the Act is not constitutionally impermissible. Thus, the individual plaintiffs have no First Amendment claim.
The issue as it relates to the credit unions is more complex. As it relates to the manner in which the credit unions now operate — advertising that solicits members to inquire about the invoice plus $100 price for new cars, and, upon inquiry, referring such members to brokers — there is no problem because the brokerage business is no longer a legal activity. However, the credit unions contend S.B. 486 prevents them from giving out information on automobile pricing as a service to their members or referring any member directly to a dealer. They point to the portion of S.B. 486 that amends 8-2402(q) which provides:
“Any vehicle dealer selling, exchanging or transferring or causing to be sold, exchanged or transferred new vehicles er new mobile hemes in this state must satisfactorily demonstrate to the director that such vehicle dealer er mobile heme dealer has a bona fide franchise agreement er mobile heme sales agreement with the first or second stage manufacturer or distributor of the vehicle er mobile homo manufacturer, to sell, exchange or transfer the same or to cause to be sold, exchanged or transferred.
"No person may engage in the business of buying, selling or exchanging new motor vehicles, either directly or indirectly, unless such person holds a license issued by the director for the make or makes of new motor vehicles being bought, sold or exchanged, or unless a person engaged in such activities is not required to be licensed or acts as an employee of a licensee and such acts are only incidentally performed. For the purposes of this section, engaged in the business of buying, selling or exchanging new motor vehicles, either directly or indirectly, includes: (1) Displaying new motor vehicles on a lot or showroom; (2) advertising new motor vehicles, unless the persons business primarily includes the business of broadcasting, printing, publishing or advertising for others in their own names; or (3) regularly or actively soliciting or referring buyers for new motor vehicles. L. 1990 ch. 52, § 3.
Thus, they argue they would be required to have a dealer’s license to advertise their service or refer a buyer. They cannot obtain such a license as they have no franchise agreements nor any inclination (and probably ability) to obtain one.
The defendants argue that S.B. 486 contains no such restriction. They urged the district court to make the following finding:
“67. The plaintiff credit unions are not licensed by the Motor Vehicle Division in the State of Kansas. Senate Bill No. 486 does not prohibit them from dealing directly with the dealerships they currently deal with indirectly via brokers. Senate Bill No. 486 would not prohibit them from referring vehicle customers directly to Zeller Motor Company, John North Ford and Hofmeier Chevrolet. Senate Bill No. 486 only affects the manner in which the plaintiff credit unions must structure their activity.”
The plaintiff credit unions are not in the business of buying and selling automobiles. They may sell repossessed vehicles, but that is not a factor herein. As they operate now (referring members to brokers) or as they might operate (referring members directly to dealers), they do not and would not be negotiating with prospective purchasers, handling sales, or participating in delivery. No finders fee, commission, or remuneration comes back to the credit union if a sale is made to a person referred to a broker. Presumably, the same would hold true if the referral was made directly to a dealer. The only benefits to the credit union are the intangible good will factor for providing a service to a member and normal loan income if the purchased vehicle is financed through the credit union. Financing through the credit union is not a requirement for obtaining the service. If S.B. 486 has the effect of precluding the credit unions from providing the informational service to customers and referring a member directly to a dealer, under the circumstances described herein, a serious First Amendment claim would be made as such restrictions exceed the anti-brokering purpose of the bill.
K.S.A. 8-2403 charges the defendant Director of Vehicles of the Department of Revenue with enforcement of the Vehicle Dealers and Manufacturers Licensing Act, of which S.B. 486 is a part.
In Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, Syl. ¶ 3, 667 P.2d 306 (1983), we held: “The legal interpretation of a statute by an administrative agency charged with its enforcement is entitled to a great deal of judicial deference, following Richardson v. St. Mary Hospital, 6 Kan. App. 2d 238, 627 P.2d 1143, rev. denied 229 Kan. 671 (1981).”
In Roberts Enterprises, Inc. v. Secretary of Transportation, 237 Kan. 276, Syl. ¶ 1, 699 P.2d 479 (1985), we held: “In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
S.B. 486 is an amendment to a licensure act. The defendant director obviously construes S.B. 486 not to apply to plaintiff credit unions except as they would deal with brokers or if they would endeavor to become brokers themselves. Is this a reasonable construction? We believe that it is. The thrust of the Act is to eliminate automobile brokering. This is the subject with which it deals. Its provisions are aimed at automobile brokering activities. Activities not involving brokering are not covered thereby.
Under such construction, the plaintiff credit unions have no First Amendment claim.
KANSAS CONSTITUTION
The plaintiffs assert that S.B. 486, in addition to the previously discussed claims that it is violative of the First and Fourteenth Amendments to the Constitution of the United States, is also violative of the corresponding provisions of the Kansas Constitution. We have, on occasion, held that in particular areas the Kansas Constitution affords greater rights than does the United States Constitution. For example, see Farley v. Engelken, 241 Kan. 663, 671, 740 P.2d 1058 (1987). As to the issues raised herein, we conclude the Kansas Constitution affords no greater rights and, accordingly, the relevant provisions of the Kansas Constitution will not be discussed separately. Our previous determination relative to the constitutional claims is held to be dispositive of all such claims, whether asserted under the United States Constitution or the Kansas Constitution.
ATTORNEY FEES
The district court awarded attorney fees to the plaintiffs under 42 U.S.C. § 1998 (1998). The.defendants contend this was error. Inasmuch as we have upheld the constitutionality of the legislative enactment at issue herein, the plaintiffs are no longer prevailing parties entitled to such fees. The award of attorney fees must be reversed.
The judgment of the district court is reversed, and the permanent injunction issued therein is vacated.
Six, J., concurs in the result. | [
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The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the prosecution pursuant to K.S.A. 22-3602(b)(l) from an order dismissing an information charging unlawfully arranging sales or purchases of controlled substances using a communication facility (K.S.A. 65-4141).
The facts are not in dispute and may be summarized as follows. In the spring of 1990, the Kansas Bureau of Investigation (KBI) was involved in investigations concerning the distribution of a controlled substance, methamphetamine, in western Kansas and the murder of Clyde Kobbeman. As a result thereof, the KBI had a wiretap on the residential phone of Susan Garrison from October 26, 1990, to November 11, 1990. On November 5, 1990, Ms. Garrison telephoned defendant Paul Hill in Garden City. The call was recorded by the KBI via the wiretap and was designated by the KBI as conversation No. 240. The charge against defendant Hill herein is based upon conversation No. 240.
K.S.A. 65-4141 provides:
“(a) Except as authorized by the uniform controlled substance act, it shall be unlawful for any person knowingly or intentionally to use any communication facility in conspiring or soliciting, as defined in article 33 of chapter 21 of the Kansas Statutes Annotated, or facilitating any felony violation of K.S.A. 65-4127a and 65-4127b and amendments thereto. Each separate use of a communication facility may be charged as a separate offense under this subsection.
“(b) As used in this section, ‘communication facility’ means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures or sounds of all kinds and includes telephone, wire, radio, computer, computer networks, beepers, pagers and all other means of communication.
“(c) Any person who violates this section shall be guilty of a class D felony.
“(d) This act shall be part of and supplemental to the uniform controlled substances act.”
The information filed herein charged violation of all three prongs of the statute: conspiring, soliciting, and facilitating. At the preliminary hearing, the magistrate found no evidence of conspiracy or solicitation, but found the State had met its burden of proof relative to facilitation. The magistrate, however, bound defendant over on all three prongs of the statute, and the information filed reflects that determination.
Defendant filed a motion to dismiss the information. The district court noted the fact that the magistrate had found no evidence of conspiracy or solicitation, reviewed the record of the preliminary hearing, and concurred with the magistrate’s determination relative thereto. The district court concluded that allegations of conspiracy and solicitation in the information were surplusage and of no force and effect. The district court then held that the facilitation prong of K.S.A. 65-4141 required proof of a felony violation of K.S.A. 65-4127a and K.S.A. 65-4127b. It is uncontroverted that such proof is absent herein. The district court then dismissed the information, and the State appeals therefrom.
On appeal, the State contends it should have been permitted to proceed under both the conspiracy and facilitation prongs of the statute. The solicitation prong has been abandoned as a basis for prosecution herein.
Conversation No. 240, upon which the prosecution herein rests, is as follows:
(SUE is Susan Garrison.)
(PAUL is Paul Hill, defendant.)
“PAUL: Hello.
“SUE: Paul.
“PAUL: Ya.
“SUE: What are you doing?
“PAUL: Oh, just got home here for a little bit.
“SUE: Are you going back out there?
“PAUL: Ah, ya.
“SUE: Or are you goofing off?
“PAUL: Oh, I’m probably going back out there later.
“SUE: You wouldn’t have ya know some that I can pick up do ya?
“PAUL: Not right now.
“SUE: Come on.
“PAUL: Waitin for Leroy to call me yet today.
“SUE: Oh, really.
“PAUL: Ya.
“SUE: Think he will?
“PAUL: I hope so.
“SUE: Me too.
“PAUL: He’s suppose to call me here at home. That’s why I’m here now.
“SUE: Ya. Does he usually when he tells ya he does?
“PAUL: Ya. I don’t know when it will be though.
“SUE: Ya. OK. Cause we’re desperate we’re dragging again.
“PAUL: I know what you mean.
“SUE: Well, if he does, I’m gonna go back out there too, because I gotta finish that one truck, but I had to go to the mental health center today. So if he does or something ya might bring ‘some’ with ya and I’ll get it from ya.
“PAUL: OK.
“SUE: But, we haven’t done no truck number 11, have we?
“PAUL: I don’t think so.
"SUE: OK. Do you have truck number 11? I think I wrote down Pile’s truck on your list cause we did I think 11 and 14 so OK well if you go back out there you better bring me good news.
“PAUL: Ya. If I go back out there I will.
“SUE: You’ll cheer me up. Now I’m going to be workin on that one that I was yesterday.
“PAUL: OK.
“SUE: It’s out front.
“PAUL: OK.
“SUE: In the lot .... it won’t take me too awful long, but I’m going to go ahead and get it finished so, I guess we’ll go from there.
“PAUL: OK . . . well I’ll be by.
“SUE: Do your best. OK.
“PAUL: All right.
“SUE: All right. Thanks. Bye.”
At this point, several matters relative to the conversation need to be noted. Although both the magistrate and the district court were provided with transcribed copies of conversation No. 240, neither the tape nor a transcribed copy thereof has been provided to this court for consideration on appeal. The material set forth herein as being conversation No. 240 is taken from the defendant’s brief. As the State has not seen fit to provide us with conversation No. 240 in any form and does not challenge that which was set forth in defendant’s brief as being the conversation, we accept the latter as a true and correct transcription of the conversation.
We also note that while a Garden City detective testified to the meaning of various terms of drug dealers’ jargon, none of such terms are in conversation No. 240. All words utilized will, accordingly, be given their ordinary meanings. Detective Utz testified he believed that Ms. Garrison was advising Paul Hill she was out of the drug and was desperate.
Further, it should be noted Ms. Garrison worked at the same company as did defendant and cleaned company trucks. At the time of his arrest, defendant was questioned by KBI Special Agent Jeffery Brandau. Brandau testified that defendant related the following to him about conversation No. 240:
"He told me that it was in fact about methamphetamine. He knew that Susan Garrison was very involved with methamphetamine; but himself, he claimed he was not a source for the narcotic but was rather an inform— more of an information source, that people could call him and he could tell them where the meth could be located and they could go to those individuals and make their own deal. And I told him, I said, well, you’re pretty specific in the conversation that she was calling you looking for it; and he stated that yes, that is what he told her, but yet he didn’t plan on obtaining the methamphetamine; that Susan Garrison wouldn’t work for him to her best efforts unless she believed that she was going to obtain some methamphetamine, so he was telling her that so she would go out and clean his trucks.”
For the purposes of the appeal herein, we will assume that Ms. Garrison is, in the conversation, expressing a desire to obtain methamphetamine, a controlled substance under K.S.A. 65-4127a and -4127b.
We turn now to the issues raised herein.
CONSPIRACY
For its first issue, the State contends there was sufficient evidence presented to permit it to proceed upon the conspiracy prong of the statute. K.S.A. 65-4141 incorporates the definition of conspiracy set forth in K.S.A. 21-3302. In State v. Roberts, 223 Kan. 49, 52, 574 P.2d 164 (1977), we summarized the proof required to sustain a conviction on a conspiracy charge as follows:
“Our conspiracy statute provides:
“ ‘A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.’ (K.S.A. 21-3302[1].)
“In State v. Daugherty, 221 Kan. 612, 562 P.2d 42, this court holds:
“ ‘Conspiracy as defined by K.S.A. 21-3302 consists of two essential elements: (1) An agreement between two or more persons to commit or assist in committing a crime and (2) the commission by one or more of the conspirators of an overt act in furtherance of the object of the conspiracy.’ (Syl. 4.)
“To prove a conspiracy it must be established that the conspirators had a mutual understanding or tacit agreement, a meeting of the minds, for the accomplishment of the common purpose. This meeting of the minds may be expressed or implied from the acts of the parties. (15A C.J.S., Conspiracy, § 40, pp. 734-735.) However a conspiracy to commit a crime is not established by mere association or knowledge of acts of the other parties. There must be some intentional participation in the conspiracy with a view to the furtherance of the common design and purpose. (15A C.J.S., Conspiracy, § 39, pp. 733-734.)”
The State argues that conversation No. 240 establishes both the conspiracy and the requisite overt act. We do not agree.
In State v. Starks, 249 Kan. 516, 520, 820 P.2d 1243 (1991), we held:
“If, from the evidence presented at the preliminary hearing, it appears that a crime has been committed and there is probable cause to believe the defendant committed the crime, the magistrate shall bind the defendant over for trial. K.S.A. 22-2902(3). See State v. Burrell, 237 Kan. 303, 305, 699 P.2d 499 (1985). “The evidence need not prove guilt beyond a reasonable doubt, only probable cause. The trial court must draw the inferences favorable to the prosecution from the evidence presented at the preliminary examination.’ State v. Sherry, 233 Kan. 920, 935, 667 P.2d 367 (1983). ‘Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt.’ State v. Puckett, 240 Kan. 393, Syl. ¶ 1, 729 P.2d 458 (1986).”
Drawing all inferences favorable to the prosecution from the evidence presented at the preliminary examination, there is a fatal shortfall. It takes some considerable stretching to find probable cause to believe that defendant is agreeing to supply a controlled substance to Ms. Garrison. Even if this hurdle is overcome, there is no evidence of an overt act committed in furtherance of the conspiracy. Black’s Law Dictionary 1104 (6th ed. 1990) states in pertinent part:
“Overt act. An open, manifest act from which criminality may be implied. An outward act done in pursuance and manifestation of an intent or design. An open act, which must be manifestly proved.
“An overt act which completes crime of conspiracy to violate federal law is something apart from conspiracy and is an act to effect the object of the conspiracy, and need be neither a criminal act, nor crime that is object of conspiracy, but must accompany or follow agreement and must be done in furtherance of object of agreement. Marino v. United States, C.C.A.Cal., 91 F.2d 691, 694, 695.”
Clearly, the magistrate did not err in finding the evidence was inadequate to bind defendant over on the conspiracy prong or theory. Like the district court, we are perplexed as to why, after such a finding, the conspiracy aspect remained in the charge. We find no error in the district court’s striking the conspiracy allegation from the information as surplusage, under the circumstances herein.
FACILITATION
For its final issue, the State contends the district court erroneously construed K.S.A. 65-4141 in holding that a prosecution for facilitation required proof of a felony violation of K.S.A. 65-4127a and -4127b. It is undisputed that no evidence of such violation was offered or admitted.
The State argues that, inasmuch as prosecutions under K.S.A. 65-4141 which are based upon conspiracy or solicitation do not require proof of a completed underlying felony, then neither does a prosecution based upon facilitation.
In State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987), we held: “When a penal statute is questioned, the court is required to strictly construe the act in favor of the accused.” See State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988); and State v. Cole, 238 Kan. 370, 372, 710 P.2d 25 (1985).
In State v. Carmichael, 240 Kan. 149, 159, 727 P.2d 918 (1986), we stated: “The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature.”
Black’s Law Dictionary 591 (6th ed. 1990) states:
“Facilitation. In criminal law, the act of making it easier for another to commit crime; e.g. changing of cars to evade police officer who has suspect under surveillance and thus to enable a clandestine transfer of contraband to take place would constitute ‘facilitation’ within forfeiture statute. U.S. v. One (1) Chevrolet Corvette Auto. Serial No. 194371S121113, C.A.Fla., 496 F.2d 210, 212.”
Webster’s Third New International Dictionary 812 (1961) states:
“facilitate ... 1: to make easier or less difficult: free from difficulty or impediment. ... 2: to lessen the labor of (as a person): ASSIST, AID.”
21 U.S.C. § 843(b) (1988) provides:
“Communication facility. It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of this subchapter or subchapter II of this chapter. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term ‘communication facility’ means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.”
In conjunction with this federal statute, the term “facilitating” has been construed on a number of occasions. The common thread is that the use of a communication facility made the commission of the underlying drug offense easier or less difficult or assists or aids in the offense. See U.S. v. Adler, 879 F.2d 491, 495 (9th Cir. 1988); United States v. Phillips, 664 F.2d 971, 1032 (5th Cir. 1981), cert. denied 457 U.S. 1136 (1982).
In support of its argument that proof of the commission of an underlying crime is unnecessary, the State cites United States v. Pierorazio, 578 F.2d 48 (3rd Cir.), cert denied 439 U.S. 981 (1978). In that case, the defendant argued that proof of an underlying inchoate crime, such as attempt or conspiracy to dis tribute controlled substances or to possess controlled substances with intent to distribute, did not support a facilitation conviction under 21 U.S.C. § 843(b) and that proof of an underlying, actual, consummated substantive offense was necessary. This argument was rejected, with the court holding that proof of an underlying inchoate crime such as attempt or conspiracy to distribute a controlled substance was sufficient.
In the case before us, there was no probable cause to establish that any underlying controlled substance felony had been committed — inchoate or substantive. Reliance on Pierorazio is thus misplaced.
In U.S. v. Dotson, 895 F.2d 263 (6th Cir.), cert. denied 111 S. Ct. 94 (1990), the defendant was charged with using a communication device to facilitate distribution of a controlled substance and possession of the substance. The court held that in order to find a violation of 21 U.S.C. § 843(b) the jury must find beyond a reasonable doubt that the underlying drug crime was actually committed.
In U.S. v. Johnstone, 856 F.2d 539 (3rd Cir. 1988), the defendant was convicted of, inter alia, using a telephone to facilitate the distribution of methamphetamine. The court held:
“In order to obtain a conviction . . . the government must prove (1) knowing or intentional (2) use of a communication facility (3) to commit, cause or facilitate the commission of a drug felony. The occurrence of the underlying drug felony is a fact necessary to finding a violation of § 843(b).” 856 F.2d at 542-43.
We do not believe the difference in the wording between 21 U.S.C § 843(b) and K.S.A. 65-4141 requires a different result. Solicitation, conspiracy, and attempt are inchoate crimes.
Black’s Law Dictionary 761 (6th ed. 1990) contains the following definition:
“Inchoate crimes. An incipient crime which generally leads to another crime. An assault has been referred to as an inchoate battery, though the assault is a crime in and of itself. The Model Penal Code classifies attempts, solicitation and conspiracy as such. § 5.01-5.03.”
In our code these three offenses are set forth in article 33 of chapter 21 and are categorized as “anticipatory crimes.” By their very nature, they are complete before the other crime or crimes with which they are concerned has or have been consummated. Facilitation is not in this category. One cannot facilitate the commission of a crime which néver occurs within the context of K.S.A. 65-4141. We conclude that the district court correctly held that in a prosecution under K.S.A. 65-4141 charging a defendant with having used a communication facility to facilitate a felony violation of K.S.A. 65-4127a and 65-4127b, the State is required to prove the commission of the underlying felony violation. Dismissal of the information, accordingly, was not erroneous.
Before concluding, we note the 1992 legislative amendments to K.S.A. 65-4141, effective July 1, 1993, set forth in L. 1992, ch. 298, § 76, as follows:
“65-4141. (a) Except as authorized by the uniform controlled substance substances act, it shall be unlawful for any person knowingly or intentionally to use any communication facility :(1) in conspiring er soliciting^ as defined in article 33 ef chapter 2i ef tíre Kansas Statutes Annotated, er facilitating any felony violation ef K-S.A. 65 -4137a and 65 4-l-27b and amendments thereto committing or in causing or facilitating the commission of any felony under K.S.A. 65-4127a, 65-4127b or 65-4159 and amendments thereto; or (2) in any attempt to commit, any conspiracy to commit or any criminal solicitation of any felony under K.S.A. 65-4127a, 65-4127b or 65-4159 and amendments thereto. Each separate use of a communication facility may be charged as a separate offense under this subsection.”
These amendments, inter alia, conform the offense to 21 U.S.C. § 843(b) by utilizing the same language: “committing or in causing or facilitating the commission of any . . . felony.”
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Joseph Enzenperger, jr., to recover damages for injuries sustained by him while in the employ of the Fowler Packing Company. He was employed to haul meat in trucks from floor to floor of the defendant’s six-story packinghouse. The trucks were carried from the different floors on two freight-elevators, operated in a single shaft. These elevators, which were merely moving platforms, without protection from above or on the sides and without a center partition between them, were operated from the fifth floor, and were used for freight only, the employees being required to walk up and down the stairways. The elevator-shaft was enclosed, but the elevators operating in it were not. Double doors opened into the shaft, each of which was provided with weights which would close the doors unless they were held or propped open. A boy was stationed at the door to open it for workmen and see that it was closed.
On March 31, 1906, the elevators were in operation, the south elevator being loaded with barrels at the sixth floor while the north one was two floors below. The double doors on the sixth floor, one opposite the south elevator and the other opposite the north elevator, were both open, and a barrel weighing seventy pounds in some way rolled through the north door, striking against the side of the south elevator, and passed down the north side of the shaft, striking and injuring Enzenperger, who was in the act of placing a truck on the north elevator, then at the fourth floor. For the injuries thus sustained the plaintiff brought this action, alleging negligence in the company in failing properly to enclose and make' secure the elevator as well as the elevator-shaft and in failing to furnish him with a reasonably safe place in which to work. The answer of the company, aside from a general denial, was an averment that the plaintiff’s own negligence contributed to the injury, and that if the injury was the result of negligence it was that of the plaintiff’s coemployees.
On the demurrer to the evidence the question is raised as to whether the case was tried upon the proper theory. It was presented to the jury upon the theory that the provision of the factory act applies which provides:
“Every person owning or operating any manufacturing establishment which may contain any elevator, hoisting-shaft or well-hole shall cause the same to be properly and substantially enclosed or secured, in order to protect the lives or limbs of those employed in such establishment.” (Laws 1903, ch. 356, § 1.)
It is insisted that no reference was made in the petition to the statute, either by its title or the number of the section, and also that it contained no allegations which justified the plaintiff in claiming under the statute. There is little reason for this complaint. While the averments of the petition did not make specific reference to the statute, they clearly brought the case within the application of the provision quoted, which, as-will be observed, does little more than enlarge the duties of the operator in caring for the lives and limbs of the employees and incidentally prescribes a rule of evidence to be applied in such cases. The petition set forth that defendant owns and operates a packing plant, and that it is a manufacturing establishment. The elevators were described, and it was alleged that there .was no partition between them, no hoods over them, and no such guards or means provided as would protect employees from being injured by barrels or other articles falling from one elevator down into the space in which the other elevator was operated, and that the elevators were not enclosed and provided with tops, although it was necessary and practical to have it done. The petition disclosed that the defendant belongs in the class of operators on whom the statutory duties are imposed; that it failed in the performance of the duties; and that through its neglect the plaintiff suffered an injury. It thus appears that the petition contained all that plaintiff was required to prove in order to avail himself of the protection of the act and to make out a prima facie presumption of negligence. It is enough when he states in his petition the facts that he is bound to prove in order to make out his case, and since he is not required to prove the factory act, which is a public statute, it is unnecessary to make specific reference to it in his pleading. (Lore v. American Mfg. Co., 160 Mo. 608, 61 S. W. 678.)
It is contended that the testimony did not show culpable negligence on the part of the company. In this connection it is argued that the shaft in which both elevators were operated was enclosed so as to meet the requirements of the statute; that doors for entry into the elevators, which completed the enclosure, were provided, and men stationed at these doors to open and close them, and if there was neglect in leaving the north door open it was the neglect of the doorkeeper, a fellow servant of the plaintiff. If the enclosure of the shaft alone had been the measure of the company's duty in protecting the lives and limbs of its employees working on or about the elevators, it was not performed. The north door, which formed a part of the enclosure of the shaft, was not closed. The loading of the south elevator did not require the opening of the north door, through which the barrel fell. That door was not only left open but it had been propped open. How long it had been open was hot shown. Shortly before the accident an employee looked up and noticed that the door was standing open. The plaintiff attempted to show the length of time, but was unable to prove when and by whom it was opened, and the defendant, within whose reach the testimony was and who must have known the fact and could have produced the testimony, failed to do so. The defendant did not offer to show that it did not know the fact, nor that it had any excuse for not knowing, and it is generally held that an omission of a defendant to produce important testimony relating to a fact of which, if it exists, he has knowledge,’ and which is peculiarly within his reach and control, raises the presumption— open to explanation, of course — that the testimony, if produced, would be unfavorable to him. (The State v. Grebe, 17 Kan. 458; Belknap.v. Sleeth, ante, p. 164; 1 Wig. Ev. § 285; 6 Thomp. Com. Law of Neg. § 7656.)
There was sufficient testimony to show neglect of the company in leaving this unprotected opening into the shaft where the north elevator was in operation and wherein the plaintiff was working. On general principles it was the duty of the company to provide a safe place for the plaintiff to work, and this is a continuing duty that cannot be delegated — a responsibility which it could not place on the shoulders of any one else and escape liability for a resulting injury. (H. & St. J. Rld. Co. v. Fox, 31 Kan. 586, 3 Pac. 320; Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102; Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856; Crist v. Light Co., 72 Kan. 135, 83 Pac. 199; Schwarzschild v. Weeks, 72 Kan. 190, 83 Pac. 406, 4 L. R. A., n. s., 515; Harper v. Cement Co., 76 Kan. 612, 93 Pac. 179; Wendler v. People’s House Furnishing Co., 165 Mo. 527, 65 S. W. 737.) We prefer, however, to rest this decision on the failure of the company to observe the statutory requirement to enclose and make secure the elevator on which the plaintiff was working when he was injured. The statute, as will be observed, requires that an elevator, as well as a hoisting-shaft or well-hole, shall be enclosed and secured. It is not enough that the shaft and space in which several elevators are being operated is enclosed. So far as the language of the act discloses the legislative purpose, it is just as important that the elevator shall be safeguarded as the shaft or well-hole. Each is properly and substantially to be enclosed and secured in such a way as to give protection to the lives and limbs of those working on or about them.
Reference is made to the statutes of other states which provide only for enclosing and securing elevator-shafts, and it is argued that this indicates that legislation of this class is designed to safeguard the opening rather than the elevator or appliance operating in the shaft or opening. This comparison of statutes, however, disclosing the added provision in the Kansas act, indicates that the Kansas legislature intended to impose an additional duty upon the owner or operator of such establishments, and that duty was the enclosing and securing of elevators as well as shafts and well-holes. Indeed, it would seem that there is as much necessity for safeguarding an elevator as to provide protection for a shaft or well-hole. A railing or guard which might be sufficient protection for a hoisting-shaft or well-hole' might be wholly inappropriate for an elevator and inadequate to protect those working upon it.
This case illustrates the necessity for greater protection than is afforded by an enclosure of a shaft wherein two elevators are being operated. It appears that there is almost as much danger of articles loaded on one elevator falling down the shaft upon those working on the other elevator at a lower level as there is of articles falling through an open door of the shaft from an upper floor. Even if the north door had been closed there was danger that a misdirected barrel, put in through the south door, would pass over and off of the south elevator into the shaft where the north elevator was being operated and cause just such an injury to an employee as was suffered by plaintiff. The shaft was considerably larger than the two elevators operating in it. It was about eleven feet long by nine and one-half feet wide, while each elevator was about seven feet long by four feet wide. At the west end of each elevator there was a space between it and the wall of the shaft of about two and one-half feet, and at the east end a space of about eighteen inches. Between the sides of the elevators and the outside walls of the shaft there was a space of about six inches. A common guide-post about a foot wide was placed in the middle, between the two elevators. On the outside of each elevator there was placed a guide-post, and these three posts were grooved so as to control the elevators in going up and down the shaft. Over each elevator, and about six feet above its floor, was a cross-beam. From the ends of this beam iron rods extended to the corners of the platform on each elevator. There was a wheel on the top of each beam which was used in raising and lowering the elevators, and this brief description includes about all there was of the elevators in question. There were no screens, or guards, around them, no partition between them, and no hoods, or coverings, over them. It is easy to understand that an enclosure of the shaft was no protection against articles falling from upper floors or from one elevator upon employees working below on the other. A single elevator operating within an enclosed shaft might be made secure for most purposes, but two uncovered freight-elevators, working in a shaft 'such as has been described, are not enclosed or secured within the meaning of the statute. Articles had previously fallen into the shaft, and the peril from that source to those working below upon the elevators was imminent.and obvious. It' appears to be practicable to enclose the elevators and to put hoods, or covers, over them. If the elevators had been safeguarded the injury to plaintiff would have been averted, and it was -to avoid such accidental injuries to employees that the duty to enclose or secure elevators was imposed upon employers. The failure of the company to perform the duty expressly required by statute is prima facie negligence. Assumption of the risk was not available as a defense, and when plaintiff proved that he was injured in consequence of such neglect he made a case which warranted the jury in finding for him. (Madison v. Clippinger, 74 Kan. 700, 88 Pac. 260; Manufacturing Co. v. Bloom, 76 Kan. 127, 90 Pac. 821, 11 L. R. A., n. s., 225.)
It is argued that the court erred in instructing the jury that the company was required to' enclose and secure the elevators, whereas the statute only requires them to be enclosed or secured. In the first instruction the court employed the phrase four times, and in one instance used the word “and” instead of “or,” but at the close of the instruction, when the court came to state the conditions upon which the plaintiff might recover, the language of the statute was employed. It was evidently an unintentional inaccuracy, and when it is read in connection with the whole instruction it is clear enough that it could not have misled the jury. Mere verbal criticisms of this character find little favor in reviewing courts. In a later instruction the court again used the same form of expression, but we are satisfied that the use of the word “and” instead of “or” in any part of the charge did not result in prejudice to" the defendant. • In effect it did not enlarge the duty of the company toward its employees. The real purpose of the statute is to protect the lives and limbs of employees in manufacturing establishments. It imposes on owners and operators the duty of causing elevators, hoisting-shafts and well-holes “to be properly and substantially enclosed or secured, in order to protect the lives and limbs of those employed in such establishments.” (Laws 1903, ch. 356, § 1.) Plaintiff contends that “and” and “or,” as used in this provision, are convertible terms, and that the phrase .means no more than if it had read “shall cause the same to be properly and substantially enclosed — that is to say, secured in order to protect the lives and limbs.” It is very clear, however, that the enclosure mentioned must be one to effectuate the humane purpose of the statute —that is, to secure the lives and limbs of employees. It would seem that force might and should be given to both words. To enclose an elevator might not always make it secure, and hence other precautions might be necessary to accomplish the legislative purpose. In any event the enclosure specified must be one that will secure, and if it does not it is not up to the statutory requirement. A shaft might be sufficiently safeguarded by a railing or fence around it three or four feet high, depending upon its location and the use to which it was put. Some might need no more than a guard to keep persons from falling into them, while others might need a complete enclosure to protect those below from falling articles. A railing around some well-holes might suffice, but for others in a different location a trap-door might be required. In the case of the elevators under consideration an enclosure was manifestly necessary to the safety of employees, and an enclosure, too, that would secure such safety. It follows, therefore, that as to them the expression “to enclose and secure” exacted no higher duty than if the court had used the statutory language: “enclose or secure.”
No material error was committed in the instructions given or refused, nor is there anything substantial in the objection made to a ruling on the admission of testimony. Although the award seems to be liberal, we cannot say from the testimony that it indicates passion or prejudice on the part of the jury.
The judgment of the district court is affirmed. | [
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Per Curiam:
S. W. Cooper, having acquired the interest of the widow, A. Mary Franke, in the land, and also the mortgage which she and her husband had executed before his death, became vested with the legal and equitable title to an undivided half interest in the property. Robert U. Grinstead, who finally purchased the remaining half interest of the children, claims ownership of the whole through a tax deed executed in September* 1896, based on a sale for the taxes of 1892. The tax deed was of record less than five years when it was attacked, and hence it is subject to a strict construction. Its omissions cannot be supplied by inference nor its defects cured by presumption. It appears that the _ consideration for which the deed was issued included a fee of ten cents per lot for printing the tax-sale notices, when proof of the publication had not been returned and filed with the county treasurer within the required time. This invalidated the tax deed. (Douglass v. Walker, 57 Kan. 328, 46 Pac. 318.) The final redemption notice included the printer’s fee •of ten cents per lot and the interest thereon computed to the last day of redemption. In the tax deed it was recited that the property was bid off by the county treasurer, but it failed to state for whom or for how much it was bid off, and this defect, having been challenged within the five-year period, is sufficient to overthrow the deed. (Penrose v. Cooper, 71 Kan. 720, 81 Pac. 489, 84 Pac. 115.)
There is nothing substantial in the questions of practice raised by plaintiffs in error. The judgment is affirmed. | [
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Per Curiam:
The court has examined all the objections to the consideration of this case and finds none of them tenable.
The fact that the record' meets all the requirements of a proceeding in error and of a criminal appeal does not vitiate it.
The petition demurred to states a cause of action and is otherwise unobjectionable. The demurrer should have been overruled, the injunction should not have been dissolved, and the contempt proceeding should not have been quashed.
The case is reversed and remanded. | [
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The opinion of the court was delivered by
Porter, J.:
On November 2, 1905, Joseph Risinger and wife made and delivered to James O’Neill an oil- and-gas lease of certain lands in Wilson county of which they were owners. Two of the provisions of the lease are involved in this proceeding. The first reads:
“In case no well for oil or gas be drilled on said premises within six months • of date hereof all rights and obligations secured under this contract shall cease and determine, unless the second party shall elect to continue this lease in force, as to all of said premises, by paying an annual rental of one dollar per acre, payable yearly in advance, for all of said premises.”
The second is as follows:
“Provided, however, that the second party shall have the -right at any time to terminate this lease by surrendering this lease, released from records, and 'shall thereafter be released from all obligations and liabilities under the same.”
No well for oil or gas was drilled within six months of the date of the lease, nor at any time, and the lessee never paid any rental. In July, 1906, the owners of the lands brought this action to recover from the lessee the sum of $480 for rental of the lands for one year. The petition set up a copy of the lease and alleged that no well for oil or gas was drilled on any of the premises within six months of the date of the lease, nor at any time since, and then alleged that defendant, O’Neill, “elected to retain said premises under the said lease, by failing to surrender the said lease to plaintiffs upon the expiration of the six months, within which time a well for oil or gas was to be drilled on said premises.” It' was further alleged that the $480 was due; that no part of it had been paid; and that a demand had been made for it and refused. A demurrer to the petition was overruled, and defendant, electing to stand upon his demurrer, brings the case here for review.
Defendant contends that the lease is merely an option giving him the right to operate thereunder by drilling a well for oil or gas within six months from the date the lease was executed, and that a failure to do this forfeited the lease, unless he elected to continue it in force by paying in advance the annual rental of one dollar per acre; and that a failure either to drill a well within six months or to pay the rent forfeited the lease and the rights of all parties thereunder. On the other hand, it is the contention of plaintiffs that the general provision giving the second party the right to terminate the lease at any time by surrendering it, released from the records, controls, and that the failure of defendant to surrender the lease under this provision continued it in full force and effect.
Plaintiffs rely upon the doctrine that'“a lessee cannot set up his own default in order to terminate the lease or escape liability under its provisions.” The doctrine contended for is stated in Brown v. Cairns, 68 Kan. 584, 66 Pac. 639, the syllabus of which reads:
“Covenants in a lease providing for its termination upon failure of the lessee to comply with specified conditions are for the benefit of the lessor only, and the lessee cannot, by a breach of its covenants, abrogate the lease and thus secure advantage from his own default.”
The doctrine has no application to a lease of this character. It would undoubtedly control if the lease in question contained covenants requiring the lessee to do anything. For instance, if it required the lessee to drill an oil- or gas-well within' a certain period his failure to perform his covenant could not be taken ad vantage of by him to declare a forfeiture. But the lease does not bind the lessee to do anything. It is a mere naked option. Under it the control of the premises remains in the lessors. The lessee has the right, if he sees fit, to enter, upon the premises and prospect for oil or gas. In case oil or gas be found the lease provides what shall be done with it, and what the rights and obligations of both parties shall be, but nowhere in the lease does the lessee agree that he will drill a well or that he will enter upon the premises for any purpose. The absence of any covenant in the lease requiring the lessee to drill a well, or even to enter upon the lands and prospect- for oil or gas, or to pay rental for such privileges, creates the distinction between this' case and cases like Brown v. Cairns, supra, where the lessee was obliged by the terms of the lease to perform certain things. The lease here , being a mere option, the doctrine declared in Brown v. Cairns has no application. If authorities are needed in support of this proposition the following are directly in point: Glasgow, Appellant, v. Chartiers Oil Co., 152 Pa. St. 48, 25 Atl. 232, and Snodgrass v. South Penn Oil Co., 47 W. Va. 509, 35 S. E. 820.
The lease in this case provides in plain language that it shall be no longer binding upon either party in case no well be drilled for oil or gas within the first six months, unless the second party shall elect to continue it in force by paying an annual rental per acre. This provision protects the lessors by preventing the property from being tied up' indefinitely, for if the lessee fail to complete a well within six months the lessors would know that the lease had expired, unless within that time the lessee had extended it by making payments in advance for one year. The-clause in the lease providing that the lessee shall have the right at any time to terminate the lease by surrendering it canceled is a general provision, and must be construed in connection with the other clause which expressly declares that a failure to drill within six months or to pay rent shall terminate the lease. The latter clause does not-pretend to exclude the first from becoming operative.
It follows that the demurrer to the petition should have been sustained. The judgment is reversed and the cause remanded, with directions to sustain the demurrer. | [
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The opinion of the court was delivered by
Porter, J.:
This action was brought to recover damages for failure to deliver a telegram. The jury returned a verdict allowing $770.52 damages, and judgment was rendered thereon, which the defendant by this proceeding in error seeks to reverse.
The telegram in question was sent from Neosho, Mo., and reads as follows:
“To Henry Gilstrap, Lyons, Kan.:
“Father very sick, come if can.. John Sayers.”
It was received at Lyons, Kan., at 9:28 in the forenoon of June 7, 1906. It was not actually delivered until 2:25 in the afternoon of the following day. The sender of the message was plaintiff’s brother-in-law. The person referred to in the message was the father of plaintiff, and was an old man, whose death occurred before plaintiff was able to arrive at his bedside. The plaintiff had lived at Lyons for about a year, and at the time the message was received his residence was within five blocks of the office of the defendant. He was a laboring man who had been employed with another brother-in-law by the name of Cubage, but at the time the message was received was at work at the salt-plant in Lyons, which was beyond the limits in which defendant delivered messages. When the message was received the messenger of the defendant copied it, and it is admitted that both he and the operator knew its contents.
The messenger, before leaving the office, prepared a postal-card' notice of the receipt of the message, addressed to Henry Gilstrap, Lyons, Kan.,' and went to the post-office and inquired of Mr. Dupree, deputy postmaster, whether he knew the plaintiff and where he lived. Mr. Dupree told him that plaintiff had been working on the Presbyterian church with Mr. Cubage but that he thought they were through with the work on the church. Mr. Cubage was at the time at work on a- building on the west side of the public square. Notwithstanding the messenger was well acquainted with Cubage and had formerly worked with him, the only effort he made to find him at that time for the purpose of learning plaintiff’s address was to inquire at a store and of some person on the street, whose name he could not recall when a «witness. He then returned to the post-office and mailed the notice. He made no further attempt to deliver the telegram, except that he called at the residence of Mr. Cubage after mailing the card, but found no one at home. Mr. Cubage testified-that he met the messenger on the street the next day and asked him why he had not delivered the message, and that he replied: “ ‘By God, I don’t have to run all over town delivering messages. I put a card in the post-office and he is supposed to get his mail.’ ”
It is admitted that Henry Gilstrap was well known to the postmaster, the- merchants, and many other citizens; that he was a subscriber to the telephone and that his name was in the alphabetical last of subscribers thereto, a copy of which was in the telegraph office and within, access of the operator and the messenger. The defendant company claims that it was not its custom to deliver messages by telephone, except where directions had been previously given by merchants and others to that effect, but there is no reason why the telephone might not have been used to call up the family of Henry Gilstrap to ascertain his, whereabouts and inform them that a telegram had been re ceived. Nor is there any apparent excuse for the failure to find Mr. Cubage, who was well known, and who, the messenger was informed, would probably know where plaintiff could be found. At about eleven o’clock on thé following day the family of plaintiff heard in a roundabout way that there was a telegram at the office, and learned its contents by telephone; and, although the message was not delivered until after two o’clock in the afternoon of that day, plaintiff learned of its contents about noon. It was then too late for him to take the most direct railroad route to Neosho and he left on the morning of the 9th, reaching Neosho some hours after his father’s funeral had occurred. He repaid to the sender the fifty cents paid for the message, and the actual pecuniary loss sustained by him amounted to $20.52. Of the damages allowed $750 was given as exemplary, or punitive, damages. It appears that a second telegram was received by plaintiff at four o’clock on the 8th, informing him of his father’s condition, so that when he started on the 9th he knew that he could not see his father alive, but the evidence shows that if the telegram had been promptly delivered he could have reached the bedside of his father before the latter’s death.
The only question in this case is whether there was such wanton and reckless disregard of the rights of plaintiff by the failure to deliver the telegram as to warrant exemplary damages, and the further question whether the amount allowed is excessive. We have no hesitation in saying that the evidence shows such wanton and gross negligence on the part of defendant as to warrant exemplary, or punitive, damages. And while the amount is somewhat excessive, and a great deal more than we would have allowed had the question been submitted to' us in the first instance, we do not feel, under the circumstances, like requiring plaintiff to remit any part of it. The case is in all respects like Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283, in which exemplary damages were allowed against the same company to the sender of a death message where the telegram was not delivered on account of gross negligence of the agents of the company. The cases in support of the rule heretofore adopted by this court in respect of the allowance of such damages are cited in the opinion in that case, and we deem it unnecessary to review them here. The judgment is affirmed.
Johnston, C. J., Burch, Mason, Smith, Graves, Benson, JJ., concurring. | [
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Per Curiam:
The questions involved in this case are the same as in The State v. Dickinson County, ante, p. 540, except as to the right of Makins to maintain the suit. Under the authority of The State v. Dickinson County, supra, as to the legality of the contract, and of Gas Co. v. Railway Co., 74 Kan. 661, 87 Pac. 883, Bunker v. Hutchinson, 74 Kan. 651, 87 Pac. 884, and chapter 334 of the Laws of 1905 as to the right of Makins to maintain the suit, the petition states a cause of action. The ruling of the court sustaining the demurrer thereto is reversed and the case is remanded, with instructions to overrule the demurrer and to proceed. | [
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Per Curiam:
The school district sued Boeken, ex-treasurer of the district, and his bondsmen for $331.82, alleged to be remaining in his hands as such treasurer, belonging to the school district, and withheld by him on demand from his successor in office. Boeken answered setting up a counter-claim for a small amount, and admitted a balance of indebtedness of $105.29, for which he offered to confess judgment. The case was tried to a jury in the district court of Allen county, a verdict was returned in favor of the plaintiff for $194.54, and judgment was rendered against the defendants for that sum and costs. The difference between the amount of the judgment and the offer is $89.25, and this is the sum attempted to be put in controversy in this court by the appeal. The error proceeding is not within the jurisdiction of this court. (Civ. Code, § 542; Gen. Stat. 1901, § 5019.)
The proceeding in error is dismissed. | [
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Per Curiam:
This is an action to recover on an insurance contract similar to that' involved in Insurance Office v. Woolen-mill Co., 72 Kan. 41, 82 Pac. 513. It covered the same loss, the facts concerning the origin of the fire and the burning of the wool were substantially the same, and the verdict and judgment were in favor of the insured. ' In the cited case it was contended that spontaneous combustion could not take place in “wool in the grease.” That contention is not insisted on in this case.
The principal reason assigned for reversal is that the verdict is not supported by the testimony; that in fact there was no evidence showing that the wool was de stroyed by fire, but that decomposition rather than combustion caused the destruction of the wool. There is as much evidence that the wool was damaged by fire as in the former case, and that was held to be sufficient to support the verdict. The wool had' been tightly boxed in a wareroom, submerged in water for several days, and there is evidence that when the water subsided and the door of the room was opened smoke issued from the room and the heat was so intense that no one could enter the room for a considerable time. Added to that was the odor of the burning wool and smoke, the twine used in binding the wool, which appeared to be burned, the charred wool and ashes found in the room, and the consumption of about 15,000 pounds of wool. All this, taken together, tended to show chemical action resulting in fire, and is sufficient to take the case to the jury and support the verdict which was given.
There was nothing substantial in objections to the rulings on testimony nor in the criticism of instructions. The j udgment is. affirmed.
Johnston, C. J., Greene, Burch, Mason, Graves, JJ., concurring.
Smith, Porter, JJ., dissenting. | [
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The opinion of the court was delivered by
Benson, J.:
Amos R. Jessup, sheriff of Finney county, levied upon a locomobile, as the property of R. E. Gray, under an execution issued out of the district court in an action wherein Emily M. Gray was plaintiff and R. E. Gray was defendant. Dennis D. Doty thereupon replevied the locomobile in an action wherein he alleged that he was the owner and entitled to the possession of the property. The sheriff and Emily M. Gray filed an answer. More than two years after the commencement of the action the plaintiff was allowed to file an amended petition and affidavit in replevin, in which he set up a special ownership in the property instead of a general ownership, as first alleged. Answers were filed to the amended petition, and the cause continued until the next term, at which time, the action having been dismissed as against the sheriff, the defendant, Emily M. Gray, moved for judgment in her favor and for a return of the property, upon the grounds That under the original petition Doty claimed the property as owner and by his amended petition admitted that he was not the owner, and that the claim upon which he secured possession was not true. This motion was denied. The cause was then tried upon the amended petition, resulting in findings and a judgment for the plaintiff, Doty. The defendant, Emily M. Gray, brings the case here.
The amended petition averred that the plaintiff was in the possession of the property under a pledge thereof, made by R. E. Gray to secure.the payment of $731 loaned by the plaintiff to R. E. Gray for the purchase of the locomobile, and used for that purpose. The real question to be tried was whether the plaintiff held the possession of the property in good faith as such pledgee at the time of the levy thereon. The abstract does not show any exception to the order allowing the amended petition to be filed, and the first ruling complained of to which an exception was taken is the order denying the motion for judgment, based on the alleged departure in the amended petition from the case presented in the original petition. It was within the discretion of the court to allow the -amended petition to be filed (Kennett v. Peters, 54 Kan. 119, 37 Pac. 999, 45 Am. St. Rep. 274), and certainly no complaint can be properly made of that order, in the absence of any exception or any motion to strike the pleading from the files. An answer was duly filed setting up the defendant’s claim under the levy upon the execution. Issue having been thus joined upon the claim of the plaintiff as pledgee in possession and of the defendant under the execution, there was no error in overruling the defendant’s motion for judgment.
Objection was made to the introduction of any evidence under the petition, on the ground that the amended petition wás filed more than two years after the levy of the execution. As the suit was commenced in due time, this objection was properly overruled.
Error is also predicated upon the refusal of the court to give instructions requested by the defendant. Twenty-one separate instructions were' presented. Many of these were fairly included in the instructions given by the court, and those that were not so included were properly refused. The instructions given clearly stated the issues and the rules of law applicable thereto. The rules pertaining to the rights of a pledgee were accurately given. The jury were informed that the main question for consideration was whether R. E. Gray pledged the locomobile to the plaintiff, Doty, and whether it was so held by him as pledgee at the time of the levy. The court instructed the jury concerning a pledge as follows:
“You are instructed that a plédge is defined to be a deposit of personal property as security for a debt, to be kept by the creditor until default or until the debt is discharged. And to constitute a pledge there' must be an actual delivery of possession to the pledgee, and to preserve this pledge he must retain possession. An actual delivery of the property to the pledgee is essential.”
This was correct. (Raper v. Harrison, 37 Kan. 243, 15 Pac. 219.) Instructions were also given to the effect that good faith was essential 'to support a pledge, and that the burden was upon the plaintiff to show that the property was delivered to him in good faith-prior to the levy and upon sufficient consideration, as claimed, and the rights of the defendant as an execution creditor were carefully presented in the instructions given.
Special findings were returned in answer to ques tions presented by both parties.. The defendant moved for judgment on these findings, and the denying of this motion is also alleged as, error. From these findings it appears that R. E. Gray purchased the locomobilé in Chicago; that upon its delivery in Garden City the possession-was turned over to Mr. Doty, who remained in the actual and continuous possession thereof until it was taken from him by the sheriff under the execution; that R. E. Gray became the owner of the locomobile when he so purchased it; and that it was so placed in the possession of Doty as security for the payment of $625 owing by Gray to Doty, which had not been paid. There was no error in denying the motion for judgment on these findings. The jury having thus found the issues in favor of the plaintiff upon the evidence, under proper instructions, the general verdict in his favor in harmony with the special findings, approved by the trial court, cannot be set aside merely because there was some conflicting evidence as to the possession of the property for a part of the time. An examination of all the evidence satisfies us that it is sufficient to sustain the findings and verdict.
Errors are complained of in overruling challenges of jurors, in rulings upon the admission of testimony, in refusing to set aside certain special findings, and in various minor matters, but upon examining thé record we are satisfied that no error was committed affecting the substantial rights of the defendant. (Hopkinson v. Conley, 75 Kan. 65, 88 Pac. 549; Snider v. Windsor, ante p. 67.)
The judgment is affirmed.- | [
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Per Curiam:
There is neither a case-made nor a certified transcript of the record presented in this case. The motion of the defendants in error is allowed and the action is dismissed. | [
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Per Curiam:
This is an original action in quo warranto, brought by A. J. Hudson, who was a candidate for councilman of the city of Chanute, against C. E. Conklin, another candidate for the same office, who received a majority of the votes cast and is in possession of the office. The ground of contest is that Conklin was ineligible . to accept or hold the office because he was not an owner of real estate within the city, but the ineligibility of' Conklin, if it exists, does not give a minority candidate any claim to the office. (Wood v. Bartling, Mayor, 16 Kan. 109; Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 801.) Since it is conceded that Hudson has no title to the office, he has no interest, personal or peculiar to himself, which warrants him in challenging the right of the incumbent to hold the office. Having no interest which differs from other members of the general public, he must leave the maintenance of the action, if there be grounds for one, to some one authorized to appear for and represent the general public.
The proceeding is therefore dismissed. | [
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Per Curiam:
J. C. Hopper commenced this action in the district court of Ness county to recover upon a promissory, note made by J. G. Arnold and Clara B. Arnold, who were husband and wife. The husband signed the wife’s name to the note. Afterward he abandoned her and left the state. She alone was served with summons in the suit. She denied the execution of the note under oath. To avoid this answer the plaintiff filed a reply which reads:
“(2) Specially replying to the second count of said answer, he avers that prior to the time of the execution and delivery of the note sued on herein, to wit, about the month of November, 1900, the defendant, Clara B. Arnold, for the purpose of inducing the plaintiff thereafter tó accept notes with her name signed thereto by her husband, J. G. Arnold, and for the purpose of giving the plaintiff to know and understand that her husband had authority to sign her name to promissory notes,, stated and declared to plaintiff that her said husband had authority to sign her name to said notes and that thereafter any notes with her name so signed and delivered to plaintiff she would honor and treat as her note as fully as if she had signed the same in person; and plaintiff avers that thereafter J. G. Arnold, husband of the defendant, Clara B. Arnold,' did execute and deliver to plaintiff a promissory note so signed with his own name and the name of his wife, and his wife recognized and honored the same as her note and obligation without objections, thereby as well as by her statements and declarations aforesaid causing plaintiff to believe,that her husband had authority to sign her name -to promissory notes given to plaintiff; and plaintiff says that at no time subsequent to the making of said statement of defendant Clara B. Arnold, and prior to the execution and delivery of the note in suit, did plaintiff have any knowledge or information of any kind that the said defendant, Clara B. Arnold, would not honor notes given to plaintiff so signed, nor did he have any knowledge or information that the defendant J. G. Arnold had no authority to sign his wife’s name to notes given to plaintiff, and plaintiff avers that by reason of said statement of Clara B. Arnold and of her subsequently honoring a promissory note so signed and delivered to plaintiff he believed that her husband was by her authorized to sign such notes and so believing he accepted the note in suit so signed.”
The court on the trial made findings of fact and conclusions of law which read:
“findings of fact.
“I find the facts to be that the name of Clara B. Arnold was signed to the note in controversy by J. G. Arnold.
“That before the execution of said note the defendant Clara B. Arnold had said to J. C. Hopper in substance that he might treat as signed by' her any notes to which her name was signed by J. G. Arnold, which authority had never been revoked.
“CONCLUSION OF LAW.
“I conclude that such statement by defendant was sufficient in law to render her liable upon the note .sued on.”
A judgment was entered against Clara B. Arnold for the face of the note, with interest.
The findings are challenged on the ground that they are not sustained by the evidence. There was a sharp and decided conflict between the witnesses, and we see no reason to depart from the rule that this court will be bound by findings of fact found under such circumstances.
It was- suggested in the argument that the statement made by the plaintiff in error to the defendant in error, not being in .writing, was in violation of the statute of frauds and void. An examination of it, however, will show that it does not amount to a contract or promise on her part to do or perform anything, but is merely a declaration that J. G. Arnold, her husband, was authorized to execute promissory notes in her name. This is the real purport of the statement made by her, and the defendant in error relied thereon when he accepted the notes so executed. The statute of frauds does not therefore apply.
The judgment .is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
The jury, in answer to special questions, found that it was practicable to box, or safeguard, the machinery in question, that the company was negligent in failing to do so, and that such negligence was the proximate cause of the injury.
The defendant alleged error in the refusal of the court to sustain its demurrer to the evidence, in denying its motion for judgment, and in denying a new trial. It further insists that the negligence of the deceased directly contributed to the injuries from which he .died, and that the proximate cause of the injuries was such contributory negligence and not the unguarded machinery.
The mere fact that this young man was working in the presence of unguarded machinery and amid ob vious perils, plainly apparent to his senses, does not prove that his death was caused by his own want of care, but whether he- in fact exercised proper care for his own safety was a question for the jury, and could not be determined by the court unless the facts were such that reasonable minds would not differ with respect to his negligence. (Cummings v. Railroad Co., 68 Kan. 218, 74 Pac. 1104.)
The findings disclose the violation of a duty imposed by statute, and this is prima facie sufficient to establish liability for the injuries resulting therefrom. (Madison v. Clippinger, 74 Kan. 700, 88 Pac. 260; Fowler v. Enzenperger, ante, p. 406.) It is true -that contributory negligence is a defense where liability is claimed under this statute. (Madison v. Clippinger, supra.) This, however, is an affirmative defense (Railway Co. v. Lee, 66 Kan. 806, 72 Pac. 266), and the verdict failed to establish it in this case.
The defendant also complains of the refusal of the court to instruct the jury to the effect that it was the duty of the deceased to make use of his senses to discover the dangers about him, and to exercise reasonable care to keep away from the shaft, and that, failing to do so, he could not recover. On this- subject the court gave the following instruction:
“I have just indicated to you in general terms that, if the evidence discloses that the deceased was himself guilty of ordinary negligence contributing to his own death, then the defendant is not liable in this action. On that head you are further instructed generally that it was the duty of the deceased to exercise ordinary care and prudence while working in the brick-plant for his own safety and protection, and if he failed to do so, and consequently was killed, then the defendant is not liable, and that is so regardless of the question as to whether the machinery of the defendant should have been safeguarded, as heretofore indicated in these instructions, or not. The court cannot say to you as a matter of law whether in anything the deceased may have done, or failed to do, in his acts and conduct connected with his death, he was, or was not, guilty of ordinary negligence, but that is a question of fact, and solely for your determination.”
This was a fair statement of the rule, and we think sufficient.
The defendant asked the court to instruct the jury that the deceased assumed the risk of dangers from unguarded machinery open and obvious to his senses. This was refused, and an instruction was given to the effect that assumption of risk was not a defense in such cases. This was in accordance with the decisions of this court, and is the correct rule. (Manufacturing Co. v. Bloom, 76 Kan. 127, 90 Pac. 821, 11 L. R. A., n. s., 225.)
Complaint is also made of the refusal of the court to submit various special questions designed to show the knowledge of the deceased of the condition and operation of the unguarded machinery. There was no question of the knowledge of the deceased of these conditions — they were open and obvious, and he was in the enjoyment of the ordinary faculties. These facts must be considered as admitted, and special findings thereon were unnecessary; still, as he did not assume these risks, the fact that they were so known and apparent did not bar a recovery, if the deceased was not wanting in proper care in the situation in which he was placed. The defendant asked this question:
“Were any of the employees of the defendant guilty of negligence which contributed to, or was, the approximate cause of the injury to the deceased?”
The court changed it thus:
“Was the defendant guilty of negligence which contributed to, or was, the approximate cause of the injury to the deceased?”
This was a proper correction. The statute imposed the duty upon the corporation to safeguard its machinery, and the failure to do so was the fault of the corporation itself. It was not claimed that the machinery was guarded in any way, but that it was not practicable to do so. It was therefore immaterial what officer or officers or employees were responsible for the neglect. It is argued that this shaft and its pulleys and belts, although unguarded, were not dangerous to this employee while in the discharge of the particular duties devolving upon him; that no duty required his approach to the machinery near epough to become entangled in or caught by it. This, however, was a question of fact exclusively. His work was in the presence of this swiftly revolving shaft, with three pulleys and belts within five feet. In this situation he was required to reach over or above the shaft, or near to it, to thrust his stick into the mass to keep it moving in the spout, then to turn to the mixers close by, and so, attending to the spout and the mixers, give such heed to all his duties as would keep the work in progress without obstruction. In some way, the precise details of which are unknown, he came into contact with the machinery, and lost his life. In the absence of any finding by the jury of negligence on -his part the general verdict, having been approved by the trial court upon sufficient evidence, must be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sued the defendant to recover the proceeds of a protested bank check for the sum of $500, drawn upon her account by her husband, Fred Windhorst. The petition alleged that defendant’s husband was her agent, duly authorized to sign her name to checks on the bank, and generally to conduct the business of defendant with the bank as fully as she herself might do. It also alleged that the defendant, by her agent, for a valuable consideration, delivered the check in question for the use of the plaintiff, and that afterward the same was presented and payment refused.
The controlling question raised is upon a ruling of the court in the introduction of evidence. Plaintiff proved by the cashier of the bank that the canceled checks drawn on defendant’s account had been returned to her. Defendant herself was then called to the stand, and she was asked the following question:
“Ques. What I want to know is, where are the checks, if any, that your husband signed your name to against your account? Have’you got them? [Objected to unless pertaining to this particular check.]
“By the Court: T will sustain the objection. This is preliminary, but just as well sustain it here as later on. That question becomes immaterial except to such checks as relate to this transaction.’ ”
The husband, Fred Windhorst, was then called as a witness by the plaintiff, and he was asked if he ever signed his wife’s name to bank checks. The court sustained an objection interposed on the same ground as before. The cashier of the bank, having been recalled, testified that he personally paid checks drawn on the account of defendant; but when asked to state whether or not the husband of defendant signed her name to-checks drawn against her account, and whether he did so frequently or otherwise, a similar objection was sustained. Proper exceptions were saved to the rulings of' the court.
We think the court erred in refusing to permit plaintiff to prove that the husband had signed his wife’s name to checks drawn upon her account, with her knowledge and consent. The issue was whether the husband was the general agent of his wife for that purpose. Agency may always be proved by circumstantial evidence. And the rule is well established that in transactions which relate to trade and commerce it may be proved or inferred from evidence of the habits and course of dealing between the parties. It is said in volume 3 of Elliott on Evidence, section 1635;
“Proof that the principal permitted the supposed agent to perform similar acts and transactions with other persons is competent as tending to establish the existence of an agency.”
Mr. Wigmorein his work on Evidence (vol. 1, §'377) says that the use of such evidence for proving the authorization of an agent has always been sanctioned; and that where the question is as to the authority of an agent, and the transaction “has taken the form of a usual and fixed course of business between two persons, this habit is admissible to indicate the probable tenor of a particular transaction.” (Vol. 1, § 94.)
Upon an issue as to the implied authority of an agent to exercise powers in excess of those expressly given him it was said, in Wheeler v. McGuire, Scoggins & Co., 86 Ala. 398, 5 South. 190, 2 L. R. A. 808, that “all the circumstances of the transaction, the previous conduct of the defendant, and the usages of the business, may be properly considered” (p. 404), and it' was held that any evidence is relevant which shows prior similar acts of the supposed agent and which tends to prove or disprove the knowledge of the alleged principal. In Sanborn v. Cole, 63 Vt. 590, 22 Atl. 716, 14 L. R. A. 208, it was held that testimony that a wife did all vf her husband’s business is admissible upon the question of her agency in a particular transaction within that time. The general rule is stated in volume 1 of the American and English Encyclopaedia of Law, at pages 959 and 961, as follows:
“In a great proportion of cases agency arises, not from the use of express language nor from the existence of a well-defined relation, but from the general conduct of the parties. Where, one person holds another out as his agent with certain authority he is liable for his acts on the ground of estoppel, whether he actually intends to be bound or not. . . . While agency may be im plied from a single transaction it is more readily inferable from a course of dealing.”
So, in Weaver v. Ogletree et al., 39 Ga. 586, it was held that an agent who had been in the habit of indorsing notes with his principal’s name, with the knowledge and consent of the principal, will be presumed to have that authority. And the rule is well settled that agency may be inferred from a series of transactions. In Watkins v. Vince, 2 Stark. (Eng.) 324, it was held:
“Evidence that the son of the defendant, a minor, has in three or four instances signed bills of’exchange for his father, is sufficient, in an action against the father on a guarantee, to warrant the reading of an instrument, purporting to be a guarantee by the father in the handwriting of the son.” (Syllabus.)
(To the same effect see Lovell v. Williams, 125 Mass. 439; 3 Ell. Ev. § 1633, and cases cited; Mech. Agency, §§ 84-86.)
The doctrine is likewise well established that a person may be estopped from denying the agency of another where he has held the other out as his agent and induced the public to believe that the relation of principal and agent existed. The doctrine is stated in the following language in volume 2 of the fourteenth edition of Kent’s Comjnentaries, at page *615:
“So, where a broker had usually signed policies of insurance for another person, or an agent was in the habit of drawing bills on another, the authority was implied from the fact that the principal had assumed and ratified the acts; and he was held bound by a repetition of such acts, where there was no proof of notice of any revocation of the power, or of collusion between a'third party and the agent.”
Suppose the plaintiff could establish by evidence that all of the checks drawn upon defendant’s bank account previous to the transaction in question had been signed by the husband with her knowledge and consent: it could hardly be said that this would not tend to prove general authority of the husband to sign checks or that plaintiff should be restricted in his proof to evidence showing authority to sign the particular check. One of the reasons urged for the exclusion of the testimony is that the pleadings show that the transaction for which the check was given was one in which the husband alone was interested, but the purpose for which the check was to be used is not controlling. The theory of the plaintiff was that the husband had general authority to sign defendant’s name to checks for his own as well as for her business. It is to be observed that the question is not whether the offered instances fully prove the agency, but merely whether they should be received as having probative value. In this respect the value of the evidence depends upon circumstances, like the proof of any habit or custom. It was said by Lord Chief Justice Ellenborough that “one act undisturbed does not make a custom, but it will be evidence of a custom.” (Roe v. Jeffery, 2 Maule & S. [Eng.] 92, 93.)
Some of the questions to which objections were sustained were preliminary in their nature, but they showed the purpose for which they were asked. A party is not required to prove all the material facts upon which he relies by á single witness or to embrace all the issues in a single question. The witness may be unfriendly and yet the party may call him to prove one of several relevant facts. In this case the plaintiff was not required to prove by the defendant that she authorized her husband to sign her name or that she had acquiesced in what he had done, but the purpose of the question was clearly to show that certain checks had been destroyed, in order to lay a foundation for secondary evidence. The other questions were competent for the purpose of establishing the authority of the husband generally to sign checks upon her account.
The judgment is reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiffs brought suit to remove a cloud from, and to quiet, their title to a tract of land. The defendants answered claiming full title, which they prayed might be established by decree of the court. Judgment was rendered for the plaintiffs, and the defendants prosecute error, claiming the judgment is contrary to law.
The controlling facts are not disputed. J. U. Brown, desiring to purchase the land in controversy, caused the records to be examined, and the result of the search was laid before him in the form of an abstract of title. The-abstract disclosed title in Harry D. .Endress, by warranty deed to him, recorded January 5, 1895, unless such title were cut off by a tax deed dated September 25, 1902, issued to G. O. and B. V. Pearson and recorded November 14, 1902. Endress resided in Montgomery county, Ohio, where he had lived for many years. Brown wrote to Endress advising him that a tax deed of the land had been executed and asking him what he would take for it. Endress replied referring to the land as “my land” and stated a price. Brown made a counter-offer, which was accepted, and on December 7, 1903, received a quitclaim deed of the land, which was duly recorded on December 13, 1903. The deed was taken for convenience in the name of E. H. Brown, wife of J. U. Brown. It recited a consideration of $50, which Brown paid and which he believed to be a substantial price for the land.
On February 6, 1904, Brown obtained from the Pear-sons a quitclaim deed of the land, which .he recorded on February 10, 1904. Brown acted in good fáith in both transactions; he had no knowledge of any outstanding title and no knowledge of any. claim upon the land by third persons. There is no claim that the records supplied any information which the abstract did not disclose, or that any one was in possession or control of the land to whom inquiries might have been addressed or from whom information might have been obtained relating to outstanding titles.
In December, 1895, Endress executed a warranty deed of the land, blank as to the grantee, and left it with one W. James to be disposed of. This deed came to record September 24,1904, with the name W. S. Robinson appearing as grantee. When this deed was executed Endress did not know to whom it would go, and when his quitclaim deed to Brown was executed he did not know what had become of it. On May 7, 1903, the Pearsons executed a quitclaim deed to Robinson, which was recorded on September 24, 1904. After Brown’s deeds were recorded the defendants acquired the Robinson title by warranty deed.
The question is, Was Brown an innocent purchaser? The leading cases decided by this court involving the question of the innocent character of a purchaser by quitclaim deed are Johnson v. Williams, 37 Kan. 179, 14 Pac. 537, 1 Am. St. Rep. 243; Goddard v. Donaha, 42 Kan. 754, 22 Pac. 708; Merrill v. Hutchinson, 45 Kan. 59, 25 Pac. 215, 23 Am. St. Rep. 713; Smith v. Rudd, 48 Kan. 296, 29 Pac. 310; and Fountain v. Kenney, 71 Kan. 642, 81 Pac. 179. A purchaser of real estate who accepts a quitclaim deed does not take title subject to all outstanding titles, equities and claims. (Fountain v. Kenney, supra.) The statement to the contrary by Commissioner Clogston in the case of Harris v. Pratt, 37 Kan. 316, 320, 15 Pac. 216, is incorrect. As the opinion in Johnson v. Williams, supra, anticipated, a purchaser holding by quitclaim deed only may be a purchaser in good faith as against latent, hidden or secret equities undiscoverable by the exercise of ordinary and reasonable diligence, and under the registry laws such a purchaser may hold title in good faith as against prior unrecorded deeds concerning which he had no notice and no reasonable means of obtaining notice. If such a purchaser act in good faith, pay a valuable consideration, and have no actual notice, he will take title subject only to those rights which are discoverable through an investigation of the various public records and by the exercise of reasonable diligence in making proper examinations and inquiries'. (Merrill v. Hutchinson, 45 Kan. 59, 25 Pac. 215, 23 Am. St. Rep. 713.) Of course, notice must be taken of the claims of persons ostensibly interested. (Smith v. Rudd, 48 Kan. 296, 29 Pac. 310.)
With no one apparently claiming the land adversely to Endress or the Pearsons, with no indication furnished by the land itself that any other person claimed it, and with nothing upon the records leading to the supposition that others might be interested in it, what information concerning the Robinson title was obtainable by Brown and what did reasonable diligence on his part require? It is plain that Brown had no way of learning of the unrecorded deeds except through his grantors. If Endress had been asked to expose his own lack of title he could not have uncovered Robinson, because he did not know what had become of the blank deed. He might have suggested the name of James and James might have been hunted up. But ■Endress lived in a remote state, in the preliminary negotiations he referred to the land as his own, his evident purpose was to convey full title except as it might be affected by the tax deed, and it was not reasonable to expect him to assume the burden of the covenants usual to conveyances of real estate when a tax deed was outstanding which might prove to be sufficient to cut off all his rights. If the Pearsons had been interrogated they might have said they had nothing to sell because they had already deeded to Robinson, but it was not reasonable to expect that they would warrant a tax title. Therefore Brown had abundant reason not* to inquire of either Endress or the Pear-sons why they were unwilling to give deeds in the ordinary form. While the quitclaim deeds suggested that the grantors doubted their respective titles, the patent facts furnished a ready explanation for such doubts which any prudent business man might safely accept, and it is impossible to say Brown was lacking in diligence because he did not catechise his grantors respecting .their estates in the land.
In addition to the foregoing, it must be noted that a purchaser taking title by quitclaim deed may be a purchaser in good faith without cross-examining his grantor in order to obtain a disclosure of defects in the title when the grantor on the face of the record appears to have an interest to convey. The. tender of a quitclaim deed in such a case merely opens the eyes of the purchaser and directs his attention outward and elsewhere for facts and for clues in derogation of the apparent title.
Assuming for the sake of illustration, but not implying, that the Pearsons acted purposely and not forgetfully, their conduct would offend the sense of right. They would be in the attitude of taking Brown’s money without intending to give anything in return, or else they would be in the attitude of deliberately empowering Brown to take away from Robinson that for which Robinson had paid them. But since Robinson had left them with an apparent title of record to convey, Brown, acting otherwise in good faith, could take it for granted they were dealing fairly and in respect to the title disclosed by the record. There being no suggestion that Brown might have extended his inquiries in other directions, he was a bona fide purchaser although his deeds are quitclaims, and they must prevail over the unrecorded instruments of his adversaries.
All the parties having taken advantage of the opportunity to try out their titles the form of thé action is no longer of consequence, and the question raised respecting proof of possession is not now material.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The firm of Sinclair & Wallace shipped a car-load of stock from Kincaid, Kan., to Kansas City, Mo., over plaintiff in error’s road. Transportation to Kansas City was furnished one of the firm, who accompanied the stock, but the railway company refused his request for free passage back to Kincaid and he was obliged to pay his return fare. The firm then brought this action, under chapter 354 of the Laws of 1905, to recover double the fare paid and an attorney’s fee. The action was begun in a justice court and transferred to the district court, where it was tried to a jury. Plaintiffs recovered judgment for $5.10, and $35 attorney’s fee. The railway company brings error.
Plaintiffs’ bill of particulars alleged that the stock was shipped from Kincaid to Kansas City, Mo., and that the demand was for return transportation between these places. Plaintiffs’ proof established both allegations. Defendant demurred to the evidence, but the demurrer was overruled. A peremptory instruction to find for defendant was also refused, and the jury were instructed in substance that, if they found the facts to be true as alleged, then under the law plaintiffs were entitled to recover. All of these rulings were erroneous. Under the claim as set out in the bill of particulars and as proved the shipment was interstate. The exact question, except that it arose under the statute of 1897 which contained substantially the same provisions, was decided in The State v. Otis, 60 Kan. 248, 56 Pac. 14, and the point is ruled by the decision in that case. It was there said:
“Assuming, but not deciding, that the law is valid as a regulation of shipments between points in Kansas, it certainly is without effect as to shipments from one state to another.”
The act under consideration in the present case relates to the transportation by railroad companies of shipments of live stock, and provides penalties for the violation thereof. (Laws 1905, ch. 854.) It requires any railroad company doing business within the limits of the state, and shipping any live stock by the car-load, to furnish the shipper or his employee transportation to the point of destination on the train in which the stock is shipped and back again to point of shipment on passenger-trains, free of expense to the shipper.
The validity of the act is assailed by defendant on numerous grounds which we deem it unnecessary to consider, for the reason that, like the act of 1897, it could not apply to, and does not purport to affect, the conduct of railroad companies in shipments of live stock from a place within to a place without the state —shipments which are interstate in character.
Plaintiffs in their brief and on the oral argument make two suggestions: that the shipment was not interstate, because the stock was actually unloaded at the stock-yards in Kansas City, Kan., and the written contract gave the destination as Kansas City, without mentioning the state; also, that the company agreed in the written contract to furnis'h free passage from point of destination to point of origin, and is bound thereby. These contentions are without merit, and appear to be urged here for the first time. The bill of particulars alleged, the proof established and thé instructions to the jury were predicated squarely upon the claim that the shipment was from Kincaid to Kansas City, Mo.; that the demand was for return transportation from there; and that the fare was paid at Kansas City, Mo., for return from there to Kincaid. Besides, and this is a complete answer to both contentions, the action as brought is purely statutory and seeks to recover the penalty provided therein. The judgment for attorney’s fees and double the amount of fare paid could not have been recovered in an action based upon the contract.
As the judgment should have been for defendant, the cause is reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Benson, J.:
The question to be' determined is whether chapter 115 of the Laws of 1907,. relating to parks and boulevards in cities having a population of more than 50,000, is a valid law sufficient to authorize a tax for a general park fund. The park commissioners of Kansas City, Kan., levied a tax of one-half of a mill on the dollar, under section 9 of that act, to create a general park fund, and the plaintiffs, property owners and taxpayers of such city, sought to enjoin the enforcement of this levy. A demurrer to the answer having been overruled, the plaintiffs seek to have that ruling reversed.
The act provides for the appointment by the mayor, without confirmation, of a board of park commissioners composed of three freeholders, residents of the city, to serve for two, four and six years, respectively, their successors to be appointed for six years. This board is authorized to appoint a clerk, and to employ and discharge engineers, surveyors, attorneys, agents and servants, and to make by-laws. Two members constitute a quorum. It is to make annual reports to the city council; adopt a seal; in the name of the city prosecute and defend suits; create and provide for the payment of debts; draw warrants on the city treasurer; purchase, sell and convey property; make contracts; issue bonds; levy taxes and special assessments; and do all other acts proper or necessary to carry out the provisions of the act, subject to the limitations therein. It may levy taxes, not exceeding one-half of a mill on the dollar, on the taxable property in the city for a general park fund, and the same amount upon the property in any park district for a district fund. It is to devise a system of parks, parkways and boulevards; to select routes and streets for boulevards and parkways, and cause the same to be opened, widened, improved, and maintained, and to acquire land therefor by purchase or condemnation; and to manage and control such parks, parkways and boulevards. It may issue the bonds of the city, to be paid by a tax on all the property within the city, or within a. park district, as it shall determine, and sell the same. If any issue of bonds or any debt created by the board exceed $5000, the resolution therefor shall be subject to the veto of the city council by vote of two-thirds of all the members thereof. Bonds in excess of $75,000 cannot be issued in any one year, and the amount of bonds cannot, at any time, exceed five per cent, of the assessed value of the taxable property. The bonds and interest thereon are to be paid by taxes levied by such board upon the property of the city or district. It has the power to grade and pave boulevards, to build and repair sidewalks, improve sidewalk spaces and plant trees along the same, and issue bonds and levy assessments therefor. It may, with the approval of the mayor and council, declare any street or part of a street in the city a boulevard or parkway. The act contains regulations to govern the board in carrying out the foregoing and many other provisions.
The petition alleges that the board is proceeding under section 9 of the act to levy a half-mill tax on all property in the city, and this the plaintiffs seek to enjoin. Section 9 is as follows:
“The board of park commissioners of any city are authorized to levy, by resolution of said board, an annual tax on all the taxable property of the city of not to exceed one-half mill on the dollar to create a general park fund to be used by them in carrying out the provisions of this act, and to certify said levy to the county clerk and have the same placed upon the tax-roll and collected as other taxes.” (Laws 1907, ch. 115.)
The provision that the commissioners shall hold their offices for six years is in violation of section 2 of article 15 of the constitution. (Gen. Stat. 1901, § 228.) The term of office by the act being unconstitutional, the tenure thereof is not declared, and the office is held subject to the appointing power. (Lewis v. Lewelling, 53 Kan. 201, 36 Pac. 351, 23 L. R. A. 510.) This invalid provision does not therefore make the whole act void.
The claims of the plaintiffs, briefly stated,' are that the act is void because the legislature had no authority to delegate to the park commissioners the power to incur indebtedness and levy taxes; that all legislative power is vested in the legislature, and cannot, in the absence of an express provision óf the constitution, be delegated, except to public municipalities; that this exception rests upon an implied authority, and that the power so delegated can be exercised only by the elective governing body of the municipality. From these propositions is deduced the conclusion that the act giving these powers to the park board is void, unless there is some express constitutional provision authorizing such delegation of power, and that the onus of pointing out such provision is upon the defendants.
The claims of the defendants may be thus summarized: All legislative power is vested in the house of representatives and senate — the legislature. All legislative power having been thus given, none was reserved, except as stated in express provisions of the constitution specifying such limitations or in the federal constitution concerning subjects delegated by the people to the congress. The deduction from this statement is made that the legislative act in question is valid, unless the plaintiffs can specify some express provision of the constitution violated by its terms.
These respective challenges — of the plaintiffs to produce express constitutional warrant for the law, and of the defendants to point out the constitutional provision violated by it — would be relatively unimportant if they were mere exhibitions of strategy in argument, but they go deeper and rest upon a fundamental differ ence in constitutional interpretation. The plaintiffs claim that, notwithstanding the grant of power to the legislature, limitations must be implied upon that power beyond the express restrictions of the state and federal constitutions, growing out of the essential nature of free government, and that among these reserved or retained rights is the right of the electors to choose those to -whom' they will entrust the power to create debts and levy taxes to pay them. The defendants reject all reservations not found in the constitution, state or federal, and all restrictions upon legislative power except such inhibitions as arise by necessary implication from some express provision of the constitution itself. The arguments fairly present these conflicting views, which will now be considered, and first with reference to our own decisions.
In Hines and others v. The City of Leavenworth and others, 3 Kan. 186, it was declared:
“Article 12 of the constitution treats of corporations. Its various sections are not grants of power to the legislature, but were intended to regulate with reference to corporations the exercise of the general legislative power conferred by a preceding article. . . . Section 5 of article 12 is as follows:
“ ‘Provision shall be made by general law for the organization of cities, towns and villages, and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so restricted as to prevent the abuse of such power.’
“This does not, nor was it intended to, confer upon .the legislature power to provide.for the creation of municipal corporations, but was intended to regulate the exercise of that power as conferred in the general grant of power.” (Pages 198, 199.)
In the same opinion the court said:
“When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It' is a subject wholly under the con trol of the political department of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final.” (Page 204.)
This view was approved in City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486, and Belleville v. Wells, 74 Kan. 823, 88 Pac. 47. In Atchison v. Bartholow, 4 Kan. 124, it was again held that section 5 of article 12 of the constitution was not a grant of power but a restriction upon the powers already granted. The court said :
“The whole of this article is merely restrictive of the general power conferred by section 1 of article 2. It adds nothing to the power of the legislature, nor could it have been so intended. All legislative power upon the subject had already been conferred. It may be true that the legislature,' in exercising the power, might have done precisely what this clause requires of it, had it been omitted; but it seems to have been thought expedient to compulsorily restrain its action, and such alone was manifestly the intention of this article.” (Page 144.)
Concerning implied restrictions upon legislative powers it was held in Prouty v. Stover, Lieut. Governor, 11 Kan. 235:
“Constitutional inhibitions need not always be express. They are equally. effective when they arise by implication. To create an implied inhibition there must be some express affirmative provision. The mere silence of the constitution creates no prohibition. To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than necessary to give full force to the provision.” (Syllabus.)
This was followed in In re Holcomb, Petitioner, &c., 21 Kan. 628. In The State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177, an act providing for the appointment of police commissioners in cities of the first class by the executive council was held valid. This act gave to the commissioners so chosen the power to appoint the police judge, marshal and other police officers, and gave the board the power to organize, govern and discipline the police force of such cities, as well as the control and management of the property of the police departments. The court said:
“The point has been made, though not much contended for, that police government by commission is illegal. In effect, it is said to be opposed to the fundamental theory of self-government, and denies to the people of the district the right to select their own officers from among their own number. Whatever may be said regarding the policy of placing the police administration of cities in a board of police commissioners who are chosen by state officers rather than through the electors of the cities, there can be no doubt that the legislature has the power to do so. The constitution imposes no limitations upon the legislature in respect to the agencies 'through which the police power of the state shall be exercised. It may be conferred upon the officers of local municipalities chosen by the people resident therein, or, if deemed expedient, it may be vested in officers or persons otherwise selected. Cities are but agencies of the state, created to aid in the conduct of public affairs. The functions of cities and their officers are prescribed by the legislature, and it rests in the sovereign discretion of that body to say how much of the police power shall' be exerted by the municipality. Although such power is usually exercised by the local authorities, police administration is not in its nature exclusively local. The people of the whole state are interested in preserving peace and good order and preventing crime in every city and district of the state, and in protecting the property, health and lives of all its citizens. ... A clear and well-recognized distinction exists between these matters which concern the state at large, and those which are of a purely local and corporate character. In pointing out this distinction, Judge Dillon says that ‘the administration of justice, the preservation of the public peace, and the like, although confided to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws proper, the establishment of gas-works, of water-works, the construction of sewers, and the like, are matters which pertain to the municipality as distinguished from the state at large.’ (1 Dill. Mun. Corp. 58.) ” (Pages 581, 582.)
With reference to the claim that the act involved the delegation of legislative power, it was said:
“The constitution confers the lawmaking power upon the house of representatives and the senate, and the power thus vested cannot be surrendered to any other body or person, except as to local administrative legislation, which all agree may be delegated to corporations and tribunals transacting the county business.” (Page 583.)
In City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616, it was held that the power given to the legislature by section 21 of article 2 of the constitution (Gen. Stat. 1901, § 139) to confer power of local legislation upon tribunals transacting county business was not exclusive, but that such powers might be conferred on “other local agencies,” and the power of the mayor and council to extend the boundaries of the city, in the manner provided by the act in question, was upheld.
Concerning the authority of the legislature over streets and public grounds in cities Mr. Chief Justice Johnston, in La Harpe v. Gas Co., 69 Kan, 97, 76 Pac. 448, said:
“In the control of the streets and highways the power of the legislature is supreme and unlimited, except so far as it may be restricted by constitutional provisions. The general statutes relating to the government of cities generally place the power to lay out and improve streets and public grounds, and to regulate their use, in municipal officers, but that is a power which the state may exercise either directly or through, one of its agencies. In placing the control of streets and public grounds in cities, the legislature surrendered none of its own power, nor did it vest any rights in such cities as against the public. A city is a creation of the legislature — a subordinate agency of the state, which exercises only such power as the legislature confers, and for such period of time as the legislature in its discretion determines. The state gives, and the state can take away; and the legislature is at liberty to resume so much of the control of thé streets and alleys and public grounds formerly exercised by the city as it deems best, and this without obtaining the consent of either the officers or the inhabitants of the city.” (Page 103.)
That bonds may be issued by a county and taxes levied to pay them without any vote of the people, when such issue is authorized by the legislature, is settled by the decision in Riley v. Garfield Township, 58 Kan. 299, 49 Pac. 85. In the absence of any limitation in the constitution the. legislature has power to make laws and create agencies to carry them into effect. (The State v. Railway Co., 76 Kan. 467, 92 Pac. 606. See, also, The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431; The State v. Freeman, 61 Kan. 90, 58 Pac. 959, 47 L. R. A. 67; The State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. St. Rep. 343.)
We have not overlooked the case of Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, cited by plaintiffs. An act of the legislature directed the improvement of roads upon the petition of resident landowners within certain limits, ánd made it the duty of the county board to apportion two-thirds of the cost thereof among the tracts benefited ’ and cause assessments to be made thereon to pay the same; and the act was held invalid. Mr. Chief Justice Horton used the following language in the opinion:
“Here an important power, namely, that of causing public improvements, and of levying general taxes on all of the people, in addition to special assessments on a portion of them, to pay for such improvements, is conferred directly upon a class of persons, many of whom may not be electors. The petitioners are authorized, absolutely and arbitrarily, to fix the boundaries of the taxing district; the nature, extent and cost of the improvement to be made; and no officer or tribunal of the people has any discretion in this respect.” (Page 158.).
In this act the power is delegated to the cities (§ 1), to be exercised by park commissioners, who are declared to be public officers of the city (§ 8). It will be observed that in the Abbott case the question whether such a power could properly be delegated to municipali ties, to be carried into effect by such officers, was not considered.
In determining the validity of legislative acts the following propositions haye been held by this court: (1) Our constitution limits, rather than confers, power, and hence we look to it to see what it prohibits instead of what it' authorizes. (Sumner County v. Wellington, 66 Kan. 590, 72 Pac. 216, 60 L. R. A. 850, 97 Am. St. Rep. 396.) (2) To declare an act of the legislature unconstitutional some provision must be pointed out which, either in terms or by necessary implication, makes it so. (Riley v. Garfield Township, 58 Kan. 299, 49 Pac. 85.) (3) The judicial department should not interfere with the legislative conscience, unless there be a clear violation of some provision of the constitution. (Comm’rs of Linn Co. v. Snyder, 45 Kan. 636, 26 Pac. 21.) (4) No statute should be declared unconstitutional unless the infringement of the superior law is clear beyond substantial doubt. (Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416.)
The courts of other jurisdictions differ widely lipón the fundamental question involved, and their divergent views have been recently classified thus:
“ (1) Cases in which the power of the state over the municipality is asserted to be practically unlimited (except as to express constitutional restrictions), and in which, consequently, acts of state compulsion in affairs apparently purely local have been sustained.
“ (2) Cases in which the right of local self-govern-, ment is declared to be inherent in the local subdivisions; and in which, consequently, acts of state compulsion in matters purely local have been condemned.
“(3) Cases in which the right of local self-government is asserted; but in which the courts differ as to what are matters of purely local concern.” (Gray, Lim. Tax. Power & Pub. Indebt. § 638.)
The argument in support of the inherent independence of local government is attractive, appealing to. the struggle for liberty, and enlisting in its aid the doctrine that representation should accompany taxa tion. It is based on the proposition that there are certain underlying principles, not always expressed in written constitutions, which restrict and limit legislative power and guarantee to municipalities the rights and privileges usually expressed under the term “local self-government.” This view is stated with great vigor and learning by the supreme court of Michigan, in The People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103. After tracing the origin and stating the reasons upon which the doctrine of implied restrictions rests, and depicting the evil results to be anticipated by conceding to the legislature the power to give over the control of public works in a city to a board appointed by the legislature, the court said:
“But local government is matter of absolute right, and the state cannot take it away. It would be the boldest mockery to speak of a city as possessing municipal liberty where the state not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the people full control in their local aifairs, or no control at all.” (Page 108.)
In harmony with this view and sustaining this implied limitation upon legislative power are the opinions in State v. Mayor, Etc., of Des Moines, 103 Iowa, 76, 72 N. W. 639, 39 L. R. A. 285, 64 Am. St. Rep. 157; City of Lexington v. Thompson, 113 Ky. 540, 68 S. W. 477, 57 L. R. A. 775, 101 Am. St. Rep. 361; Reelfoot Lake Levee District v. Dawson, 97 Tenn. 151, 36 S. W. 1041, 34 L. R. A. 725; State, ex rel., v. Fox, 158 Ind. 126, 63 N. E. 19, 56 L. R. A. 893; Schultes v. Eberly, 82 Ala. 242, 2 South. 245; Vallelly v. Board of Park Com’rs (N. Dak. 1907), 111 N. W. 615; Blades v. Water Com’rs of Detroit, 122 Mich. 366, 81 N. W. 271.
The same rule was adopted in Nebraska in State v. Moores, 55 Neb. 480, 76 N. W. 175, 41 L. R. A. 624, but was soon afterward rejected by the same court in Redell v. Moores, 63 Neb. 219, 88 N. W. 243; 55 L. R. A. 740, 93 Am. St. Rep. 431.
This question was considered in'Texas, in passing upon the act of the legislature providing a commission plan of government for the city of Galveston. This plan has been widely considered and discussed. In brief, it provided that the entire control and government of the city and all its departments should be committed to five commissioner's, three to be appointed by the governor and two to'be elected by the voters of the city. The court of criminal appeals, in Ex Parte Lewis, 45 Tex. Crim. Rep. 1, 73 S. W. 811, held that the act was violative of the principle of local self-government, and void. During the same year, however, the supreme court of that state, in Brown v. City of Galveston, 97 Tex. 1, 75 S. W. 488, upheld the law as valid in' every respect, and held in effect that no right of local self-government, based on history or tradition, existed in a city, whereby the legislature was precluded from making the members of its governing body gubernatorial appointees. After referring to the constitutional provision vesting legislative power in the senate and house, the court said:
“ ‘The legislative power of this state’ means all of the power of the people which- may properly be exercised in the formation of laws against which there is no inhibition expressed or implied in the fundamental law. Since a municipal corporation cannot exist except by legislative authority, can have no officer which is not provided by its charter, and can exercise no power which* is not granted by the legislature, it follows that the creation of such corporations and every provision with regard to their organization is the exercise of legislative power which inheres in the whole people, but by the constitution is delegated to the legislature; therefore, it is within the power of the legislature to determine what form of government will be most beneficial to the public and to the people of a particular community.” (Page 15.)
The opinions in these Texas cases fairly state the differing views taken by various courts upon the subject.
In the act of the legislature of Tennessee repealing the charter of the city of Memphis, and providing for a taxing district and a government for the territory embraced within its former limits, it was provided:
“That the power to levy taxes of every description, and for any and every purpose whatever, is hereby taken away from said municipal corporations and each and every officer and representative thereof, and said taxing power lodged in the legislature of the state, and not elsewhere.” (Acts of Tenn. 1877, ch. 71, § 2.)
In passing upon this act Mr. Justice Field, in Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197, said:
“The right of the state to repeal the charter of Memphis cannot be questioned. Municipal corporations are mere instrumentalities of the state for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure. ... By the repeal the legislative powers previously possessed by the corporation of Memphis reverted to the state. A portion of them the state immediately vested in the new government of the taxing district, with many restrictions on the creation of indebtedness. A portion of them the state retained; it reserved to the legislature all power of taxation. It thus provided against future claims from the improvidence or recklessness of the new government. The power of the state to make this change of local government is incontrovertible.” (Page 511.)
In Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440, the same court said:
“A municipal corporation in the exercise of its duties is a department of the state. Its powers may be large or small; they may be increased or diminished from time to time at the pleasure of the state, or the state may itself directly exercise in any locality all the powers usually conferred upon such a corporation.
“The statement that a municipality acts only through its agents does not mean that it so acts through subordinate agents only. It may act through its mayor or its common council, its superintendent of streets, or its board of public works.
“Whether the persons thus acting are appointed by the governor or president, or are elected by the people, does not affect the question whether they are or are not parts of the corporation and its agents.” (Syllabus.)
■Referring again to Gray on Limitations of Taxing Power and Public Indebtedness, that author, after classifying the authorities, as already stated, says:
“The courts which assert the wider powers of the legislature in matters of local interest regard the local subdivisions purely as agencies of the state. They carry the doctrine that the legislature is supreme in matters of taxation to its fullest extent. They regard the state legislatures as having the whole legislative power of the state, without any implied exceptions in favor of local self-government. When we consider that in many matters, already noted, all parties concede the legislative supremacy; that there are but few matters of such purely local interest that some color of general interest may not be asserted to justify legislative interference; that the rules of construction require the courts to strain interpretation, if necessary, in order to uphold legislative action; that, in nearly every case of legislative interference with local affairs there is a strong party in the locality itself upholding such interference; and, finally, that constitutional amendments and revisions have been so frequent in recent years that the omission from a constitution of express restrictions in any respect may fairly be regarded as intentional, it must be admitted that those who deny the existence of implied limitations preventing the legislature from exercising compulsion in local taxation have, practically, the best of the argument.” (§ 651.)
Among the authorities sustaining these views are Churchill et al. v. Walker et al., 68 Ga. 681; City of Newport v. Horton, 22 R. I. 196, 47 Atl. 312, 50 L. R. A. 330; Ohio ex rel. Atty.-Gen. v. Covington et al., 29 Ohio St. 102; Coyle v. McIntire, 7 Hous. (Del.) 44, 30 Atl. 728, 40 Am. St. Rep. 109; The State ex rel. Herron v. Smith, 44 Ohio St. 348, 7 N. E. 447, 12 N. E. 829; Wm. B. Astor v. Mayor et al., 62 N. Y. 567; Thomas v. Leland, 24 Wend. (N. Y.) 65; The People ex rel. v. Flagg et al., 46 N. Y. 401; City of Philadelphia v. Field, 58 Pa. St. 320; 1 Desty, Taxation, § 57.
The power of appointive boards to create debts and levy taxes, so urgently contended against by the plaintiffs, it will be seen was an essential feature of the Galveston case, swpra, and has been sustained in other jurisdictions. An act of the legislature of Oregon authorized the city of Portland to construct water-works, and named certain individuals who should exercise that power. It further authorized this committee, as it was named, to issue and sell city bonds and build the works. Certain taxpayers sought to enjoin this committee, on the ground that there could be no authority given to contract such debts and build such works without the consent of the people — substantially the same argument as that made here. In its opinion the supreme court of that state, in David v. Portland Water Committee, 14 Ore. 98, 12 Pac. 174, said:
“Public parks, gas, water and sewage in towns and cities may ordinarily be classed as private affairs, but they often become matters of public importance; and when the legislature determines that there is a public necessity for their use in a certain locality, I do not think they can be designated as mere private affairs. That is a relative question.” (Page 123.)
It will be seen that the court classified parks along with water-works as legitimate subjects of state control. The court also said:
“From any view, it seems to me that the measure which is attempted to be enforced by means of the act is a public advantage; and we must presume that it was necessary to adopt the act in order to insure its accomplishment. It, evidently, is not a scheme to advance the interests of any private individual, but an enterprise that aims to benefit an entire community, and I must regard it as public in its character. If I am correct in this conclusion, then the legislative assembly had an undoubted right to appoint agents to enforce its provisions, and to authorize the issuance of the bonds in the name of the city. I concede that it bears a semblance of arbitrariness, and that I would have been better satisfied with it if the city had been allowed to have issued the bonds; but they appear to acquiesce in it, and, so far as we can observe, are endeavoring to maintain the act; and this court might, by intermeddling with the affair, do the city a great damage.” (Page 125.) .
The opinion discusses the distinction between those functions of municipalities which are merely proprietary, and in a sense private, and those which are public, or in which the people of the state at large are interested, citing Dillon’s Municipal Corporations to the effect that this distinction is unsatisfactory and difficult to trace, and holding that the purpose in question was public.
In The People ex rel. v. Walsh et al., 96 Ill. 232, 36. Am. Rep. 135, the same rule was applied to parks and the same view adopted of the validity of a law providing for the appointment of park commissioners, holding that it was competent for the legislature to vest the control of the parks of the city in park commissioners. It is true that the constitution of Illinois differed somewhat from our own in respect to such delegation of power; still, the reasoning of the court, we think; is quite applicable under the provisions of our own constitution.
That public parks are not for the sole use' and benefit of the citizens of the city, but are for the enjoyment of the public generally, while ordinarily subject to municipal management, has been frequently held. (Hartford v. Maslen, 76 Conn. 599, 57 Atl. 740; State ex rel. v. Board of Park Commrs., 100 Minn. 150, 110 N. W. 1121, 9 L. R. A., n. s., 1045; Lincoln v. Boston, 148 Mass. 578, 20 N. E. 329, 3 L. R. A. 257, 12 Am. St. Rep. 601; Co. Ct. of St. L. Co. v. Griswold et al., 58 Mo. 175.)
In the Maslen case, supra, it was held:
“Such public parks are held not for the sole use of the people of a particular municipality, but for the use of the general public, which the legislature represents. Municipalities in controlling and managing such public parks act as governmental agencies, exercising an au thority delegated by the state, and are always subject to legislative control.” (Page 611.)
Whatever view may be taken of those concerns of cities which are mainly private or proprietary in their nature, in matters in which the state has an interest, and which, as we have seen, are undoubtedly subject to the sovereign control of the state, the state may interfere at will with the local bodies, and may compel the local community to tax itself in order to carry out the obligations imposed upon it by the state. (Gray, Lim. Tax. Power & Pub. Indebt. §§ 617, 618.) Thus, cities have been compelled to levy taxes for the construction of a tunnel by a state commission (Browne v. Turner, 176 Mass. 9, 56 N. E. 969), to assist in paying for a canal (Thomas v. Leland, 24 Wend. [N. Y.] 65), and for improvement of streets connected with Central Park, in New York, under the control of park commissioners (W. B. Astor v. Mayor et al., 62 N. Y. 567).
It was held in Minnesota that an appointed park board might lawfully determine the amount of taxes to be levied for park purposes, within the limit fixed by law. (State v. West Duluth Land Co., 75 Minn. 456, 78 N. W. 115.) And the same rule was applied in Massachusetts, when the power to lay out streets in a city was delegated to an appointed board, with authority to levy betterment assessments. (Masonic Building Assoc. v. Brownell, 164 Mass. 306, 41 N. E. 306.) The court said:
“The authority of the legislature to delegate to boards and commissions appointed by the governor and council or by the courts, or, as this was, the power to assess and apportion certain expenses, reserving to parties aggrieved the right to a jury trial, has been exercised too long to admit of question now.” (Page 311.)
“Acts authorizing state officials to construct public buildings, parks, and highways, the expense of which was to be paid locally, have been uniformly sustained, and it has been asserted -that the transfer of the power was no encroachment upon local government.” (Gray, Lim. Tax. Power & Pub. Indebt. § 688.)
That the city may be required by legislative act to establish parks and boulevards, and pay the expense incident to their creation and maintenance, must be conceded; and that the legislature, instead of requiring the mayor and council to levy the necessary-taxes therefor, may devolve that duty upon another agency created by law logically follows. The complaint that the people of the city are thus taxed without representation cannot avail. The maxim referred to is applied in such cases in a very restricted sense, and the locality taxed is represented in the legislature which enacted the law. (Cooley’s Const. Lim., 6th ed., 202.) Maxims of government are addressed to the wisdom of the legislature, but are hot restrictive of legislative power. (Cooley’s Const. Lim., 6th ed., 203.)
If the people of the only city affected at present by this act fear that it will, as claimed, prove to be harsh and oppressive in its operation, their appeal should be to the legislature for relief. The sole duty of the court is to determine its validity under the constitution.
Whether viewed in the light of our own decisions, collated above, or considered with reference to the weight of judicial opinions in other jurisdictions, we must hold that the act in question, so far as its operation and effect is challenged in this action, is constitutional and valid, and that the demurrer to the answer, was properly overruled.
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|
The opinion of the court was delivered by
Smith, J.:
At the outset of the trial the plaintiff objected to the introduction of any evidence on the part of the defendant, who assumed the burden of proof, for the reason the answer did not state a defense to plaintiff’s action. This raised the same question as the demurrer to the answer and the motion for judgment on the pleadings, viz., that although the answer purported to state a defense, and prayed for judgment against the plaintiff, it did not put in issue any of the facts alleged in the petition. Whether the .lack of a general denial in the answer was specifically called to the attention of the court does not affirmatively appear, and it does not seem possible-that such could have been the fact. It does appear from the' answer that the defendant did not intend to admit the plaintiff’s cause of action, and it - sets forth a defense which, if coupled with a general denial, would have been a good defense if found to be true, but would have been of no avail if the undenied facts in the petition were admitted. This, with the- added fact that the defendant prayed for judgment, suggests that both the counsel for defendant and the court overlooked the lack of a general denial. This conclusion is further sustained by the fact that after the defendant, who had assumed the burden of proof, had introduced his evidence and rested his case, and the court had sustained a demurrer thereto, it allowed him to introduce further testimony, and then overruled a demurrer to his evidence. Some, at least, of these six rulings were technically erroneous, and with a number of others are assigned as errors upon which wé are asked to reverse the judgment.
Notwithstanding these erroneous rulings, it appears that the trial was proceeded with and evidence offered by both the .plaintiff and the defendant as if the undenied allegations of the petition were in issue. There is no suggestion, that, should we reverse the judgment in this case and send it back for a new trial, the plaintiff or the defendant would, in case an amended answer was filed including a general denial, have any other evidence to offer than was offered and considered in this trial. Had the plaintiff stood upon the rulings we have referred to and brought the case here, we could not have done otherwise than reverse the judgment. Instead of this, the plaintiff finally introduced evidence and tried out the ease as if the general issue had been joined. He thereby consented to an enlargement of the issues, and could not thenceforth complain if the case be regarded as properly tried upon such issues. (Gilson v. Hays, 2 Kan. App. 460, 43 Pac. 93; Edwards v. Sourbeer, 73 Kan. 224, 84 Pac. 1033; Mo. Valley R. R. Co. v. Caldwell, 8 Kan. 247.)
The case will then be considered here, as it evidently was in the court below, as if the general denial had been included in the answer and a general denial filed as a reply. Such an amendment and additional pleading should have been allowed, and probably would have been had the attention of the court been specifically called thereto. Neither party is prejudiced.by considering the pleadings as if thus amended, since the issues so framed were not only tried in the court below, but the issues of law thereby involved are fully and ably discussed in the brief of each party here.
We have examined the evidence to which our attention has been called, and it is clearly sufficient to sustain the affirmative defense set forth in the answer, which, under the instructions, the jury necessarily found to be true as the basis of their verdict, to wit, that.Ringle signed the notes in question as an accommodation to the commission company and without consideration therefor, and that Rockefeller obtained the notes in question after maturity.
It further appears from the evidence that Rockefeller was an officer of the commission company, and that he and two other officers of the company executed to the ,Des Moines National Bank, on January 21, 1901, the following instrument in writing:
“For valuable consideration to us in hand paid by the Des Moines National Bank of Des Moines, Iowa, the receipt of which is hereby acknowledged, we, the undersigned, do hereby agree to make good and guarantee to the said Des Moines National Bank any and all debts which the Seigel-Sanders Live Stock Commission Company, a corporation doing business in Kansas City, Mo., may from time to time contract or become liable for to said bank, however said debts may be contracted or evidenced.
“This guarantee shall be an open one and cover debts and obligations aggregating a hundred and twenty-five thousand dollars at any one time, and shall continue at all times unconditional until revoked by us in writing duly served upon said bank. And for the consideration aforesaid we. hereby waive all notice to us or either of us of the beginning or ending of credit which said bank may give to said company under this guarantee of the state of its indebtedness at any time during the existence of this guarantee.
“Witness our hands this 21st day of January, 1901.
Signed: Frank Seigel,
R. D. Swain,
Frank Rockefeller.
(Witness) Harry A. Moore.”
It does not appear that Rockefeller was an indorser or guarantor of the particular notes, but by the foregoing contract he became a surety for the commission company to the Des Moines National Bank, some time even before the execution of the notes in question, for any and all debts for which the commission company might become liable to the bank. It also appears from the evidence of Rockefeller himself that he paid the deficiency upon the notes in question by reason of this surety contract, and thereupon received the notes after their maturity.
It therefore does not seem to be material whether the writing indorsed upon the back of the notes and signed by the commission company constituted a commercial indorsement or whether, as contended, it was simply an assignment.
As between himself and the commission company Ringle owed it nothing on the notes, but the commission company used the notes and the mortgage given to secure them as a credit with the Des Moines bank. After selling the cattle, which really belonged to the commission company, and applying the proceeds on the notes, the bank looked to the commission company on its guaranty, and to Rockefeller as surety for the commission company, for the balance of the debt. Rockefeller paid the debt; whether as a separate transaction or as an item in a larger amount of indebtedness does not appear, and probably is not material. In either event he did not become a purchaser of the notes in the usual course of business. Indeed, he does not appear to have purchased the notes at all. He paid no money for them which he was not obliged to pay under his contract as surety for the commission company. (Mann v. National Bank, 30 Kan. 412, 1 Pac. 579; Fox v. Bank of Kansas City, 30 Kan. 441, 1 Pac. 789.)
Again, it is contended by the plaintiff that he acquired the notes from the Des Moines bank under his guaranty to that bank and is entitled to be subrogated to all rights and remedies of that bank against Ringle. He cites Investment Co. v. Law, 62 Kan. 193, 61 Pac. 745, in support of this proposition. As we have seen, Rockefeller was not a guarantor to the Des Moines bank upon the notes of Ringle, but a surety for the commission company of all of its indebtedness to the Des Moines bank to a certain amount, and herein lies the distinction between this case and the case cited.
The last objection is that it was error for the court to instruct the jury that if Rockefeller purchased the notes after maturity he could not recover. In the view we have taken this was not prejudicial to the plaintiff. It simply imposed an unnecessary burden upon the defendant, if our view that Rockefeller did not purchase the notes at all is correct. He paid the balance due upon these notes, as before said, as surety for the commission company, and not as guarantor for Ringle. He must look to his principal for his indemnity. If his principal had any rights against Ringle upon the notes he could, perhaps, standing in the shoes of the commission company, avail himself 'of any benefits that might be derived therefrom. But, as_ before said, the commission company had no claim against Ringle thereon ; therefore Rockefeller had none.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Three assignments of error have been made: (1) The plaintiff is not the owner of the note and mortgage or the real party in interest; (2) the cause of action is barred by the statute of limitations; (3) the court erred in the admission of evidence. It will be more convenient to consider these in'irregular order.
There are two depositions of Samuel Buchanan. One of them was objected to on the ground that it was not signed by the witness. There is an unsigned stipulation attached to it which apparently was intended to authorize the stenographer to attach the witness’s name to the deposition after it had been transcribed, and it was so signed. The preservation and protection of evidence taken in this way is of too much importance to permit inference and speculation as to the manner in which it was taken. Section 359 of the civil code (Gen. Stat. 1901, § 4807) contemplates that the witness shall subscribe the deposition in the presence of the officer before whom it is taken. The parties, however, may waive these provisions, but if they do the waiver should clearly appear. We think this objection should have been sustained, but in our view of the case the error was immaterial.
It is further urged that the court erred in admitting in evidence the proceedings of the probate court in relation to the estate of John Buchanan, deceased, and of the guardianship of Ira Lee Rutledge, referred to in conclúsions of fact Nos. 16 and 17, for the reason that they are not properly authenticated, either under the federal or state statutes. In what particular they are deficient is not stated. The United States statute upon this subject reads:
“The records and judicial proceedings of the courts of any state or territory, or of any such country, shall be proved or admitted in any other court within the-United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” (U. S. Comp. Stat. 1901, § 905.)
The authentication in question reads:
“The state of Ohio, Carroll County, ss, Probate Court.
“I, Fred W. McCoy, judge and ex-officio clerk of the probate court, within and for the county of Carroll and state of Ohio, do hereby certify that the foregoing is a true copy of the journal entry (journal 18, p. 39) as the same appears upon the records of said court, and I further certify that I have carefully compared the foregoing copy with the original record, and that the same is a full and correct transcript thereof; that I am sole custodian of the records of said probate court, and that this certificate is in the form of law.
“In witness whereof I have hereunto set my hand and affixed the seal of said probate court, at Carroll-ton, Ohio, this 16th day of June, A. D. 1906.
[seal.] Fred W. McCoy,
Probate Judge and ex-officio Clerk of said Court.”
“State of Ohio, Carroll County, ss. Probate Court.
“I, Fred W. McCoy, sole judge of the probate court, within and for said county and state, the same being a court of law and of record, do hereby certify that Fred W. McCoy, whose genuine signature is attached to the foregoing certificate, is, and was at the time of signing the same, ex officio clerk of said probate court, and, as such, full faith and credit are due his acts, and that the above is in due form of law, and made by the proper officer.
“In witness whereof I have hereunto set my hand and affixed the seal of said probate court, at Carroll-ton, Ohio, this 16th day of June, A. D. 1906.
(seal.) Fred W. McCoy, Probate Judge.”
The other certificate is substantially the same, except that the whole matter is embraced in one certificate. We think this sufficient. (Case v. Huey, Adm’r, 26 Kan. 553, 560; Graham v. Troth, 69 Kan. 861, 77 Pac. 92; 17 Cyc. 353; Abbott’s Trial Ev., 2d ed., 669; 1 Bouv. Law Dic. p. 820; 2 Ell. Ev. 590.)
The proceedings show, however, that the application by the administrator for an order to make final distribution, the order of the court in pursuance of such application, the report that such distribution had been made, and the court’s approval thereof, all occurred upon the same day. This probate court is in the state of Ohio. The provisions of the law of that state upon this subject do not-appear in the record of this case, and we must therefore presume it to be the same as the law of this state. (Railroad Co. v. Johnson, 61 Kan. 417, 59 Pac. 1063; Bank v. Nordstrom, 70 Kan. 485, 78 Pac. 804.) Under the statute of this state a valid final settlement and order of distribution cannot be made without notice to the parties interested. (Gen. Stat. 1901, § 2957; Music v. Beebe, Adm’r, 17 Kan. 47.) We do not think the record of the probate court is, therefore, entitled to much weight in determining this controversy. The case should rest upon the other facts found by the court.
It is insisted that when a citizen of the state of Ohio dies the title to his personal property descends to his executor or administrator, and not to his heirs, and, therefore, the ownership of the note and mortgage ’involved in this suit did not pass to Mary Jane Buchanan or to the plaintiff, but they have at all times belonged to the estate of John Buchanan, deceased. Assuming, as we must in the absence of evidence to the contrary, that the-law of the state of Ohio upon this subject is the same as it is in this state, we do not concur in this view. Under sections 1, 18, 31 and 32 of the law relating to descents and distributions, being chapter 33 of the General Statutes 1901 (§§ 2503, 2520, 2532, 2533), the equitable title to the whole' estate belonging to a decedent, real and personal, not exempt, descends directly to his heirs. The legal title to personal property passes to the administrator, if there be one, who holds it in trust for creditors, heirs or legatees. (Fletcher v. Wormington, 24 Kan. 259, 264.) When there are no debts administration is unnecessary, and the heirs may collect the estate and make distribution among themselves. (See 3 Redfield, Wills, 2d ed., 89.) In volume 11 of the American and English Encyclopsedia of Law, at page 742, it is said:
“If there are no creditors the next of kin entitled to the estate may collect and make distribution among themselves without administration, but the court of probate still has jurisdiction to grant administration, though the estate owes no debts and there is only one distributee.”
Also, in volume 18 of the Cyclopedia of Law and Procedure, at page 62, it is said:
“In a number of states it is held that administration is unnecessary where there are no debts of the estate or the debts have all been paid, the courts considering that when the only duty devolving on an administrator would be to make a distribution of the estate, and the heirs or distributees make or are able to make a satisfactory distribution or disposition thereof themselves, or there is only one heir, administration would be merely a useless ceremony, involving itnnecessary expense, and the same is true where no administration has been applied for and the claims of creditors, if any exist, are barred because they have not been presented to the'probate court within the time limited for that purpose, or by the statute of limitations. But if any of the heirs or distributees demand an administration it must be had.”
In the case of Foote v. Foote, 61 Mich. 181, 28 N. W. 90, the court said:
“The legal estate only in personal property vests in the administrators; the equitable estate therein is in the heirs, or other persons entitled to distributive portions thereof. The estate of the administrators therein is a trust for that purpose, and is created only for the purpose of laying hold of the estate and making such distribution. When there are no creditors, the heirs or legatees may collect, if they can, the estate together, and make such distribution among themselves as they may agree to and carry into effect, without the intervention of any administrators; and the law favors such arrangements. In such cases it is only where the heirs or legatees fail to make such collection and distribution that administration becomes necessary.
“When such arrangement and distribution have been made and executed, it will be binding, both in law and equity, as between the parties making it, whenever the rights of creditors do not intervene. And where there are no creditors, the heirs or legatees.may divide up and distribute the personal property of the decedent, without converting it into money, in such manner as they see fit; and when such division has been executed, even though it is not such as the decedent has made by his will, or such as the law would make when there is no will, it will be binding upon all the parties to the agreement.” (Page 189.)
In the case of Walworth v. Abel, 52 Pa. St. 370, it was said:
“No doubt the personal estate of a decedent vests in the administrator, but in trust for creditors and heirs or legatees. The mere legal estate passes to the administrator; the equitable descends upon the parties entitled to distribution. If there be no creditors the heirs have a complete equity in the .property, and if they choose, instead of taking letters of administration, to distribute it by arrangement made and executed amongst themselves, where is the principle which forbids it?
“The parties to such an arrangement executed would be forever equitably estopped from disturbing it, as amongst themselves, upon '’the most familiar principles of justice. And why shall the arrangement be broken up by a mere .intermeddler? Family arrangements are favorites of the law, and when fairly made are never allowed to be disturbed by the parties, or any other for them.” (Page 372.)
The following cases are to the same effect: Needham v. Gillett, 39 Mich. 574; Waterhouse v. Churchill, 30 Colo. 415, 70 Pac. 678; McGhee et al. v. Alexander et al., 104 Ala. 116, 16 South. 148; Cox v. Yeazel, 49 Neb. 343, 68 N. W. 485.
In this case there were no debts, except a few of small amount, which were paid. The assets were accessible to the heirs of the intestate, who lived where they could easily confer with each other. The appointment of an administrator was unnecessary, and the expenses incident thereto might well have been avoided. The property belonged to the heirs exclusively, and it seems reasonable and just that they should have the right to divide it among -themselves and own, use and dispose of it in severalty as any other property which they might own.
The only person who could question such a transaction would be a creditor who had been overlooked and not paid. The possibility of that contingency had passed, however, some years before this suit was commenced, by lapse of time, more than three years having passed since the last date on which an administrator might have been appointed. (Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1061; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118, 21 L. R. A. 550; Bank v. King, 60 Kan. 733, 737, 57 Pac. 952.)
The widow and each of the children of John Buchanan, deceased, testified at the trial to the settlement and division of the estate among themselves and the grandchildren of the deceased, and that it was satisfactory to all parties. The great lapse of time since the estate was settled, during which all parties have acquiesced therein and retained the amount received thereby, is sufficient to est»p them from hereafter objecting to the'arrangement. The claim of the plaintiff in error that the. note and mortgage are barred by the statute of limitations is based upon the ground that Mary Jane Buchanan did not become the owner thereof by the action of the heirs of John Buchanan, deceased, and therefore the payment of interest to her did not prevent the running of the statute. The view we have taken of her rights in this respect, however, answers this objection, and the question need not be further considered.
(94 Pac. 574.)
This .disposes of the assignments of error. No material error having been shown, the judgment is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This was a suit for an accounting of partnership business, brought by plaintiff as administrator of the estate of Ernest W. Radder, deceased. The- petition alleged that the defendant and the deceased had entered into a partnership under the name of Radder, Laney & Co. to prospect and drill for oil and gas in Montgomery county, under a written agreement, the substance of which was stated, and which it was alleged was in the possession of the defendant. The defendant answered by a general denial and a specific denial of the existence of the alleged written agreement to form a partnership. This answer was verified.
On the trial the deposition of one Bates was read, from which it appeared that the defendant was in the service of the Sand Fork Gas and Petroleum Company, operating in the Indian Territory, and that in a conversation with the witness, who was the secretary of the company, the defendant said that Mr. Radder, his son-in-law, was anxious to make some money in oil operations and had agreed to pay the expenses and a salary of $200 per month for him to operate-in Kansas, the proceeds of such operation to be divided — three-fourths to Radder and one-fourth to the defendant.
The deposition of William F. Sprague, president of the Sand Fork company, shows that the defendant told the witness that he was interested in oil properties in Montgomery county, Kansas; that the witness saw bills rendered by defendant to Radder, Laney & Co. for services; that these bills were handed to him by the defendant by mistake, together with another paper, in the course of business then being transacted for the Sand Fork company; and that a few days .afterward the defendant called for such papers and they were handed to him by the witness. .This occurred in Cleveland, Ohio, in June or July, 1903.
While these bills and this paper were in the possession of Mr. Sprague he showed them to Mr. Bates, and they both read the paper. Both of these witnesses in their depositions testified to the contents of this paper— in substance, that it was a partnership agreement between the deceased, Radder, and the defendant, Laney, containing terms substantially the same as alleged in the petition, and that it was signed by both parties. Both witnesses were cross-examined at length concerning this paper and its contents. On the trial an objection was made to the evidence of these witnesses as to the contents of this paper, and the testimony was excluded. After the direct-examination pertaining to the contents of this paper was excluded the plaintiff ■offered the cross-examination, to which the defendant •also objected, and the objection was sustained.
The deceased, Radder, was in his lifetime the treasurer of the Sand Fork company, having his office at Cleveland, Ohio. The testimony discloses the fact that he made frequent remittances to the defendant, Laney, for the Sand Fork company, which were used in its business, but the evidence also discloses the fact that a number of his remittances — amounting to nearly $500 — were made to, and received by, the defendant which were not applied to that business, and the theory of the plaintiff is that such remittances were used in the business of Radder, Laney & Co. The evidence also shows that Laney was the holder of leases, from the Independence Gas Company of oil and gas territory in Montgomery county, which the defendant agreed to develop as provided in the leases, and it is claimed by the plaintiff that this business belonged to the alleged partnership.
Mr. Sprague testified on cross-examination that the paper before mentioned, which he returned to the’ defendant, was when he received it with a bunch of ■other papers, which he supposed pertained to the business of the Sand Fork company, and for that reason he read it; and he testified that it was a contract between Radder and Laney pertaining to oil leases in Montgomery county, Kansas. This statement was, however,, excluded on the objection of the defendant, for the reason that it was not the best evidence. On cross-examination the witness was asked:
“Ques. What paper was that? Ans. It was appar ently an agreement between Mr. Eadder and Mr. Laney.”
“Q. And you read it, did you? A. I did.
“Q. All of it? A. All of it.”
The foregoing questions and answers were not objected to.
The plaintiff examined the defendant as a witness and asked him this question:
“Ques. Mr. Laney, this action was commenced on the 18th day of May, 1905; did you at that time have in your possession, or have you since that time had in your possession, or have you now in your possession or under your control, any written agreement between E. W. Eadder and yourself concerning the operation of oil properties in the county of Montgomery and state of Kansas? Ans. No, sir; I never did have and I have not now.”
On cross-examination he said that he did not have such an agreement because there never was one made, and that he never had such an agreement in his possession. After this testimony the plaintiff again offered the depositions — both direct examination and cross-examination — of the witnesses stating the contents of the paper before referred to, to which the defendant again objected, and the court sustained the objection. Plaintiff then rested; and a demurrer to the evidence was sustained.
There was no error in sustaining the objection to the secondary evidence of the contents of the written instrument when first offered. No notice had been given to produce the writing and no evidence had been offered of its loss. The answers to the direct interrogatories being inadmissible, the cross-examination could not be allowed. (3 Wig. Ev.. § 1893.) The admissibility of the cross-examination depended upon the admissibility of the direct-examination. (Callison v. Smith, 20 Kan. 28; Bentley v. Estate of Bentley, 72 Neb. 803, 101 N. W. 976.) When, however, the defendant testified that no such paper was in existence a different question was presented. Under such conditions a notice to produce the paper would have been ineffectual, and the law does not require a vain act. It would have been useless to demand the paper in order to admit secondary evidence of its contents when the defendant" denied having it. He cannot complain that he was not given an opportunity to produce that which he testified he never had. (Bickley v. Bickley, 136 Ala. 548, 34 South. 947; Carr v. Smith, 58 Ga. 361; Scott v. Bailey, 73 Vt. 49, 50 Atl. 557; Roberts v. Spencer, 123 Mass. 397; 2 Wig. Ev. §§ 1201-1203.) It has been held that, where a demand would be vain or unavailing, it is unnecessary to make it. (Barton v. Mulvane, 59 Kan. 313, 52 Pac. 883.) The same principle applies here.
Notwithstanding the denial by the defendant that such a writing ever existed the plaintiff had the right to offer evidence to the contrary, and having offered evidence tending to show that such a writing was in existence and in the possession of the defendant, and the defendant having denied such possession, secondary evidence of its • contents was admissible. Even without this evidence there was testimony tending to show the existencé of a partnership. There was the testimony before referred to of the admissions of the defendant that he was engaged with Radder in oil operations in Kansas, stating the interest of the parties therein, and the salary he was to receive. In connection with this was the proof that remittances had been made to him from time to time by Radder that were not used in the business of the Sand Fork company, and the fact that he was engaged in such business in Montgomery county, under the leases from the Independence Gas Company. This court has said:
“Where the court sustains a demurrer to tire evidence, the court must be able to say that, admitting every fact that is proved which is favorable to the plaintiff, and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the plaintiff, still the plaintiff has utterly failed to make out some one or more of the material facts of his case.” (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan. 1 [syllabus], 1 Pac. 605.)
The light in which evidence should be considered upon a demurrer is very clearly stated in Hoffmeier v. Railroad Co., 68 Kan. 831, 75 Pac. 1117.
In Edwards v. Tracy, 62 Pa. St. 374, Mr. Justice Sharswood observed:
“The declarations of a party to the suit as to the existence of a partnership are unquestionably competent to prove him to have been a member of the alleged firm, and who were admitted by him to have been the persons composing it. . . . Nor does the fact that there was an agreement in writing between the de-. fendants prevent the admission of this species of testimony.” (Pages 378, 379.)
We conclude that the evidence of the contents of the written agreement offered after the testimony of the defendant had been given ought to have been received, and that the demurrer ought to have been overruled.
The judgment is reversed and the cause remanded for a new trial. | [
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Per Curiam:
The plaintiff in error brought an action against the board of county commissioners of Labette county, in the district court of that county, to recover damages for the death of her husband, which resulted from the falling of a defective bridge which had been built and maintained by the county. Upon the completion of the plaintiff’s evidence the defendant demurred thereto. The demurrer was sustained and judgment for costs was rendered against the plaintiff. Of this ruling and judgment she complains.
It is alleged in the petition and established' by unconflicting evidence “that the wire rope or truss sustaining the said bridge, by reason of its rotten condition and its insufficient size and weight, parted and gave way and was directly responsible for said fall and injury.”
It is admitted of record that the plaintiff’s evidence was sufficient to compel the overruling of the demurrer provided the evidence of notice to the chairman of the board of county commissioners of the defect which caused the injury is sufficient: It is also agreed thai the testimony of one C. W. Studley was the only evidence of such notice. ' Studley testified, in substance,' that he was the township overseer, and that the bridge in question consisted of an approach extending from the bank of the stream to an abutment, upon which, and on an abutment on the opposite side of the stream, •rested the main, or iron, bridge, which was also supported by the wire rope, or truss; that he told the chairman that the bridge was unsafe and went with him to examine it; that he told the chairman the approach was unsafe and said he would have it fixed as soon as he could when the water went down-; that he did not consider the main, or iron, bridge unsafe and did not talk to the chairman about it.
It nowhere appears that the chairman examined the wire rope or had any notice whatever of any defect in it. On the authority of Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449, the ruling and judgment must' he° sustained. | [
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The opinion of the court was delivered by
Porter, J.:
The purpose of this suit is to enjoin the levy and collection of certain taxes and the appropriation of funds for the erection of a court-house and jail in the city of El Dorado by the board of commissioners of Butler county. There was a trial on an agreed statement of facts. The court found the issues in favor of defendants and refused the injunction. The plaintiff brings the case here on error.
The controversy involves the validity of chapter 141 of the Laws of 1907. Prior to its enactment no board of county commissioners could proceed to erect any permanent county buildings or levy a tax for that purpose without first submitting the question to a vote of the electors of the county at some regular or special election. (Gen. Stat. 1901, § 1624.) The legislature of 1907 amended the general law on this subject, and provided that in counties of a certain class the board of county commissioners might erect permanent county buildings upon the petition of one-fourth of the resident taxpayers of the county without submitting the question to a vote.
On the 17th of May, 1907, the board of county commissioners of Butler county made an order in which it determined that it was necessary that a court-house, and jail should be erected at El Dorado, the county-seat, the cost not to exceed $60,000. The order recited that the assessed valuation of the property in the county was in excess of $6,000,000; that the county had at that time in its treasury $35,000 over and above its indebtedness of every kind or nature, being surplus funds; and that a petition praying for such order had been duly presented to the board, signed by more than one-fourth of the bona fide resident taxpayers of the county.- The order and proceedings were in all respects in conformity with the provisions of the act.
The title of the act in question and the first section thereof, which are the only portions involved herein, read as follow:
“An act to amend sections 1624, 1625 and 1626 of the General Statutes of 1901, pertaining to the erection of county buildings, and repealing said original sections.
“Section 1. That section 1624 of the General Statutes of 1901 is hereby amended so as to read as follows: Sec. 1624. The board of county commissioners of any county may determine, in their discretion, when the erection of any permanent building or buildings for the use of the s county is necessary, and they shall also determine the cost of the erection thereof, and the same shall be entered on the journal, but no tax shall be leyied, bonds issued or other obligations incurred on account of the erection of such building or buildings until after the question has been submitted to the electors of said county at some general election or at a special election held for that purpose. When, however, the assessed valuation of the property in any county shall be in excess of six million dollars, and said county shall have in its treasury a sum not less than twenty-five thousand dollars belonging to said county, over and above its indebtedness of every kind and nature, and shall have no bonded indebtedness, and the county commissioners are petitioned therefor by one-fourth of the bona fide resident taxpayers of said county, they shall, without submitting the question to the electors of such county, levy an annual tax for the purpose of building or repairing any county building at the county-seat of any county, said tax not to exceed two mills on the dollar upon the taxable property subject to taxation in said county in any one year, and said tax shall not be levied for a longer period than five years, and the county commissioners are further authorized and empowered to use any surplus funds that may be in the treasury belonging to said county in payment for the erection or repairing of said buildings.” (Laws 1907, ch. 141,)
Four objections are urged against the validity of the act: (1) It is said that the act delegates legislative power to one-fourth of the voters of the county. (2) That the act does not have a uniform operation throughout the state, because it applies to only two counties in the state and is therefore class legislation. (3) That the title is insufficient. (4) That the act provides for the appropriation of money raised by taxation for current expenses to pay for the erection of county buildings. We shall consider these in their order.
(1) Does the act delegate legislative authority to the petitioning taxpayers? The act as passed by the legislature is a complete statute in itself and has been the law since it was enacted. It is a general law, and some of its provisions apply to every county in the state. Others of its provisions apply only to those counties falling within the class in which it is conceded Butler county belongs. The statute therefore declared what the law is in reference to the erection of county buildings in Butler county before any petition was presented by the taxpayers. The petition was not necessary to make the law. It was only necessary to give the board authority to act under the law. A statute is no less a law because its taking effect is made to depend upon, some subsequent event. (Cooley’s Con. Lim., 7th ed., 164.) In this respect the law is analogous to a great variety of laws the validity of which has been upheld. (See Noffzigger v. McAllister, 12 Kan. 315, upholding the night herd law, Phoenix Ins. Co. v. Welch, Supt., 29 Kan. 672, upholding certain provisions of the insurance law, and The State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177, in which the law providing for the appointment of metropolitan police upon a petition of two hundred householders was declared valid.) The precise question presented here was thoroughly discussed in the last-named case by Mr. Justice Johnston, and requires no additional comment.
The argument .that because the act confers upon twenty-five per cent, of the resident taxpayers the power to set the law in operation it therefore confers legislative powers is not sound. The .provision that the board of county commissioners may act upon a majority vote of the electors would be equally a dele gation of power and open to the same objection, yet that is one of the general provisions of the act and has been a part of the law since 1868.
It is contended, however, that the act falls within the rule declared in Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and in Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384, for the reason that it is claimed there is no room in the act for the exercise of any discretionary power by the board. It is said that the act of the petitioning taxpayers, and theirs alone, irrevocably determines the action taken by the board. It is therefore contended that the portion of the act under which the commissioners proceeded is unconstitutional, in that it attempts to confer legislative powers upon the petitioning taxpayers, first, to determine absolutely that permanent county buildings shall. be erected, and, second, to charge upon real estate and personal property of the county a special tax to pay for the same. This contention rests for its support upon what we regard as a strained construction of section 1, supra. It is first declared that the board may in its discretion determine when the erection of any permanent buildings for the use of the county is necessary, and shall also determine the cost thereof, and that the same shall be entered on the journal. Counsel insist that these provisions only apply in case the question is submitted to a vote of the electors of the county, and have no application where the action of the board is initiated by a petition instead of a vote. The whole section must be construed together. If we keep in mind the obligation which courts are under so to construe an act of the legislature as to uphold its validity, if it be possible to do so, a rule which has been repeatedly declared and adhered to by this court, we have no difficulty in construing the section to mean that the provisions in the first part of the section apply to the whole section. The latter part of the section is a proviso to the effect that when the conditions are such that a county falls within the excepted class the question need not be submitted to a vote.
Had the legislature intended the construction which plaintiff insists upon the act would doubtless have provided in plain terms that where the commissioners are petitioned by one-fourth of the resident taxpayers they shall, without submitting the question to the electors, and without determining the necessity for or the cost of the buildings, proceed, etc. We think the construction contended for is unreasonable, and that the law contemplates that where a petition is presented, signed by one-fourth of the resident taxpayers, the duties and powers of the board are the same as though the question had been submitted to a vote of the electors and carried. The board must determine the necessity and cost of the buildings in either case. Any other view of the act drives us to the absurd conclusion that the legislature intended that where the question should be submitted to a vote the commissioners should first determine the cost, but under proceedings upon petition there should be no determination of the cost, for, if the construction contended for is correct, there is no provision for determining so essential a matter as the cost when the buildings are to be erected upon petition. The petitioning taxpayers themselves are powerless. After their petition is presented the question whether permanent buildings shall be erected rests wholly with the board. This, we think, is the reasonable construction to be placed upon the law.
The act, therefore, is not open to the objection urged, and the cases of Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, and Hutchinson v. Leimbach, 68 Kan. 37, 74 Pac. 598, 63 L. R. A. 630, 104 Am. St. Rep. 384, relied upon by plaintiff, are not in point. In the Abbott case it was expressly held that the statute deprived the board of any discretion and made the action of the petitioners mandatory. In the Leimbach case the precise question determined was that it is not competent for the legislature to authorize an individ ual to effect a change in the boundary of a city. The doctrine of the Abbott case was held to apply to the facts and to control the decision. The following excerpts from the opinion in the Abbott case are sufficient to show that the principles upon which it was decided have no application to the present case:
“The petitioners named in the statute are authorized, absolutely and arbitrarily, to determine whether the improvement is necessary and shall be made. . . . If the legislature had conferred upon the board of county commissioners of Wyandotte county discretion to order the improvement, the control thereof, and the amount of expenditure therefor, the statute might be valid.” (Pages 158, 161.)
(To the same effect see Railway Co. v. Cambern, 66 Kan. 365, 71 Pac. 809.)
In the present case the act declares that the commissioners may determine in their discretion when the erection of buildings is necessary, and shall also determine the cost. From the statement of facts it appears that the commissioners adopted this course and actually determined the necessity and the cost.
(2) Is the act in conflict with the first provision of section 17 of article 2 of the constitution? (Gen. Stat. 1901, §135.) The language of the provision reads: “All laws of a general nature shall have a uniform operation throughout the state.” It is urged that the act in question is a general law which can apply to not more than two counties in the state: If, however, it operate uniformly on all the members of the class to which it applies it is not open to the objection, provided the classification adopted by the legislature is not an arbitrary or capricious one. The legislature has the power to enact laws of a general nature which will be applicable only to a certain portion of the state or to a certain class of citizens. The following language is from the syllabus in the case of Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915: “An act, to have a uniform operation throughout the state, need not affect every individual, every class, or every community alike.” The fact that there are at present but few counties to which the exceptions can apply does not of itself render the act repugnant to this provision of the constitution. In The State v. Downs, 60 Kan. 788, 57 Pac. 962, it was said:
“An act general in its provisions, but which can presently apply to only one city on account of there being but one of requisite population or other qualification, but which was designed to, and can in all substantial particulars apply to other cities as they become possessed of the requisite population or other qualification, cannot be regarded as a special act.” (Page 793.)
(To the same effect are Noffzigger v. McAllister, 12 Kan. 315; Tarman v. Atchison, 69 Kan. 483, 77 Pac. 111; Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, and cases cited.)
It can hardly be said that to base a distinction and classification upon the financial condition of a municipality is not as reasonable as to base them upon mere population, especially where, as in the case of the law under consideration, the financial condition of a county bears such close and peculiar relation to the legislative purpose, and furnishes an appropriate reason for the classification. The act provides for the erection of county buildings. It is general in its nature, and applies to every county in the state, but excepts from the general provisions certain counties in which there is property assessed at great value, which have no bonded indebtedness, and which have a large surplus in their treasury over and above all indebtedness, and grants to such counties thus distinguished and classified a simpler method for procuring public buildings. Before we are authorized to hold the act repugnant to this provision of the constitution for the particular reason we are now considering we must conclude that .the classification is capricious and unreasonable. This we are unable to do.
(3) The objections to the title of the act are extremely technical. The title of the original act is, “An act relating to counties and county officers.” (Gen. Stat. 1901, ch. 25.) The amended sections relate to the same subjects which are treated in the original act, and the amended act therefore comes within the scope of the original act.
“It is therefore as though it were a part of the original act, with the title to that enlarged by the latter portion of the title to the amending act.” (Philpin v. McCarty, Supt., &c., 24 Kan. 393, 405.)
(4) Finally, it is contended that the act is in conflict with section 4 of article 11 of the constitution (Gen. Stat. 1901, § 205), which reads as follows:
“No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.”
The case of Smith v. Haney, 73 Kan. 506, 85 Pac. 550, is relied upon. The statute construed in that case reads as follows:
“The said board of county commissioners are hereby authorized to use and expend in the erection, equipment and furnishing of said court-house and county-office building, in the year or years in which a tax may be levied, as they may deem necessary, in addition to the amount or amounts raised by the levy of the tax as herein provided for, such sum or sums from the general fund of said county not otherwise appropriated after all other running expenses of said county shall have been provided for.” (Laws 1905, ch. 167, § 3.)
This part of the act was held to be repugnant to the foregoing provision of the constitution because it authorized the commissioners to use a part of the general fund for the building of a court-house. It will be observed that the statute in express terms provides that funds raised for one purpose shall be applied to another. It, therefore, in terms violated the constitutional provision. In the present case the language is:
“And the county commissioners are further author ized and empowered to use any surplus funds that may be in the treasury’ belonging to said county in payment for the erection or repairing of said buildings.” (Laws 1907, ch. 141, § 1.)
The object of the provision of the constitution is to prevent the levy of. a tax for one purpose and the use of the funds raised thereby for another purpose. To levy a tax to build a bridge and divert the funds so raised to the erection of county buildings, or to levy a tax for general purposes and use the funds for the erection of a court-house or to improve a road, is exactly what the constitution prohibits. But there is such a thing as surplus funds which arise by reason of the fact that all the money raised for a special purpose is not always required for the accomplishment of the purpose. It is impossible to raise by taxation an exact amount. If, for instance, a bridge is to cost $5000, and a tax levy is made at a certain rate, it is impossible for any one to estimate in advance the exact amount that will be collected under the levy. There is, therefore, usually a surplus, which Bouvier defines to be “that which is left from a fund which has been appropriated for a particular purpose; the remainder of a thing; the overplus; the residue.” (2 Bouv. Law Diet, p. 1086.) Manifestly, it is the duty of the authorities in levying a tax to exercise good faith and not purposely levy a tax which would create an unnecessary surplus. In the Haney case (73 Kan. 506) the statute was worded so as leave it within the power of the commissioners to levy a greater tax for various purposes than the purposes required, with the intention thereby of creating a fund to be used in the erection and repair of county buildings. No such objection can be raised to the act in question. The legislature has recognized the fact that a surplus will necessarily arise in any fund, and has provided that the county treasurer shall transfer the same to the general fund of the county. (Gen. Stat. 1901, § 1713.) This the legislature has done from the necessity which arises by reason of the un expended surplus in various funds, and it is a reasonable argument to say that if the legislature has the power to provide for the disposition of such surplus funds in one way it may do the same thing in another without violating the constitution. And this is what the legislature has done by. this act. Taking one view of the fac(;s, it would seem that none of the $25,000 surplus appropriated by the board for the erection of county buildings was ever derived from taxes. It appears that within recent years the county has received and has on hands a surplus from interest on moneys deposited in banks, from fees collected by county officers in excess of their salaries, and from other miscellaneous sources much more than the amount appropriated. We think, therefore, that the provision of the act authorizing the appropriation by the county of surplus funds is not in violation of the constitutional provision.
We conclude that the act is not unconstitutional upon any of the grounds urged. The judgment is affirmed.
Johnston, C. J., Mason, Smith, Graves, Benson, JJ., concurring. | [
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Per Curiam:
This is another quarry case, in which workmen were sent to pick and shovel shale among-hidden, unexploded charges of dynamite of the existence of which the men were ignorant, it being the duty of a foreman to locate and remove such charges. One: man was killed, and the plaintiff was badly wounded. The defenses were those usually interposed after such catastrophes — assumption of risk, and contributory negligence.
The court rightfully took from the jury the question of assumption of risk. While that question is one of fact, there was no evidence in this case to take it to the jury. It did not arise upon tlie plaintiff’s evidence, and the defendant’s evidence brought the case clearly within the principle of Harper v. Cement Co., 76 Kan. 612, 93 Pac. 179. The fact that the plaintiff knew that dynamite placed in holes frequently did not explode did not make him assume the risk of injury from the negligence of the foreman in failing to perform his duty to locate and take out such unexploded charges.
This court holds that, for the protection of those workmen who have had nothing to do with the preparation and firing of a blast but who must follow the blasters in ignorance,, pf the„-location of unexploded charges, the master must make ah inspection to ascertain what charge's failed to explode, and then mark or otherwise safeguard those which did not; and whoever may be entrusted with this work, whether foreman, driller, shooter, or other person, represents the master in a non-assignable duty.
The court did not suggest the answer to question No. 18%, but inquired the answer and saw to it that the answer of the jury correctly appeared. The answer to' question No. 83 is entirely sufficient. The law itself answers the question the same way the jury did.
The evidence of negligence on the part of the defendant was ample, and the finding that the plaintiff was not guilty of negligence accords with the proof.
No other question of merit is presented, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sued defendants for contribution. The petition set up three causes of action. Separate demurrers were filed to each. The demurrer to the first was overruled, and those against the second and third were sustained. The plaintiff complains. *
The Topeka Capital Company was organized in 1890 as a corporation under the laws of Kansas. Plaintiff and defendants were stockholders. The company became insolvent, and, in November, 1895, ceased doing business. On May 3, 1900, the Remington Paper Company recovered a judgment against it in the district court of Shawnee county for $10,160.84, and afterward brought an action upon the judgment in the United States circuit court against the plaintiff to recover upon his double liability as a stockholder. In June, 1904, judgment was recovered • against him for $5500, with interest and costs. An appeal was taken, and the litigation continued until 1907, when the plaintiff satisfied the judgment by paying the sum of $6113.77. These facts were set up in the first count of the petition, a demurrer to which was overruled. In the second count plaintiff sought contribution from the defendants for the sum of $1220, for costs and expenses paid by him in defending the action in the federal courts.
The demurrer, to the second count was rightly sustained. In order to entitle plaintiff to contribution from the other stockholders on account of money expended in payment of the costs of litigation it should appear from his petition that the costs were incurred for the benefit of his co-stockholders. The action in which the costs were paid was against the plaintiff upon his double liability as a-stockholder,'based upon a judgment against the corporation. If he had defended on the ground that the judgment was not a valid one, this might have inured to the benefit of the other stockholders, and the costs would probably have been chargeable against them in an action for contribution. Costs and expenses incurred by him in a bona fide effort to defeat the claim in whole or in part as against the company would have been as much for their benefit as his, but it is not asserted as a fact that these costs were thus incurred, nor does this appear as a-necessary inference from the facts stated. So far as appears from the petition itself, all of the defenses interposed by the plaintiff were personal to himself, and neither directly nor indirectly benefited the other shareholders. It is not claimed that the judgment against the company was modified in any respect, and it appears that the balance of the judgment which was not paid by the plaintiff continued as much a liability of the corporation, and indirectly of the other stockholders, after the defense made by plaintiff as it was before. The reasonable inference from the averments of the petition appears to be that the defense made by him was solely in his own behalf; that while he was sued for $9000,- and the judgment recovered against him was only for $5500, the reduction was of no benefit to the defendants. The right to contribution between coobligors implies the payment by one of a burden common to- both. It does not appear from the petition that the 'payment of these costs relieved the defendants of a common burden.
“Where judgment is recovered against one of several coobligors, a judgment debtor is not entitled to contribution from his coobligors for costs, for in such a case it is not considered that he has discharged a common burden.” (9 Cyc. 797.)
To the same effect is Boardman v. Paige, 11 N. H. 431, and Knight v. Hughes, 3 C. & P. (Eng.) *467.
The claims set up in the third count were barred by the statute of limitations. This appears upon the face of the petition, and the demurrer was therefore rightly sustained. This cause of action is made up in part of a judgment in plaintiff’s favor against the Topeka Capital Company which was rendered December 2, 1897. It is alleged that the company ceased doing business in November, 1895, and that execution was issued and returned unsatisfied December 13, 1897. This action was brought January 29, 1906. The other part of the cause of action consists of' an account amounting to $4600, which is claimed to be due the plaintiff from the Topeka Capital Company. The last item of the account is a charge made November 10, 1900. Plaintiff contends that the effect of the statute of limitations was suspended by reason of the fact that this judgment and the account were in litigation until the termination of the proceedings against him in the United States court. It appears by the petition that in the action brought by the Remington Paper Company to recover upon plaintiff’s double liability he set' up as an offset his own judgment against the company and this account. The federal court, however, refused to allow either as an offset in that action. It is a general rule that the statute of limitations will not run against a cause of action while it is in litigation, but the litigation must be such as prevents the owner of the claim from enforcing it against the debtor. The Topeka Capital Company was not a party, directly or indirectly, to the action between the Remington Paper Company and the plaintiff in the federal court; nor were any of the defendants parties. The pendency of that litigation, therefore, could not prevent plaintiff from enforcing his claim against the defendants. Instead of asserting his claim against them he attempted to obtain credit for it by way of an offset in an action between himself and a third party.
In Delay v. Yost, 59 Kan. 496, 53 Pac. 482, it was held that a right of action on a replevin bond accrues when the plaintiff fails to comply with the judgment rendered against him, and the fact that he instituted a proceeding in error to reverse the-judgment will not prevent the running of the statute upon the cause of action; and in McDonald v. Symns, 64 Kan. 529, 67 Pac. 1111, where the action was for conversion, it was held that proceedings in error to reverse an order discharging an attachment upon the same property will not suspend the statute.
The decision of the federal court refusing plaintiff the right to offset his claims against the company did not involve his right to maintain an action against the defendants upon the judgment or upon the account. The validity of his claim was not involved, but merely the right to use it as an offset and a defense in that action. The rule with reference to the effect on the statute of limitations of the pendency of legal proceedings is stated in volume 25 of the Cyclopedia of Law and Procedure, at page 1278, in the following language :
“Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.”
The plaintiff was not prevented from exercising his legal remedy upon this cause of action by the pendency of the proceedings in the federal court against him. The result of that proceeding had no effect whatever on his right of action upon the judgment and the account, and it necessarily follows that the statute continued to run notwithstanding the litigation between him and the Remington Paper Company.
From what has been said the conclusion follows that the judgment must be affirmed, and it is so ordered. | [
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Per Curiam:
This is a suit to cancel a deed conveying real estate in Wichita', the execution and delivery of which by J. F. Neptune is- alleged to have been procured by -misrepresentation and fraud. Mathis, assisted by his partner, Tunnel, they being real-estate agents, negotiated an exthange of Neptune’s property in Wichita for' Collins’s farm in Oklahoma, and it was agreed that each garty should assume the mortgage on the property he received in the exchange. In pursuance of the agreement deeds for the respective properties were executed by both parties and deposited in escrow with Mathis, to be delivered, according to some of the testimony at least, when the abstract of Collins’s land-was returned from Oklahoma showing no other encumbrance than the one that Neptune had agreed to assume. The abstract was returned showing the title as it had been represented, and, the required conditions having been performed, the deed was turned over to Collins and the Collins deed mailed to Neptune.
Neptune insists that there was collusion and fraud between Collins and Mathis which destroyed the validity of the transfer. Although he pleaded the deposit of his deed in escrow, he gave a different version of the conditions upon which it was to be delivered than that related by other witnesses, and he also testified that prior to the delivery of the deed he gave notice to Mathis not to deliver the same. There was some testimony, too, that there was misrepresentation as to the character and value of the Oklahoma property. On the other side there was contrary testimony: as to representations made regarding the property in Oklahoma; testimony, too, that there was a fair escrow agreement providing that the deeds should be placed with Mathis, who was acting for both parties, and that he should deliver the deeds upon certain conditions; that these conditions had been performed, and that the deeds had been accordingly delivered. The claims of misrepresentation and fraud, the nature of the escrow agreement, the irrevocable character of the deposit of the deeds as an escrow, and whether there had been a compliance with the conditions, were all questions of fact, which were settled by the trial court adversely to the contention of the plaintiff in error; and the decision, being based on sufficient testimony, must be regarded as final.
The judgment is affirmed. | [
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The opinion of the court was delivered by ,
Smith, J.:
The association assigns numerous errors in. the introduction of evidence, in the overruling of its demurrer to plaintiff’s evidence, and in the giving of, and refusal to give, instructions.
The association does not question but that one assessment would have aggregated the amount of $2000, and it was admitted on the argument of this case that Nelson came to his death by suicide. In their briefs counsel for each party have concurred in the statement that the case here should be determined upon the contract of indemnity. It is said in the brief of the defendant in error:
“We insist in the second place that the only dispute between the parties is as to the legal effect of admitted facts. ... If the plaintiff’s construction of the contract is the law, the defendant owed the plaintiff on the death of Andrew Nelson, on compliance by her with the conditions of the policy, $2000 upon a contract obligation. If, under the law, the defendant’s contention as to what constituted the contract is correct, the defendant owed plaintiff, according to the terms of the contract as contended for by it, $768. In neither event could there be any dispute as to the amount of the obligation.”
We fully agree with counsel in their statement of the status of the case here, and that the contract itself under the admitted facts is determinative of our decision. We shall therefore ignore the detailed specifications of error, by which practically the same question is repeatedly raised, and shall proceed to the discussion and determination of the rights of the parties under the contract.
In the application of Andrew Nelson for admission to the order and for the contract of endowment occurs the following:
“I hereby declare that the above are fair and true answers to the foregoing questions, and I hereby agree that these statements, in the application and the laws of the supreme tent of the Knights of the Maccabees of the World, now in force or that may hereafter be adopted, shall form the basis of this contract of endowment. . . . This application and the laws of the supreme tent now in force, or that may hereafter be adopted, are made a part of the contract between myself and the supreme tent, and I, for myself and my beneficiary or beneficiaries, agree to conform to and be governed thereby.”
The portion of the certificate material in this consideration reads:
“This certifies that Sir Knight Andrew Nelson has been regularly admitted in and is recognized as a member in good standing of Atchison tent, No. 2, located at Atchison, Kan., and that in accordance with, and under the provisions of, the laws governing the order his legal beneficiary named herein is entitled to receive one assessment on the membership, but not exceeding in amount the sum of $2000, and the said sum will be paid as a benefit to Anna Nelson, his wife, upon satisfactory proof of his death, together with the surrender of this certificate, provided he shall have in every particular complied with the laws, rules and regulations of the order governing members and their beneficiaries which are now in force, or may hereafter be adopted by the supreme tent, or the subordinate tent to which he belongs, and has not obtained his membership by fraud or misrepresentation as to his age, physical condition, or occupation when admitted to membership.”
Section 183 of the by-laws of the association, which was in force at the time the certificate was issued to Nelson, provides among other things the following: '
“But no benefit shall be payable on account of the death of any member while engaged in a mob, . . . or by reason of death the result of suicide within two years after admission.”
In May, 1895, a new by-law was adopted in lieu of, or as an amendment to, the foregoing, which latter section contains the following provision, among others:
“And no benefit shall be paid on account of the death or disability of any member while engaged in a mob, . ." . or when death was the result of suicide within one year after admission, whether the member so taking his own life was sane or insane at the time.”
In August, 1901, the association again amended its by-laws and adopted the following section relating to suicide, which section was in force up to the time of the death of Nelson and the trial of the case:
“No benefits shall be paid on account of the death of a member when death was the result of suicide, whether the member taking his own life was sane or insane at the time; provided, that in case of suicide twice the amount of all assessments or month rates paid to the supreme tent by such member shall be paid back to the beneficiary named in the certificate, or to the person found to be entitled to receive the same,, which amount shall not exceed the face of the certificate, and such amount shall be the full amount that can be claimed in any such case.”
It is contended on the part of the association that the payment of the benefit is governed by the by-law adopted in 1901, which was in force at the time of Nelson’s death. On the other hand, Mrs. Nelson contends that the by-law in force at the time the certificate issued was a part of the contract, and that the association-could not, without the personal consent of Nelson, change the contract to his prejudice or the prejudice of his beneficiary. An imposing array of authorities is cited in support of each of these propositions, but the question is hardly an open one in this court. In Miller v. National Council, 69 Kan. 234, 76 Pac. 831, Mr. Justice Greene, in a case relating to the change of the rate of monthly assessments, said:
“The important question in this case is, Did the asso ciation, with the consent of plaintiff, reserve the power so to alter or amend its by-laws subsequently to the issuance of plaintiff’s certificate as to increase the amount of his monthly assessments? The plaintiff’s certificate is not his entire contract, and therefore not determinative of his rights and duties; it is not complete in itself. Some of the conditions and agreements which make his contract must be looked for elsewhere. The certificate does not contain a statement of what his rate of assessment is nor when it shall be paid. To supply these omissions we must look to the by-laws of the association, his application, and certificate. . . . The condition in plaintiff’s certificate that he should in every particular, while a member of the order, comply with all the laws, rules and requirements thereof was a consent on his part not only to comply with the laws .then in force, but also to comply with all reasonable rules and regulations that might be made thereafter in the interests of the association. ■ Every person joining an association obligates himself, without so expressing it, to conform to, and comply with, all its existing laws; and, if the provision in the plaintiff’s certificate means anything, it is .that-he agreed to comply with all laws then in force or subsequently to be enacted by the national council.” (Pages 239, 241.)
In that case, as in this, it was shown that the supreme body of the organization had power at its annual meetings to change the by-laws of the association. The plaintiff attempts to discriminate between the Miller case .and the case at bar, and says that the provision in the policy requiring the member to comply with all the reasonable rules and regulations of the association applies to the question decided in the Miller case, to wit, the power to increase the amount of the monthly assessments so far as reasonably necessary to enable the association to comply with its contracts, but does not apply to the present ease, where the by-law undertakes to decrease the endowment to be paid upon the death of the member occurring by suicide after the lapse of more than two tears. She cites, in support of this contention, Court of Honor v. Updegraff, 68 Kan. 474, 75 Pac. 477. In that case the constitution of the assdcia tion provided, in' substance, that the order would not pay benefits, of members who committed suicide, whether sane or insane, with specific exceptions; but in all cases not within the exceptions the amount of money contributed to the benefit fund by any such member was to be paid to the beneficiary out of the fund, in lieu of the benefit. Another section of the constitution of that order which was in force at the time the certificate was issued and at the date of the holder’s death provided:
“After two years certificates of membership shall be incontestablé for any cause except fraud, violation of the constitution or laws of this order, or failure to pay assessments for the benefit and general funds as provided by the laws.” (Page 475.).
The decision in that case was, in effect, the determination of which of two conflicting constitutional provisions should govern; that is, whether the provision which rendered the certificate incontestable after two years was rendered inoperative by another provision relating to suicide. The court decided that the provision rendering the certificate incontestable after two years governed, and upheld the claim of the beneficiary.
The rule is that where a member of such an organization consents that he and his beneficiaries shall be governed by the laws, rules and regulations of the association in force and existing at the time the certificate issues, or which may be thereafter adopted, it is conclusive upon him and his beneficiaries as to all reasonable changes which may be made therein.
In Ritter v. Mutual Life Insurance Co., 169 U. S. 139, 18 Sup. Ct. 300, 42 L. Ed. 693, it was held, in substance, that where an assured holding an ordinary policy of life-insurance comes to his death by suicide while sane, and there is no incontestable provision in the policy and no provision whatever in regard to suicide, the policy is •issued upon the common expectancy of life, and if the insured by his own act attempts to hasten the maturity thereof the policy becomes void. • The risk assumed by the insurer is therein compared to the risk under a fire-insurance policy, where there is no provision relating to the effect of an assured destroying his own property by fire, in which case, of course, it is universally held that the contract-of indemnity cannot be enforced. It was also said in the Ritter case that to allow an insured or his beneficiaries to recover an indemnity upon a death resulting from suicide is against public policy, and that, if a policy were written with the express provision that if the insured should come to his death by his own hand the insurer would pay the indemnity to his beneficiary or estate, the contract would probably be void as against public policy.
The question then for our determination is whether the change made in the by-laws of the association is a reasonable change. In 1892, when the certificate in this case was issued, the association expressly provided that it would not pay any indemnity in case the holder of the certificate came to his death by suicide within two years. In 1895, it is to be presumed, the association found it necessary and expedient to change the rules and to provide that no indemnity would be paid if the holder of the certificate came to his death by suicide within one year. Again, in 1901, the association found it expedient to change its by-laws and provided that no benefits should be paid on account of the death of a member when death was the result of suicide, blit that in such a case it would-pay the beneficiary twice the amount of all assessments or month rates paid to the supreme tent by the member, not exceeding the face of the certificate. This latter change accords with public policy in removing the inducement which a member might possibly have to benefit his beneficiary by his own suicide, and the provision to pay double the amount the association has received by reason of his membership and the issuance of the certificate does not seem to be unreasonable. While this provision of the by-law was not in existence at the time the member took out his certificate, or for a large portion of the time that he was paying assessments according- to his contract, it must be held that by his contract he consented to all reasonable changes in the by-laws of the association.
It is right and reasonable that all life-insurance organizations should decline to contract for the payment of any indemnity where death results from suicide. The by-law adopted by this association, however, is, from a financial standpoint, more fair; it provides for the return of twice the amount the defendant has received.
The conclusion to, which we have arrived makes it unnecessary to, consider the objection made by Mrs. Nelson that the settlement was procured by fraud or unfair means, our conclusion being that she has already received more than the association was obliged to pay: If we should assume, as we do not, that the settlement was procured by unfair means, she is not prejudiced thereby.
The judgment of the trial court is reversed and the case is remanded, with instructions to enter judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The state of Kansas, on the relation of a county attorney, brought suit to enjoin the defendant from the commission of a nuisance by the obstruction, of a public highway. The suit was instituted without consulting the board of county commissioners, and without authority obtained from them. Private parties applied to the county attorney for the relief asked and indemnified the state against costs. Private counsel prepared the papers and conducted the trial of the case, but the county attorney signed and verified the petition, appeared at the trial, and participated in the conduct of the proceedings.
On May 31, 1906, at the conclusion of the trial, the court announced orally what its judgment would be. The defendant then proposed to dedicate and open a road through his premises, satisfactory to all parties, in lieu of the highway obstructed, and the court, for the purpose of giving him an opportunity to do so, stated that it would take the case under advisement. On June 19, 1906, a regular motion day under the rules of the court, the defendant for the first time made a request for separate findings of fact and conclusions of law. The request was denied, as coming too late, the court calling attention to the fact that the judgment had already been indicated and that the proceedings were kept open merely on the proposal of the defendant referred to. On the next motion day, a week later, the request for separate findings of fact and conclusions of law was renewed and denied. On July 7 the court made findings and rendered judgment, as follow:
“Now on this 7th day of July, 1906, this case came on for further consideration, and the court, having hereto fore heard the evidence and the arguments of counsel, and being well advised in the premises, finds that the road described in the petition in this case' and known as the ‘Lynn road’ was duly and legally established and opened for travel in 1871, and ever since such time has been a public highway; and the court further finds that for more than fifteen years prior to the commencement of this action the defendant maintained fences, cattle sheds and other obstructions in and across said public highway, and continued to maintain said obstructions up to the trial of this case.
“It is therefore now here by the court considered, ordered and adjudged that said defendant, Joseph Eble, is guilty of maintaining a public nuisance.
“It is further considered, ordered and adjudged and commanded that said defendant, Joseph Eble, abate said nuisance within sixty-days from this date by removing all of said obstructions,.except his barn, from said highway, and he is hereby perpetually enjoined from obstructing the same or any part thereof in any manner whatsoever except as the same is now obstructed by said barn.”
The defendant prosecutes error.
It is claimed the county attorney had no authority to bring the suit. The statutes making it the duty of the township trustee to prosecute violations of the road law and giving him authority to remove obstructions, and the statutes prescribing the powers and duties of boards of highway commissioners and road-overseers, -are cited. The decisions of this court to the effect that the board of county commissioners has control of the business and financial affairs of the county, and has charge of all litigation in which the interests of the county are involved, are also cited. These statutes and decisions do not govern the controversy. The state at large has an interest in keeping the highways in every county free from obstruction to public travel, no matter what the attitude of the local authorities upon the question may be. The wilful obstruction of a highway is a public offense which the state may prosecute, even though the township trustee be disinclined or refuse to do so. Such an obstruction may be enjoined and abated as a common nuisance by the state, even though the board of county commissioners should be opposed to the suit; and the legislature has made it the duty of the county' attorney to prosecute, on behalf of the people, all suits, civil or criminal, arising under the laws of the state, in which the state is a party or is interested. (Gen. Stat. 1901, § 1777.)
It is claimed the county attorney delegated the authority of his office to the private counsel who did the work in the case. Manifestly this is not true. It was the county attorney’s lawsuit all the time, and it is not very important in this proceeding in error who drew the papers or led in the trial. The meritorious question is if the judgment is correct.
It is said no highway was ever established, because the security of the bond given when application was made to lay out the road was insufficient. The statute of 1868, under which the road was established, provides that one or more of the signers of the petition shall enter into a bond, with sufficient security, payable to the state of Kansas, conditioned for the payment into the treasury of the county of all costs and expenses in case the prayer of the petitioner shall not be granted. (Gen. Stat. 1868, ch. 89, § 1.) The bond was signed by one of the petitioners as principal and by another petitioner as surety. Section 6 of the act referred to seems to contemplate that there may be a single obligor in the bond, indicating that perhaps the words “with sufficient security” might mean “in a sufficient sum.” However this may be, the bond of one petitioner with one surety complies with the law, and the fact that the surety is also a petitioner does not render the bond void on its face and make the-proceeding open to collateral attack.
The statute is cited vacating roads and barring authority for opening roads which have remained unopened for seven years after orders have been made or authority has been granted for opening them. (Gen. Stat. 1901, § 6058.) This statute does not apply to a discontinuance of use after a road has been opened. The regular procedure for vacating roads must then be followed. The court found specifically that this road had been opened.
Certain evidence was tendered which the court declined to consider. It showed that in November, 1903, a petition was presented asking the board of county commissioners to submit to the electors a proposition to build a bridge at a ford on the road in controversy. Remonstrances were filed. The county surveyor recommended a change in the road, “for reasons of improvements obstructing the original location of said road as shown on plat.” The commissioners refused to submit the bridge proposition, and ordered that “the road at the place in question be not ordered open, but be and remain vacated.” It is not pointed out how this evidence could have inclined the court in the defendant’s favor. The proceeding did not start as one to vacate a road, but as one to build a bridge. No single step essential to the vacation of a road , was taken, and it is difficult to see how the proceeding could terminate in a valid judgment of vacation. Considered as the recorded opinion of the board of county commissioners upon the status of the road, the order was neither binding nor enlightening. In no other light does the evidence appear to have been relevant, and no error was committed in excluding it.
The court likewise rightfully declined to hear evidence of the value of the barricading improvements. The wrong to the public could not be palliated because of the amount of money expended by the wrong-doer in its perpetration. Perhaps the evidence might have appealed to the court’s discretion, but the court took into consideration the character and location of the offending property in exercising his discretion over the allowance of the equitable remedy sought, as the judgment clearly shows, and this was sufficient.
It was admitted upon the trial that the obstruction to travel upon the road had been maintained for more than fifteen years'. The defendant claims the statute of limitations has run against the state, that he has acquired title to the road by adverse possession, and that the state is at least estopped to clear the road of obstructions. The weight of authority, supported by the better reasoning, is- opposed to this view of the law. The courts of several states have changed their earlier rulings and adopted the modern doctrine. The question is discussed in an elaborate note in 87 Am. St. Rep. 775, where authorities are collated, and in the second edition of Elliott on Roads and Streets, section 882 et seq. (See, also, 26 L. R. A. 449, note.) This court is already committed to the doctrine that a private individual cannot obtain title to a public highway by adverse possession ; that lapse of time will not bar the remedy of the state against encroachments upon a highway; that an obstruction to the public use of a highway is a continuing nuisance; and that no equities in favor of a person committing such a nuisance can be founded upon the acquiescence of the highway or other officials, or upon their laches in taking steps to punish or abate it. (McAlpine v. Railway Co., 68 Kan. 207, 75 Pac. 73, 64 L. R. A. 85; Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973, and cases cited in those opinions.)
Error is assigned because the court denied the request for separate findings of fact and conclusions of law. The request came too late. The trial was ended and the character of the judgment indicated when the request was made. The case was in fact decided, but it was held open to enable the defendant to avoid the consequences of the decision, which only needed formal promulgation to make it conclusive.
Even if this were not true, another principle applies. The issues were few and simple. The findings embodied in the journal entry cover substantially all questions of fact essential to a decision. The court’s views of the law are so plain they cannot be mistaken. The defendant does not even suggest that he has been unable satisfactorily to present his case to this court because findings of fact and conclusions of law were not separately stated. He makes no claim of prejudice. A rule of procedure has been violated without injurious consequences. Section 140 of the civil code reads as follows:
“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.” (Gen. Stat. 1901, § 4574.)
It must appear that the denial of a request upon the trial court to state findings of fact and conclusions of law separately has prejudiced the substantial rights of the party making the request before a judgment will be reversed because of such denial." (See Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095.)
The judgment of the district court is affirmed. | [
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Per Curiam:
In the early settlement of Ford county it appears that considerable confusion resulted in land surveys in some localities for the reason that no gov ernment corner-stones could be found. This was especially true in townships 27, 28 and 29, range 22. In 1885 the county surveyor, one Mather, undertook to survey and subdivide these three townships. He started at the sixth standard parallel in Clark county and ran north on the range line between ranges 21 and 22. From the southeast corner of township 29, range 22, he ran north a distance of eighteen miles before finding any government corners or pits or mounds called for in the field-notes. Twelve miles north of the south line of Ford county he reached the Arkansas river, which he declined to consider a witness-mark on account of the shifting, sandy condition of the banks. In township 27, north of the river,' he reached the “Santa Fe Trail,” mentioned in the field-notes of the government surveys, and at' the northeast corner of township 27, range 22, he found a government stone. In the distance of eighteen miles he found, however, an excess of about thirty-six chains, amounting to almost a half mile, and he apportioned this excess from the south line of the county to the trail between these points. The range line between 22 and 23 was run in the same manner and with the same results, except that at a point eleven miles north of the south line of the county he came to Mulberry creek. The government field-notes called for a corner-stone just south of this creek, as the southwest corner of section 6, township 28, range 22. No apparent change had taken place since the original goverment survey in 1868, and he therefore took this as a true witness-mark, and proceeded to apportion the excess found by actual measurement from that point south over the eleven miles, and to apportion the remaining excess from that point north to' the trail. He then surveyed and subdivided townships 28 and 29, in range 22, except a small portion of the north part of township 28, and set up corner-stones. He was called away about this time and never returned to complete the survey and subdivision of the north tier of sections of township 28.
The Mather survey appears to have been generally acquiesced in by the public. Eoads were laid out upon petition in townships 28 and 29, fences built, hedgerows plowed, and trees set out, according to this survey. The immediate grantors of plaintiffs in error petitioned for public roads in accordance with this survey.
This controversy arises over the fact that plaintiffs •in error have taken possession of portions of tracts of land claimed by defendant in error, who brought separate actions in ejectment. These were consolidated and tried as one. The court found generally for plaintiff, and defendants seek by this proceeding to reverse the judgment.
About 1887 General Fonda, an experienced surveyor, was ordered by the county commissioners of Ford •county to make a survey of these three townships. He had previously made partial surveys with Eckert, another surveyor, and claimed to have located the northwest and northeast corners of township 28, range 22, as government corners. He relied, however, to some •extent upon information given him by Eckert as to the location of what is referred to in the evidence as the “Van Tromp” corner, at the northwest corner of township 28. The corners in dispute are the exterior corners of township 28, range 22.
Black, Ford, Eckert, Lewis and other surveyors tes-. tified, and a number of plats and surveys were introduced in evidence. Plaintiffs in error concede that the general finding of the court in favor of defendant in error concludes them unless the court erred in a matter of law, and their contention is that the record shows conclusively that township 27 was surveyed and the government corners found and proved, and that what is known as the “Fonda” corner is a government corner, and the court erred in refusing so to regard it. The claim is made that the court disregarded the rules in ^reference to surveys established by the cases of Everett v. Lusk, 19 Kan. 195, McAlpine v. Reicheneker, 27 Kan. 257, and Tarpenning v. Cannon, 28 Kan. 665, to the effect that where known government corners are shown, or, in cases where they have disappeared, if their location can be ascertained, the monuments must govern, and the field-notes of the government survey must be disregarded. The rules laid down in those cases are well-settled rules in cases of disputed surveys, but it by no means follows that the trial court erred.
It is not conceded by defendant in error that there was conclusive evidence of the actual location of any government corners in township 27, or that the “Van Tromp” corner testified to' by General Fonda was; proved to have been a government corner. On the contrary, it was contended by him that no government, corners were ever found or ascertained in the three-tiers of townships which included township 27, and several surveyors so testified. The controversy in the evidence was waged over these disputed facts, and there was, we think, sufficient evidence to warrant the finding of the court. On the other hand, the testimony of General Fonda and surveyor Black was, we think, sufficient to have sustained a finding to the contrary if the court had taken that view.
Another rule laid down in Tarpenning v. Cannon, supra, has, we think, a forceful application' to the facts and circumstances of this case. The rule is that “a boundary-line long recognized and acquiesced in is generally better evidence of where the real line should be than any survey made after the original monuments have disappeared.” (Syllabus.)
As observed, the Mather line was generally acquiesced in by the public since 1885; roads were laid out in conformity thereto on petition signed by the immediate grantors of plaintiffs in error; fire-guards-were made, fences built, trees planted and other permanent improvements made with reference to it; and courts should hesitate to change the boundaries of lands hr cases where it is conceded that the lines were never surveyed by the government except theoretically, and overturn the boundaries which have been so long recognized, unless upon the clearest kind of proof.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Robert T. Mooney and wife sued to recover damages for the breach of an alleged oral agreement to write an insurance policy covering property, consisting of a barn and certain live stock, grain and implements therein, situated on their farm in Wyandotte county. The defendants, Merriam, Ellis & Benton, are insurance agents at Kansas City, Kan,
Plaintiffs’ petition alleged that Willard Merriam had been in the insurance business for several years and that defendants succeeded to the business and were the agents of several fire-insurance companies; that in 1896, during the time Merriam conducted the business in his name, he had written a policy upon plaintiffs’ barn and its contents which had expired, and that by reason of his familiarity with plaintiffs’ business he understood the specific order for insurance which plaintiffs gave defendants, through him, on June 27, 1904. It then alleged the making of an oral contract on the last-mentioned date, whereby Merriam, for his firm, agreed to write a policy of insurance upon the barn and its contents. It also alleged the breach of the contract, the loss and destruction of the barn by fire, which occurred July 3, 1904, and claimed damages for the value of the personal property contained in the barn, the various itepis of which amounted to $573, and $1700 for the value of the barn, making a total of $2273.
The court sustained a demurrer to the evidence, which is the error complained of. Plaintiffs’ evidence was, in substance, that on June 27, 1904, Mooney had a conversation with Merriam at the bank and inquired whether his barn was insured; that Merriam replied, “Come up to the office and if it is' not we will fix it;” that at the office Merriam said, “If you haven’t been notified you ¿re surely insured, but we will look it up,” and he called to his clerk to look it up; that while the clerk was engaged in making an examination other parties came in and attracted Merriam’s attention; that Mooney, not caring to wait, told Merriam to find out whether his policy was alive or not, and if not to' make it out at once and draw on him for the premium money. The answer of Merriam was, “You may go home and rest assured that if it is not right we will make it right.” Mooney also testified as follows:
“Ques. Was anything said about the policy? Ans. Told him to make it out as had been the former policy;
same as they had heretofore been making — just as the former policy.”
“Q. Do you recollect whether he told you what company he would put it in? A. No, sir; I do not.”
T.o plaintiffs’ petition there was attached a copy of the former policy, issued by the Home Insurance Company of New York, for $2000 on the barn and $700 on the horses, grain and farm implements contained therein. The original of this policy was offered in evidence. It was signed by Willard Merriam, as agent. It was dated December 3, 1896, and expired December 3, 1901.
We think the court properly sustained the demurrer. The evidence was very unsatisfactory as to any contract having been made, but it was particularly deficient in failing to show with reasonable certainty the terms and conditions of the alleged contract. The amount of the insurance was not fixed, no premium was agreed upon, and there was no description of the property to be insured or the separate amounts which were to cover the live stock, grain, implements and buildings. Nor was any time stated when the policy was to become in force, nor the date when it was to expire.
In order that any contract can be made it is necessary that the minds of the parties shall meet upon the main proposition. In Whitman v. Milwaukee Fire Ins. Co., 128 Wis. 124, 107 N. W. 291, 5 L. R. A., n. s., 407, 116 Am. St. Rep. 25, where the action was against the company .upon an'oral contract to insure, the language of the agent was that he “ ‘would see to it, take care of it so it would be all right,’ would ‘get a policy.’ ” (Page 129.) It was held that the evidence was not sufficiently definite to show the making of a contract. In the opinion the court, following Wood v. Prussian National. Ins. Co., 99 Wis. 497, 75 N. W. 173, said:
“An oral contract of insurance, like any other, requires a meeting of minds as to all of the essential provisions, leaving nothing to be done but to .execute it. The evidence- required to show such meeting of minds, when the nature of the contract is of such an extraordinary character as that of an oral one of insurance, must necessarily be pretty definite.” (Page 130.)
Again, in Zimmermann v. Dwelling-House Ins. Co., 110 Mich. 399, 68 N. W. 215, 33 L. R. A. 698, where the question involved was whether an oral contract of insurance had been made, and the action was against the compansr instead of the agent, it was said:
“No statement was made-as to the value of the property to be insured, or for how much it was to be insured, or what rate of premium was to be paid. No date had been fixed for the commencement or termination of the risk. Giving the most liberal' construction possible to the language used, and what was done, it did not constitute a mutual and valid contract, binding upon both parties.” (Page 401.)
(To the same effect see Thayer v. Middlesex Mut. Fire Ins. Co., 27 Mass. 325; Kimball v. Lion Ins. Co., 17 Fed. 625; Mattoon Mfg. Co. v. Oshkosh Mutual Life Ins. Co., 69 Wis. 564, 35 N. W. 12.)
There was no evidence from which a jury would have been justified in finding that there was an agreement that Merriam was to select the company with which the insurance should be placed. In fact Mooney testified that he did not recollect whether Merriam told him in what company he would write the insurance. An attempt was made to connect the conversation with the former policy issued by the Home Insurance Company of New York, but, in our opinion, there is a failure of the evidence in this respect. The former policy had expired about two years and six months prior to the conversation. From the time it had expired plaintiffs had carried -no insurance on the property, nor is there any evidence that during this period there were any business relations existing between plaintiffs and Merriam or the defendants. When the former policy was issued Merriam, who was the agent, was in business alone, and the other defendants who are sued had no connection with the transaction. According to the evidence the defendants are not brokers in insurance, but agents representing certain insurance companies. The law will not permit them to represent both the insurance company and the insured in the same transaction. Plaintiffs concede this to be the law, and make the claim, as alleged in their petition, that the agreement was that Merriam was to use his own discretion and place the insurance with any company he might "select. There is no evidence in the record, of any agreement of this kind at the time it is claimed the contract sued upon was made, unless we are for some reason compelled to draw the inference that such was the understanding of the parties. This, we think, leaves entirely too much to inference instead of evidence. Mooney’s own testimony is: “Told him to make it out as had been the former policy; same as they had heretofore, been making — just as the former policy.” Literally, this would seem to mean a policy issued by the Home Insurance Company of New York which was “just as the former policy.”
Counsel for plaintiffs concede that the law is well settled that one who agrees as agent of a certain insurance company to write a policy acts for the company, and may make his principal liable for his neglect or failure, but does not become liable himself. The reason for the rule is, as above stated, that if he acts as agent of the company he cannot ,act as agent of the assured in the same transaction. (Ramspeck v. Patillo, 104 Ga. 772,. 30 S. E. 962, 42 L. R. A. 197, 69 Am. St. Rep. 197.)
The Kentucky court of appeals refused, in Continental Ins. Co. v. Jenkins, 5 Ins. L. J. 514, to enforce an oral contract for insurance which was uncertain in its terms and rested wholly upon the recollections of the parties. In the opinion it was said:
“It is certainly true that oral contracts for insurance may be enforced; but a specific and complete agreement ought to be established by a clear preponderance of the evidence, before the courts should hold the insurers bound.” (Page 516.)
And the court in the opinion observed that while less strictness of proof may be tolerated where the alleged agreement was to renew a former policy, because very frequently such agreements are made orally, yet original agreements for insurance, which are not usually made without some formality and generally are in writing, should be proved by more satisfactory evidence. (To the same effect see Strohn and another v. The Hartford Fire Insurance Company, 37 Wis. 625, 39 Am. Rep. 777.)
We think the evidence in this case was too indefinite and uncertain with reference to the subject-matter of the policy, the risk insured against, the duration of the risk, the amount of the insurance, and the premium to be paid. It left wholly to conjecture the question whether defendants were to place the policy in a certain company of which they were agents or whether they were to exercise their own discretion as to where it should be placed.
There are other questions argued, to which we deem it. unnecessary to refer, as the reasons we have mentioned compel an affirmance of the judgment, and it is so ordered. | [
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Per Curiam:
The demurrer to the second count of the answer should have been sustained. It stated no facts which constitute a defense, and as the petition stated a cause of action there is no force in the contention that the demurrer should have been carried back to the petition. However, as the answer was abandoned on the trial, and no evidence was given under it, the ruling on the demurrer was not prejudicial.
Plaintiffs are not in a position to claim prejudice' because the court permitted the answer to be amended on the trial and a new defense set up', for the reason that they made no request for a continuance over the term and the court postponed the hearing .until a later day in order to give plaintiffs an opportunity to procure evidence in rebuttal, at which time plaintiffs offered further testimony for that purpose. .
Complaint is made of the admission of certain testimony, but as no objections were offered to the ruling of the court at the time plaintiffs cannot avail themselves of any error in this respect.
The evidence of plaintiffs, in our opinion, was sufficient to support a judgment in their favor, but there was a conflict in the evidence and we are bound by the decision of the court thereon.
The judgment is affirmed. | [
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Per Curiam:
These cases were submitted with Wilkinson v. Mears, ante, p. 273, and present the same questions. For the reasons given in the opinion in that case the judgments are reversed, and the causes remanded for new trials. | [
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The opinion of the court was delivered by
Graves, J.:
Henry Brinkmeier commenced this action in the district court of Sedgwick county against «the Missouri Pacific Railway Company to recover dam.ages for personal injuries received while in its employment as a brakeman. He recovered a judgment for $6500, and the railway company brings the case here for review.
The controlling facts are not seriously disputed. The controversy arises principally upon the construction of sections 2 and 8 of the act of congress • enacted March 2, 1893, entitled “An act to promote the safety of employees and travelers upon railroads by compelling common' carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes.” These sections read:
“That on and after the first day of January, 1898, it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars.
“That any employee of any such common carrier who may be injured by any locomotive, car or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge.” (27 U. S. Stat. at L. pp. 531, 532.)
This law was amended March 2, 1903. The amendment, after the title and preliminary clause, reads:
“The provisions and requirements hereof and of said acts relating to train brakes, automatic couplers, grab-irons and the height of draw-bars shall be held to apply to all trains, locomotives, tenders, cars and similar vehicles used on any railroad engaged in interstate commerce ... in connection therewith.” (32 U. S. Stat. at L. p. 943.)
It is urged that the petition does not state a cause of action under this law; that in it there is no averment that the car which inflicted the injury was being used in moving interstate traffic, nor any statement equivalent thereto; that there are no facts stated therein which° suggest a violation of this fedéral statute, but, on the contrary, the averments clearly indicate that the pleader intended to state an ordinary case of negligence. The petition contains an allegation which reads:
“The Missouri Pacific Railway Company is and was, at all the times hereinafter mentioned, a corporation legally existing and doing business under and pursuant to the laws of the state of Missouri; and doing business as a railway company, as a common carrier, in, into and through the counties of Sedgwick and Reno, in the state of Kansas, and into the states of Colorado, Nebraska, Missouri, Arkansas, Texas, Oklahoma and Indian Territory.”
Under such an averment proof that the defendant was engaged in interstate commerce may be properly introduced. It is unnecessary specifically to mention this act of congress in a cause of action predicated thereon. It is sufficient if the pleading contain facts which would suggest to a person familiar with such act that its provisions had been violated. (Voelker v. Chicago, M. & St. P. Ry. Co., 116 Fed. 867.) All the coupling appliances of every railway company engaged in interstate commerce are subject to the provisions of this statute, and when it is shown that such a railroad company had a defective automatic coupler in use on one of its cars the additional averments necessary to state a cause of action are practically the same as those required in an action of ordinary negligence. We are unable, therefore, to hold that the petition is fatally defective as against this objection, which appears to have been first specifically presented in this court. It is expressly admitted that the car in question was engaged at the time of the injury in moving interstate traffic, and is, therefore, clearly within the provisions of this statute.
There is a sharp controversy between the parties as to what constitutes a compliance with section 2 of the federal statute hereinbefore quoted. It is insisted by the plaintiff that every car used in interstate traffic must be equipped with the prescribed appliance, and at all times thereafter must be in proper repair; that if because of any ,defect therein an employee be injured the railway company will incur the burden imposed by the provisions of section -8, however diligent it may have been in an effort to discover and repair the defect. On the other hand, it is urged that when a car has been once supplied with the appliance as required by law the company will not in case of injury be subject to the provisions of section 8, unless it has been negligent with reference to keeping such appliance in repair.
The facts upon which this controversy depends, briefly stated, are: The plaintiff was injured while attempting, as a brakeman, to couple one car to another, each of which was equipped with an automatic coupler. One of the couplers was not in repair, being out of its proper position and turned so that it would not properly meet the one on the other car. ■ The plaintiff, while attempting to adjust the defective coupler so as to make the coupling, got his foot between the couplers and received the injuries of which he complains. About a year prior to the injury the company received the ear having the defective appliance, at • which time the coupler was in perfect condition. When it became defective does not appear. So far as the evidence shows the plaintiff was the first person to notice the defect, and he made the discovery immediately before attempt ing to make the coupling. Upon these facts the trial court gave the jury instructions which read:
“You are instructed that under such act it was the duty of the defendant railway company not only originally to equip its cars with automatic couplers, as required by said act, but also to keep them in proper condition so that they could at all times be coupled or uncoupled without the necessity of the men going between the ends of the cars to assist in coupling or uncoupling them. And the railway company was bound to know at its peril that the coupler attached to the car in question was in proper working condition, and the fact that the defendant company may not have known of its defects or defective condition, if you find that it was defective, does not in any manner excuse its unlawful use.
“You are further instructed that if you find the plaintiff has established his injuries, and you find the coupler would not couple automatically by impact, he is entitled to recover for his injury, unless you further find that the plaintiff was negligent in the premises, which directly contributed toward his injury.”
Under our construction of the statute these instructions are erroneous; they impose a materially greater burden upon common carriers than the law. contemplates. The duty prescribed by them cannot be found in the express language of the statute, and therefore must have been placed therein by construction. If the language is open to construction, then it must be construed so as fairly to carry out the legislative intent as described by the act. (United States v. Southern Ry. Co., 135 Fed. 122; United States v. Lacher, 134 U. S. 624, 10 Sup. Ct. 625, 33 L. Ed. 1080.) In this connection it is proper to consider briefly some of the conditions which led up to the enactment of this statute. During the year ending June 30, 1891, thirty-seven different styles of car-couplers were in use, and during that year 2660 employees were killed and 2.6,140 injured. (6th An. Rep. Inter. Commerce Com. [1892] p. 73.) In the messages of President Harrison of 1889, 1890, 1891 and 1892 he urged the necessity .of congres sional action to ameliorate this wholesale destruction of human life. In his message of 1889 he said:
“It is competent, I think, for congress to require uniformity in the construction of cars used in interstate commerce, and the use of improved safety appliances upon such trains. Time will be necessary to make the needed changes, but an earnest and intelligent beginning should be made at once. It is a reproach to our civilization that any class of American workmen should, in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war.” (1 House Ex. Doc. p. 25.) -
On March 2, 1893, this law was enacted. These facts and the preamble, context and subject-matter of the act indicate with reasonable clearness that the real point aimed at by the statute was to eliminate from railroad service the old homicidal link and pin and to compel the adoption of a uniform class of automatic-couplers, which would reduce the loss of life among railroad employees to the minimum. In the case of Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, Mr.-Chief Justice Fuller, in speaking upon this subject, said:
“The object was to protect the lives and limbs of railroad employees by rendering it unnecessary- for a man operating the couplers to go between the ends of the cars, and that object would be defeated, not necessarily by the use of automatic couplers of different kinds, but if those different kinds would not automatically couple with each other. The point-was that the railroad companies should be compelled, respectively, to adopt devices, whatever they were, which would act so far uniformly as to eliminate the danger consequent on men going between the cars.” (Page 16.)
In the administration of this law its manifest object should be recognized and promoted by giving full force and effect to its salutary and beneficent provisions. In the performance of this duty, however, courts cannot indulge in rules of construction which change the meaning of the law from what its framers contemplated, nor which make its requirements impracticable, unreasonable or impossible to perform. In our view the law is satisfied as to any specific car whenever that car has been supplied with the prescribed appliance. Whenever an automatic coupler such as the act of congress requires is attached to a railway-car it stands in the same category as all other appliances and" instrumentalities used by railway companies. Thereafter it is the duty of. the company to use reasonable and ordinary care and diligence to keép this and all other equipments in good repair and safe condition for the use of its employees, and a failure to do so constitutes negligence. This was the law before the act of congress was passed, and that act did not change the law in this respect. It seems reasonable to assume that if congress intended to impose a special duty upon common carriers to keep a particular appliance in repair, not applicable- to all, such intent would have been expressed in clear and specific terms.
The construction given to this statute by the instructions of the trial court impose.conditions which seem to be unreasonable, and, in some instances, would be impossible to perform. Every railroad appliance must inevitably wear out, break or become defective, and no degree of foresight can anticipate the time when repairs will be needed. Any appliance, especially couplers, may get out of repair while cars are being moved in the yards, or on side-tracks in making up a train, or while moving in a train between stations. Railroad companies are compelled to rely for information concerning defects in their appliances almost wholly upon the employees who use them. Necessarily it takes time to make repairs; no degree of diligence,- within the limits of a reasonable possibility, would be sufficient to enable a railroad at all times and under all circumstances to keep its car-couplers in such a state of repair as to prevent a brakeman disposed to encounter danger, as the plaintiff did in this case, from receiving injury. So far as the evidence shows the coupler in question in this case may have been thrown out of place by a jam received immediately before the plaintiff discovered it, in which case it would have been impossible for the company to have known of and repaired the defect. Statutes should not be extended by construction so as to produce such unreasonable results.
No case has been cited which can be regarded as an authority in support of the construction insisted upon. In the case of United States v. Southern Ry. Co., 135 Fed. 122, this question was discussed, and the opinion seems to sustain the view here contended for by the plaintiff, but in that case it was found by the court that the railroad company had been guilty of gross negligence in not discovering and repairing the defect which caused the injury. The finding made the discussion wholly unnecessary to the decision of the case, and weakens its force as an authority. That decision was considered by the United States district court of Colorado quite recently, in the case of United States v. Atchison, T. & S. F. Ry. Co., 150 Fed. 442, in which it was said that the conclusion there reached is exceptional, a departure from the general and better rule, and has been sharply criticized. In the case last cited the court said in its instructions, which are not reported :
“These couplings will get out of repair, and it takes time to repair them. It takes time to discover whether or not they are out of repair. It 'is the duty of the railroad companies to use prudence and the ordinary diligence of a business man, keeping in view the purposes of this act, to keep these couplings in repair. . . . The act, construed in an intelligent and practical way, would not impose on the railroad company the absolute duty, every instant, to have this coupling so that it would work automatically. If a coupling is out of repair, and the railway company handling the car then uses ordinary and reasonable care, considering the facilities at hand, to repair the coupling and put it in repair, so that it would comply with the act, then it is not liable.”
We think the position' of the Colorado court more reasonable and less liable to lead to impracticable results. The burden of proof was upon the plaintiff to show that the defendant was negligent in having this defective appliance in use. Upon this question there is a total failure of proof. The car was placed at the salt-works two days before the injury. It was brought from there in charge of the plaintiff, as brakeman. He did not discover this defect until immediately prior to the accident. There is no evidence as to when the car was last inspected, and nothing whatever appears to indicate negligence on. the part of the defendant.
The jury were told by the instructions of the court that if the coupler was defective, and the plaintiff was thereby injured, a verdict against the defendant would be proper, regárdless of whether it had been negligent' or not. This was erroneous.
The judgment is reversed, with direction to grant a new trial and proceed in accordance with the. views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
This was an action by George Caple, as guardian of Frank L. Mitchell, to recover a tract of land in Franklin county from Lucy A. Drew. Mitchell, while a minor, inherited the land, and in 1876 his sister, Anna A. Weegar, was appointed guardian of his estaté, and under the direction of the probate court a sale of the land was made to Levi H. Weegar, husband of the guardian. Later, in December, 1878, the lan-d was transferred to John J. Drew, and upon his death it descended to his widow, Lucy A. Drew. In his petition Caple alleged that on June 6, 190L, Mitchell was adjudged to be of unsound mind, and that he, Caple, was appointed guardian of Mitchell, and as such guardian he brought this action to recover the land. In her answer Lucy A. Drew denied, generally, the allegations of the petition as to title, and. also all other averments contained therein, except that she was in possession of the land. She also alleged that the action was barred by several of the statutory limitations. In verifying her answer she stated under oath : ‘ ‘ She has read over her within and foregoing answer, and knows the contents thereof, and that the same are true as therein alleged.”
The validity of Caple’s appointment as guardian is a vital question in the case. If it was not valid, he has no right to maintain the action. His appointment was alleged in his petition, and if the answer is a verified denial of the appointment and authority his guardianship and right to maintain the action is in issue. (Civil Code, §108; Gen. Stat. 1901, §4542.) It is contended that, within the rule of Kimble v. Bunny, 61 Kan. 66*5, 60 Pac. 746, the answer was not so verified as to put the appointment in issue. The rule of that case does not control here. There the affidavit was that the facts stated in the answer were true, but as no facts were stated in the answer it was held that the affidavit was ineffectual. In this case the affiant swears that the contents of the answer are true, which is in effect a statement that the denials of the answer are true. The code contemplates that denials may be verified, as it provides that certain allegations shall be taken as true, “unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” In the case above cited it was suggested that the verification would have been sufficient if it had contained a statement that the denials of the answer were true. Here there was a verified denial of the allegations of appointment and authority, which was sufficient to meet the requirements of the code, and to put those matters in issue.
On the plaintiff’s testimony the court held the appointment to be void and directed a verdict in favor •of the defendant. Upon an affidavit alleging that Mitchell was of unsound mind and incapable of managing his affairs an inquest as to his condition was held on June 6, 1901. Instead of following the provisions of the act of 1901, then in force (Gen. Stat. 1901, §§6570-6582), a jury of six persons was impaneled, and the following verdict returned :
“We, the undersigned, jurors in the case of Frank Mitchell, having heard the evidence in the case, are satisfied that said Frank Mitchell is feeble in mind, incapable of managing business affairs ; is a typical imbecile, a resident of the state of Kansas and county of Franklin ; that his age is thirty-nine years ; that his disease is of lifetime duration, dating from infancy ; that the cause is supposed to be heredity; that the disease is hereditary; that he is'not subject to epilepsy ; that he does not manifest homicidal or suicidal tendencies.”
In the order appointing Caple guardian the probate court recites that Mitchell has been adjudged feeble-minded and incapable of managing his affairs, and that Caple is appointed to care for and protect the estate, rights and property of “said feeble-minded.” In the inquiry as to the condition of Mitchell the procedure of an inquest in lunacy was quite closely followed, but, as has been seen, Mitchell was not found to be insane and a fit person to be sent to the hospital for the insane. Inquiries as to mental sound ness, and the appointment of guardians of those who are insane, at the time of this inquest were governed by the act of 1901. That is the later act, and as it covers the subject of insanity, and the appointment of guardians of those determined to be insane, it to that extent, at least, supplants and sets aside the provisions of the earlier act. In the act of 1901 insanity is specifically defined as follows :
“The word ‘insane’ in this act shall be construed to mean any person whose mind, by reason of brain-sickness, has become unsound, rendering such person incapable of managing or caring for his own estate •or rendering him dangerous to himself or others, or who is in such condition of mind or body as to be a fit subject for care and treatment in a hospital for brain disease or insanity. No person idiotic from birth, or whose mental development was arrested by disease or physical injury prior to the age of puberty, and no person who is afflicted with simple epilepsy, shall be regarded as insane, unless the manifestations of abnormal excitability, violence or homicidal or suicidal impulses are such as to render his confinement in a hospital for the afflicted as herein provided a proper precaution to prevent him from injuring others or himself.” (Gen. Stat. 1901, §6570.)
Within this definition Mitchell cannot be regarded as insane, and, in fact, the plaintiff concedes that the provisions of the act of 1901 do not warrant his appointment as guardian for Mitchell. He does claim, however, that the earlier statute justified the action taken in the probate court. If those provisions had any force or application to the case in hand they would furnish no authority for Caple’s appointment. In that act the precedent requirements for the appointment of a guardian were substantially the same as those of the later act, so far as the findings of mental condition are concerned. The essential fea tures of the findings, and the forms of the verdict, are prescribed in both statutes, and each requires a finding that the person is insane and a fit subject to be sent to a hospital or asylum for the insane. (Gen. Stat. 1901, §§3945, 6578.) The earlier statute gives no authority to appoint a guardian for feeble-minded persons. It provides :
“And if it be found by the jury that the subject of the inquiry is of unsound mind* or an habitual drunkard and incapable of managing his or her affairs, the court shall appoint a guardian of the person and estate of such person.” (Gen. Stat. 1901, §3945.)
The provisions with reference to a guardian’s bond (§ 3949) plainly recognize that a guardian may be appointed for only two classes of persons — one, the insane, and the other, habitual drunkards incapable of managing their affairs. Mitchell was not found to be in either class, and so we see that if these provisions were in force they wofild have given the probate court no authority to make the appointment that was made. The later act, however, is the governing one, and when the legislature fixes the ground, and prescribes the methods, for the appointment of guardians for incapable persons a compliance with the statute is essential to the validity of an appointment. Here the finding was that Mitchell was of feeble mind —a condition far short of insanity, as defined by the statute. • The further statement that he was a typical imbecile adds little, if anything, to the statement that he was feeble in mind. An imbecile, as the term is ordinarily used and understood, is one who is mentally weak, rather than insane, and the qualifying word “typical” was probably intended to mean that it was a characteristic or common example of imbecility— that it was not abnormal or unusual in degree, and that it did not belong to other types of mental incapacity, such as idiocy or insanity.
The recent case of Martin v. Stewart, 67 Kan. 424, is a pertinent authority that feebleness of mind is not insanity, and that in cases of this kind the probate court is without authority to appoint a guardian of the person and estate of the subject of the inquiry until there has been a finding that he is insane. There being a lack of authority iñ the probate court, the appointment is without validity and Caple without right to maintain the action. See, also, Matter of Clark, 175 N. Y. 139, 67 N. E. 212; Lindsley’s Case, 44 N. J. Eq. 564, 15 Atl. 1, 6 Am. St. Rep. 913; Case of John Beaumont, 1 Whart. 52, 29 Am. Dec. 33; Meurer’s Appeals, 119 Pa. St. 115, 12 Atl. 868.
The conclusion reached makes the other questions argued immaterial; and, as we find no error in the record, the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
The Lehmann-Higginson Grocer Company sued the Nixa Canning Company on a claim that a quantity of canned apples purchased by the former from the latter under an implied warranty of merchantability had proved worthless. Plaintiff recovered a judgment which defendant seeks by this proceeding to reverse. The trial court made detailed findings of fact, which generally tended to support the plaintiff’s claim, and held the defendant liable for a breach of warranty.
The principal question presented on review is whether, under the findings, the law implied a warranty that the goods sold were suitable for food. So far as necessary to the determination of this question, the facts found were as follows : The apples were put up in cans by the defendant for the purpose of selling them to merchants, and were bought by plaintiff, as' defendant knew, to be resold to its customers. The sale was made by sample, the sample cans being opened and examined by the plaintiffs before the purchase. The samples were apparently sound and fit, and were not in fact subject to any defect that could have been discovered by any reasonable examination. The goods sold were in all respects like the sample, but by reason of the character of certain substances that had been employed in the canning process they spoiled and became unmerchantable within a few months, and before they could have been disposed of in the usual course of trade.
Plaintiff in error contends that where goods are sold by sample there is, in effect, an express warranty of conformity to the sample, and no other warranty as to quality can be implied. This may be granted to be the ordinary rule as to transactions between merchants, but where the seller is also the manufacturer, there is an implied warranty that the sample and goods sold are alike free from latent defects not discoverable upon ordinary examination. (15 A. & E. Encycl. of L., 2d ed., 1227; 2 Mech. Sales, §§ 1329, 1331, 1346; Price v. Kohn, 99 Ill. App. 115.) This exception to the general rule is not denied ; but it is argued that the defendant was not a manufacturer ; that the business of putting up apples in cans for sale is not one of manufacturing anything. There is a lack of harmony in the judicial decisions as to just what constitutes “manufacturing.” This is abundantly demonstrated by the note to Williams v. Warren, 64 L. R. A. (N. H.) 33, in which the cases are collected and reviewed. But it is wholly unnecessary to consider whether the term “manufacturing” could be aptly applied to the business of defendant in any other connection than that here presented. The only pertinent inquiry is whether defendant was a manufacturer within the reason and meaning of the doctrine holding the sellers of goods of their own making to a higher degree of accountability than other merchants. The reasons for such distinction were clearly stated in Kellogg Bridge Company v. Hamilton, 110 U. S. 108, 3 Sup. Ct. 537, 28 L. Ed. 86, in these words :
“In ordinary sales the buyer has an opportunity of inspecting the article sold ; and the seller not being the maker, and therefore having no special or technical knowledge of the mode in which it was made, the parties stand upon grounds of substantial equality. But when the seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect caused by such process and against which reasonable diligence might have guarded. This presumption is justified, in part, by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, or when, from the situation, inspection is impracticable or useless, it is unreasonable to suppose that he bought on his own judgment, or that he did not rely on the judgment of the seller as to latent defects of which the latter, if he used due care, must have been informed during the process of manufacture.”
These reasons apply with as much force to one who undertakes to prepare fruits or other natural products so as to render them suitable articles of merchandise as to one who is a manufacturer within the strictest meaning of the term. He alone knows the details of the process employed; he alone controls it; and he must be deemed to represent that it is reasonably adapted to the end sought, and results in a product free from hidden defects. The buyer has no means of information, as to such matters and of necessity must rely upon the seller’s judgment. In Copas v. Angle-American Provision Co., 73 Mich. 541, 548, 41 N. W. 690, it was said :
“The sale of hams or bacon, which is the curing of pork in a particular manner, involves . . . the same principles of law which are applicable to manufactured articles, involving knowledge, skill, and fitness on the part of the manufacturer, who is also the seller, where he manufactures- and sells his own goods.”
In Leggett v. Young, 29 N. B. 675, it was held that in a sale of canned lobster to a merchant by sample there is an implied warranty that it is merchantable and fit for food.
We but follow the line marked out by the authorities, and certainly do no injustice, in holding that in selling to plaintiff by sample canned apples of its own packing, both the samples and the goods sold being apparently sound and wholesome, the defendant by implication warranted that the process it employed did not involve the use of any deleterious substance the presence of which could not be detected by any reasonable examination, but which would in a short time render the fruit unfit for food, unmerchantable, and worthless. The court having found that there was a breach of such warranty, the plaintiff was entitled to judgment.
Complaint is made of the admission of evidence upon which a finding was made of a local custom by which hermetically sealed canned goods were understood to be warranted as merchantable for six months from the date of sale, but as a judgment for plaintiff was required by the findings, without regard to the existence of such custom, it is not necessary to pass upon the question so raised.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In this case the plaintiff brought suit in the city court of Atchison to recover an amount due for boring three wells upon the defendant’s farm. His bill of particulars prayed judgment for a sum within the jurisdiction of the court. After' a judgment in favor of the plaintiff the defendant appealed to the district court. The plaintiff then amended his bill of particulars by presenting in one count a claim based upon contract for a sum still within the jurisdiction of the city court, and in another count a claim for a sum beyond the jurisdiction of the city court, arising upon quantum meruit. Each count contained an independent prayer for relief. No attack was made upon the amended bill of particulars, by motion or demurrer, and the defendant answered to the merits. The whole matter was tried before a jury. Before a final submission of the cause the plaintiff withdrew his claim for boring one of the wells, whereby the amount of recovery possible under the second count was reduced below $300. The jury found specially the existence of a separate contract for boring each of the two wells remaining in controversy, and found a general' verdict in favor of the plaintiff for a sum which, allowing for some uncertainty as to the time for which interest might be computed, corresponds approximately with plaintiff’s claim under the first count of the amended bill of particulars. Challenges of the jurisdiction of the district court made by the defendant at various stages of the proceeding after issue joined were overruled, and the conduct of the court in so doing is now assigned as error.
The district court had jurisdiction of the case after the appeal had been taken and until the plaintiff’s pleading was amended. The only question is whether or not such jurisdiction was altogether abrogated because of the amount of the claim made in the second count of the amended bill of particulars. It may be conceded that the district court had no authority to try the cause of action presented by that count, but after such concession no reason appears for ousting it of jurisdiction over the subject-matter of the first count. The first count was separate and distinct from the other, was complete in itself, and asked for no relief which the court could not grant. The second count might have been stricken out without affecting the first one in any way, and, hence, jurisdiction to try the issues presented by the first count and the answer was not defeated by the enlarged claims presented in the other.
“Where the court has cognizance of the cause made by the complaint as first filed, the jurisdiction will not be ousted by an amendment averring additional matter which the court is not competent to consider; but such new matter should be disregarded as surplusage.” (Finch v. Baskerville, 85 N. C. 205.)
This being true, there is- no occasion to consider what effect reducing the claim presented by the second count may have had upon jurisdiction ; and, since the special findings and general verdict show that recovery was had under the first count only, it is now immaterial that the court undertook to investigate a matter beyond its jurisdiction.
The action was founded upon a claim by a contractor for improvements made upon land owned by the defendant. Section 5119 of the General Statutes of 1901 provides that no owner shall be liable to such an action until the expiration of sixty days from the time the labor was performed, or the material furnished. From the amended bill of particulars it appeared that the suit was prematurely brought, at least as to a portion of the claim, and the defendant argues that such fact deprived the court of power to proceed. Such, however, is not the law. Prematurity in bringing suit is not a jurisdictional matter. As stated at page 746 of volume 1 of the Cyclopedia of Law and Procedure :
“It has been held that where defendant is sued on a demand before it is due, and pleads in chief, it is too late afterward to make objection that the action is premature.”
Besides this, the jury found specially that the two wells for which recovery was allowed were completed more than sixty days prior to the commencement of suit; and, as before stated, the other well was dismissed from the controversy. In an action involving separable claims the right to try those upon which a cause of action has accrued is not affected by the fact that the suit is prematurely brought as to others. (1 Cyc. 745.) Therefore, notwithstanding the character of the claim as originally presented, the defendant cannot complain of the verdict returned and the judgment rendered.
Other questions relating to the trial of the issue tendered by the second count of the amended bill of particulars are discussed in the defendant’s brief, but because of the interpretation which must be given to the special findings and the general verdict they are no longer of consequence. Nothing else of sufficient importance to require a new trial is presented, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
In 1876 a tract of land was conveyed to George C. Holmes and Susan M. Holmes, who were then husband and wife. In 1896, after the act abolishing survivorship had been passed, Susan M Holmes died, leaving George C. Holmes surviving her, and the question has arisen whether the heirs of Susan M. Holmes inherited any interest in the land.
It is well settled that until the passage of the act abolishing survivorship estates in entirety, as recognized at the common law, existed in Kansas. (Baker v. Stewart, 40 Kan. 442, 19 Pac. 904, 2 L. R. A. 434, 10 Am. St. Rep. 213; Shinn v. Shinn, 42 id. 1, 21 Pac. 813, 4 L. R. A. 224; Simons v. McLain, 51 id. 153, 32 Pac. 919.) The doctrine of these cases is that by virtue of the purchase and conveyance each was seized with an indivisible entirety, each took a present vested estate, and, as each owned the whole, upon the death of one the survivor necessarily retained the exclusive title to the land. Nothing descended to the surviving husband, nor did he acquire any new title or estate by the death of his wife. He took the whole estate by the original conveyance, and, having outlived his wife, continued to hold the entire estate. The husband and wife each held a present vested estate which could not, of course, be devested by an act of the legislature, and hence the title of George C. Holmes, the surviving husband, was not affected by chapter 203 of the Laws of 1891, the act abolishing survivorship. (Zorntlein v. Bram, 100 N. Y. 12, 2 N. E. 38; Elliott v. Nichols, 67 Ky. 502; Pease v. Whitman, 182 Mass. 363, 65 N. E. 795; Stilphen v. Stilphen, 65 N. H. 126, 23 Atl. 79; Myers v. Reed, 17 Fed. [C. C.] 401.)
Language was used in the opinion in Stewart v. Thomas, 64 Kan. 511, 68 Pao. 70, with reference to the nature of the estate in entirety which has created some doubt as to the position of the court on the subject, but there was no intention to overrule or modify the former cases as to the existence or character of estates in entirety. The only question decided in that case, as the syllabus of the opinion. shows, was that the title of the act of 1891 abolishing survivorship is sufficiently comprehensive to include estates in entirety. In this case the district court held that estates in entirety existed in Kansas prior to the act of 1891, and that such estates when vested could not be devested by subsequent legislation. Its judgment is affirmed. | [
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The opinion of the court was delivered by
Cunningham, J. :
The defendant in error had judgment against the Chicago, Rock Island & Pacific Railway Company in the court below for damages because of the killing of some cattle by a train on a crossing. Omitting the more formal portions, the negligence of the company was stated in the following words of the petition :
“That the line of railway owned and operated by the said defendant as aforesaid runs diagonally through and near the southwest corner of section 10, township 7, range 2 east, in the said Olay county, Kansas ; that there are public highways running upon and along the south and west lines of said section 10, both of which highways said line of railway intersects and crosses ; that on the 28th day of December, 1902, and at an hour, when no trains of the defendant were due to pass said points, to wit, at about the hour of 5 :45 p. m. of said day, said plaintiff, by his agent and employee, A. Morissette, jr., was engaged in driving a large herd of cattle, consisting of about 112 head, along the highway on the south side of said section 10, thence north along the said highway on the west side of said section 10 and over and across the railroad-crossings above mentioned; and after having crossed the railroad on the south side of said section 10, and while proceeding to drive said herd over and across said railroad on the west side of said section 10, the defendant company carelessly, negligently and wilfully ran one of its trains upon and over said herd of cattle, thereby killing, maiming and injuring several of them, as hereinafter more specifically mentioned and described ; that the train of said defendant so causing said injury and damage was about one hour late, or behind its schedule time, was running northwest at a high rate of speed, to wit, about sixty miles an hour, and the defendant’s engineer in charge of said engine attached to said train and the defendant’s employees having charge and control of said train so carelessly, negligently and wantonly operated said engine and train while approaching said crossing on said public highway as to cause the injuries and damage herein complained of, without any fault or negligence on the part of this plaintiff, or his agent or employee ; that, approaching said crossing from the southeast, said line of railway, for a distance of about three miles, is practically on a straight line, and the said crossing was in plain view of the engineer approaching from the southeast for a long distance ; that there are three highway crossings within a distance of three miles southeast from the point where the said injuries were committed, and plaintiff avers that no whistle was sounded within eighty rods from the crossing where said injuries were caused, nor was any bell rung for said crossing, nor was any -whistle sounded for the highway crossing on the south side of said section 10, nor at the highway crossing next southeast of the same ; that when plaintiff’s said agent and employee, A. Morissette, jr., approached said highway crossing on the south side of said section 10', and before driving said herd of cattle across defendant’s railroad-track at that point, he stopped, looked and listened for possible approaching trains, and was unable to hear or see anything indicating a train approaching on said railroad from either direction ; that he used like care in approaching the crossing on the west side of section 10 ; but defendant’s said train’s being run at such a high rate of speed, as aforesaid, and without. any warning of bell, whistle, or otherwise, as aforesaid, he was unable, by the most diligent efforts, to prevent the injuries herein set forth.”
Several quite serious points are raised by the assignments of error and argued in the brief of plaintiff in error. We choose to consider but one. The defendant below asked the court- to give the following instruction :
“The only allegation of negligence which you are to consider in this case is the alleged negligence on the part of the defendant that no whistle was sounded within eighty rods from where said injuries were caused, nor any bell rung for said crossing.”
This was refused, and instead the court gave at the request of the defendant in error the following instruction :
“If the engineer of the defendant company could by the use of ordinary prudence see, or, seeing the stock in question on the highway crossing, without danger stop the train and avoid striking the plaintiff’s cattle, he is required under the law of this state to do so ; and in determining whether or not he could have done so, the jury should take into consideration all the surroundings, conditions, facts and-circumstances shown by the evidence.”
Upon his own motion the court gave this further instruction :
“I instruct you that the burden of proof rests upon the plaintiff, and to entitle him to recover for the injury he sustained by this accident he must prove to your satisfaction, by a preponderance of the evidence on his part, that such injury arose from the negligence of the defendant railway company arising directly from a failure to blow the whistle eighty x’ods southeast of the crossing at which the injury occurred, or arose from a neglect by the employees of the railway company in the management of the train, whereby the animals were killed, when they knew, or reasonably could have known, that they would be struck by the train,-and when they could reasonably have avoided striking the animals.”
It is claimed that the action of the court in the above respects is erroneous because the jury were thereby permitted to find for the plaintiff on some' other theory of negligence than the failure to sound the whistle or ring the bell, as provided by the statute, which, as plaintiff in error claims, is the only negligence counted upon in the petition. The defendant in error frankly confesses that “if the allegations of negligence contained in the petition are all excluded save the failure to blow the whistle at the crossing or crossings, the error complained of,” to wit, the action of the court relative to the above instructions, “might be well founded.” Construing the alie-: gations of this petition as to the negligence relied upon most strongly against the pleader, which is the rule that must be adopted, we are constrained to hold that the most that can be said of them is that they relate only to the failure in the performance of the statutory requirements relative to the sounding of the whistle and the ringing of the bell. A general allegation is contained in the former part of the petition that “the defendant company carelessly, negligently and wilfully ran one of its trains upon and over said herd of cattle, thereby killing, maiming and injuring several of them, as hereinafter more specifically mentioned and described,” so that this general allegation of careless, negligent and wilful mismanagement must be limited to the specific matters thereinafter set out. Referring to those specific matters, we find nothing in the petition specifically mentioned except the failure to sound the whistle or ring the bell eighty rods from the several crossings.
The plaintiff in error, in making up and presenting the issues, had a right to rely on this specific statement of the claimed acts of negligence; had a right to take the plaintiff at his word, where he voluntarily limited his general allegation of negligence by the specific mention of the acts counted upon. It is true that there is an allegation that the train was running at a high rate of speed, to wit, about sixty miles an hour, but the running of a train at this rate of speed is not per se negligence, and no special reasons are assigned why at this particular time and place it amounted to negligence.
Having the lines of battle thus laid out in the pleadings the railroad company had a right to have the jury’s attention confined to, and their award made solely upon, the issues thus tendered, and had a right to have the instructions which it asked to that end given. By its refusal so to instruct, and by its giving the other two instructions and thus permitting the jury to enlarge the field of inquiry, the court erred, to the prejudice of the plaintiff in error.
SYLLABUS BY THE COURT.
Practice, District Court — Finding—Defendant Not Estopped. Under the facts of this case, it is held, that the defendant did not acquiesce in an enlargement of the issues by plaintiff’s evidence, and had the right to require that no issue except that presented by the pleadings be submitted to the jury.
We are much more easily led to the conclusion that this error worked prejudice to the company from the fact that, under all the evidence, it is a very grave question whether the plaintiff is entitled to recover at all, by reason of the contributory negligence of his agent, who was in charge of the cattle at the time the injury was inflicted ; but as this case will be remanded for another trial this and some other suggested errors are not now considered.
The judgment of the court below is reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
In January, 1892, Mary G. McCormick, fourteen years of age, lived with her mother upon a tract of ground containing eleven acres, which she owned, having inherited it from her father. In that month her mother was married to William Worrell. From the time of the marriage Worrell and his wife lived upon the land referred to, Mary McCormick living with them. This situation continued until a little after April 30, 1901, when Worrell moved from it, Miss McCormick having written him a letter in effect asking payment of rent for the time he had oc cupied it. Soon afterward he died, and, an administrator having been appointed, Miss McCormick filed a claim against the estate for rent from January., 1892. The claim was allowed by the probate court, and an appeal was taken to the district court. A jury trial resulted in a judgment for the claimant in the sum of $638 for the use of the property from the time she attained her majority, the court by its instructions having limited the recovery to that period. From this judgment the administrator prosecutes error.
The principal question presented is whether the evidence in behalf of plaintiff was sufficient to take the case to the jury. The facts shown, so far as necessary to the decision of this question, were substantially as follows : The land was situated about half a mile from the railroad station of Zeandale. It included alfalfa ground, pasture, orchard, and garden. The improvements included an eight-room dwelling-house, a barn, and other outbuildings. The rental value was esti: mated by the witnesses to be from ten dollars to fourteen dollars a month. Plaintiff lived with her mother and stepfather as one of the family during the period in question, except for about eighteen months, during which time she was absent at school and on visits. She paid the taxes, insurance, and cost of painting and other repairs. She paid no board. She occupied exclusively one room. She and her mother did all the housework while she was at home. During several years a nephew of Worrell also formed a part of the family. At one time during plaintiff's minority two rooms were occupied by a Mr. Coons, and rent for them was paid to her guardian. Practically, but not absolutely, all the produce of the place was used there. Some of it was marketed. Upon one occasion a small amount of fruit was sold and the money given to plaintiff. Worrell took charge of, and managed, the property. He supplied the table for the family, but contributed nothing to the support or to the expense of plaintiff when she was away from home. . A corn-crib on the place was used by him each year for storing alfalfa. Upon one occasion plaintiff wished to use it for some of her own corn, raised elsewhere, but he said that he would rather pay her five dollars than have this done, and did so, continuing to use the crib himself. The stock kept upon the place included two horses belonging to Worrell, one belonging to Mrs. Worrell, and, for a part of the time, one belonging to plaintiff. There was no agreement, oral or written, for the payment of rent, and had never been any talk about it. Plaintiff never made any claim for rent until the writing of the letter already mentioned. She testified, however, that she always expected to receive payment from her stepfather for the use of the property.
Plaintiff’s claim for rent is not based upon the theory that there was an understanding between her and the defendant’s decedent for its payment — that an implied contract existed that differed from an express contract only in that it required to be proved inferentially by circumstantial evidence instead of directly by positive testimony. She rests her claim upon a gmts'i-contract, or contract implied in law, as distinguished from a contract implied in fact. Her contention is that the law imposed the obligation to pay rent, irrespective of the intentions of her stepfather in the matter. It is said in Keener on Quasi-contracts:
“The term ‘contract implied in law’ is used, however, to denote, not the nature of the evidence by which the claim of the plaintiff is to be established, but the source of the obligation itself. It is a term used to coyer a class of obligations where the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him, notwithstanding the absence of intention on his part, and in many cases in-spite of his actual dissent.” (Page 5. See, also, 15 A. & E. Encycl. of L., 2d ed., 1078.)
It is the contention of the administrator, the plaintiff in error, that the relation of landlord and tenant did not exist, either in virtue of any understanding of the parties, or of an obligation imposed by law ; that the evidence, showing as it does that the plaintiff was a member of the family that occupied the premises, is inconsistent with such a relation. Reliance is placed upon a series of Kansas cases, of which Ayres v. Hull, 5 Kan. 419, is the earliest. It was there said :
“It may be stated, as a general principle of almost universal application, that when one person does work for another, with the knowledge and approbation of that other, the law will imply a promise on the part of the person benefited thereby, to make a reasonable compensation therefor. But, if the relation of the parties is such as to show some other inducement than a pecuniary one for the labor, then the law will not imply a promise to pay for such services. . . . So many considerations, other than those of a mere pecuniary character, enter into the minds of persons closely related in making up the family, that it would be both violent and dangerous to infer a promise from the kindly and sociable acts growing out of such relations. The family relations are too sacred to be invaded and disturbed by presumptions of law that are reasonable and proper when applied to the acts of strangers.” (Pages 421, 424.)
The statute (Gen. Stat. 1901, §3864) provides that “the occupant without special contract, of any lands, shall be liable for the rent to any person entitled thereto.” The evidence is capable of an interpretation showing such an occupancy of plaintiff’s land by defendant’s decedent as to cause him to be liable to her for rent under the terms of this statute, unless “the relation of the parties is such as to show some other inducement than a pecuniary one” for plaintiff’s permitting its use. Whether such an inducement is shown in this case is a question of fact. Some portions of the testimony tend strongly to suggest a purely domestic arrangement between the parties, in disregard of all business considerations. Other portions have a somewhat contrary tendency. Considered as a whole, we do not think it necessarily negatives the idea of a legal obligation on the part of the defendant to pay rent. The situation is readily to be distinguished from that arising where, after some family disagreement, by an obvious afterthought, a member on the one hand seeks to enforce a charge for his services, or on the other is sought to be held liable for the payment of board. There the usual and natural motives of mutual helpfulness sufficiently account for the services rendered and benefits received. But it is neither usual nor natural that a young girl should, without expectation of compensation, furnish to her stepfather, in addition to her own labor, a place of residence, with farm land, orchard and garden that would go far toward affording support for his entire family, she herself continuing to bear the whole burden of taxes, insurance, and repairs. If the tract had been still larger, and had yielded considerable produce for sale, and the stepfather had received the income derived from that source, it would hardly be contended that he should not be held for rent, whatever use he might have made of the money. Yet the difference between such a state of facts and that here presented is one of degree rather than of kind. Thé ■question whether under all the circumstances a tenancy existed was rightfully submitted to the jury.
Plaintiff in error cites as a case in point Collyer v. Collyer, 113 N. Y. 442, 21 N. E. 114, where a judgment upon an implied contract for rent was reversed. That the facts were not closely similar to those of the case at bar appears from this language of the opinion :
“The plaintiff gave proof, showing, beyond all question, that she (defendant) did not suspect that she was there as his tenant, under obligation to pay rent, and the circumstances were such that he must have known how she understood it.”
An Indiana case, Tinder v. Davis et al., 88 Ind. 99, is cited as bearing upon the interpretation of the statute above quoted, which was adopted from that state. But the point decided is merely that the statute does not operate to establish a contractual relation between the owner of land who has leased it by express contract to a tenant, and a member of the family of such tenant. In volume 1 of Taylor’s Landlord and Tenant, ninth edition, section 25, it is said:
“Nor will the relation of landlord and tenant be inferred from occupation, if the relative position of the parties to each other can, under the circumstances of the case, be referred to any other distinct cause.” (See, also, Hardin v. Pulley, 79 Ala. 381; Curtis v. Hollenbeck, 92 Ill. App. 34.)
In the present case the question whether the occupancy of the property is capable of being sufficiently accounted for by the relation of the parties is one of fact to be determined by the jury, depending upon the reasonableness of the supposition, under all the circumstances disclosed by the evidence, that plaintiff intended gratuitously to contribute its use to the support of the family. The case of Chamberlin v Donahue, 44 Vt. 57, well illustrates the principle that, in spite of strong evidence against tenancy, the ultimate decision of the question is for the jury. In Knox v. Singmaster, 75 Iowa, 64, 39 N. W. 183, a minor daughter was permitted to maintain an action against her father for the use of a farm which he occupied without any agreement as to rents, during a time while she lived with him upon it, but the questions here involved were not discussed. We think the conclusion we have announced is not out of harmony with the authorities.
It is'also assigned as error that the trial court permitted the plaintiff to testify that it was always her intention to make some charge and to receive some rent for the property. Her intention was a material matter in the inquiry. If she had never had any intention of exacting, or expectation of receiving, rent she could not have recovered. The objection made to her testimony in this regard runs rather to its credibility than to its competency, and no sufficient ground is shown for its rejection.
The instructions given are complained of, but upon the same general grounds upon which it is urged that the demurrer to the evidence should have been sustained. The court instructed in substance that the plaintiff, in order to recover, must show that Worrell occupied the premises with the consent of the plaintiff ; that there was no agreement as to whether rent should be paid or not; that plaintiff expected to receive rent, and that, in view of the conduct and relations of the parties and the circumstances proved upon the trial, Worrell did not have good reason to believe that he was not to pay rent. In this no error is perceived.
A final assignment of error is based upon the statute of limitations. The plaintiff was permitted to recover rent for a period exceeding four years. It is contended that as the action was upon an implied contract the three-year statute applied, and that no recovery should have been allowed based upon any occupancy of the premises for any time more than three years prior to the commencement of the action. Against this contention defendant in error invokes the principle that, in the absence of an agreement or custom to the contrary, rent is not due until the end of the term contracted for, and argues that the parties are to be treated as having contracted for the occupancy of the premises for a fixed term — that is, for the full period during which they were actually occupied. This principle has no application here, for the reason that the law does not imply a contract for the use of the property for a definite term; it merely imposes a duty to pay for the use of the property for the time it has been occupied.
It is also urged that within the reasoning employed in Grisham v. Lee, 61 Kan. 533, 60 Pac. 312, a continuous contract for the hiring of the property should be deemed to have existed, so that the statute would not begin to run against an action for the rent until the occupancy ceased. In the case referred to an employee was permitted to recover for services extending over a period of some six years, upon the theory that the employment was continuous. But there an actual contract was made by the agreement of the parties, no time of payment, however, being fixed, and it was properly left to the jury to say whether it was a continuous one. Here there was no contract but the constructive one resulting from operation of law. It arose not from an agreement to pay rent for such period as the property might thereafter be occupied, but from the legal obligation to pay for such benefits as had already been received. Such a contract, or quasi-contract, is not prospective in its operation. It does not contemplate a future occupation of the property, and cannot be continuous in the sense in which the term is used in this connection. At any moment an action may be brought upon it for the reasonable value of the enjoyment of the possession of the premises up to that time, and at no time can recovery be had for the use enjoyed more than three years before. The plaintiff’s recovery should have been limited to compensation for the use of the property within three years prior to the commencement of the action. (Seibert v. Baxter, 36 Kan. 189, 12 Pac. 934; Tibbetts v. Morris, 42 Iowa, 120; Joshua Elder v. G. A. Henry, Adm’r, 34 Tenn. [2 Sneed] 81; Carter v. Sanderson, 41 S. W. [Ky.] 306.)
The judgment-is reversed and a new trial ordered.
Cunningham, Greene, Atkinson, JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J. :
This tale of youth and love and crime and death is briefly told. In the autumn of the year 1903 Oora Palmer and Will McCoy ran away and were married. She was seventeen and he was twenty. They stayed for a little while with his parents in Kansas City, and then she was called to her former home in Longton by the fatal illness of her father. After her father’s funeral she returned, but soon went home again to her mother. This time her husband accompanied her, remained with her a week, and then resumed his work as a machinist in Kansas City. When they were together they seemed to be happy, but as the days of their separation wore away his mood changed and he became worried and anxious.
Some one carried to him, but not in kindness, a story of Cora’s skating upon the river on Sunday afternoon with some young men, one of whom walked a part of the way home with her. Her letters caused him agitation, and in the latter part of January, 1904, he wrote the clerk of the Howard county district court to know if she had sued for a divorce. On February 25 he went to Longton, and the former light-hearted relations of the young people were apparently renewed. One evening he seemed to be somewhat depressed on account of his inability to find congenial work, but the kind words of Mrs. Palmer, with whom they lived, restored him to cheerfulness. Occasionally they became a little piqued at one another, but only for the time being, and they were never heard to quarrel. Once, however, Cora took his revolver to her mother for safe-keeping, remarking at the time, ‘.‘you don’t know what an awful temper he has.” On the morning of April 12, Will asked his wife to drive out with him to plant á rose-bush on her father’s grave, but she declined to go, saying to her mother that he merely wanted to take her out and quarrel with her. Later that morning the two came into the house together and went up-stairs. He went into their room, and Cora went into her mother’s room, sat down beside her mother on the bed, told her Will was going to Kansas City on the 10:46 train, and asked for a check for some money he had left for convenience with Mrs. Palmer. Presently he was heard to call, “Cora ! ” As if in her heart she felt her doom draw nigh, she said, “Ma, I am afraid.” Mrs. Palmer, however, reassured her, and she arose, looked at her mother and walked to immediate death at her husband’s traitorous hands in the adjoining room. Hearing pistol shots, the terrified mother rushed in and found the hapless girl-wife lying composed and still upon the floor with a bullet-pierced brain, while the defendant lay upon his face some distance away from her, apparently dead, with his revolver near his right hand. A self-inflicted wound on the right side of his head proved inconsequential, and he was immediately taken into custody. In due time he was tried for his crime, convicted of murder in the first degree, and sentenced to be hanged. The principal defense was that a fateful inheritance lurking in his blood made sudden conquest of his reason, and left upon his memory no trace of the tragic circumstance.
In this appeal it is urged that the defendant was forced to trial without having been allowed sufficient time to prepare his defense. The preliminary examination was not held until April 25, thirteen days after the homicide. At the preliminary examination the accused was represented by counsel who afterward defended him. The information was filed April 30, and a copy of it was delivered to the defendant on the same day. On May 2 final arrangements were made by the defendant for the assistance of counsel at his trial. On May 3 the case was called for trial.
In his application for a continuance the defendant placed stress upon the difficulty he had encountered in securing counsel. He was, however, duly represented, and, if his efforts to employ counsel had wholly failed, and the court had been obliged to appoint an attorney to conduct his defense, such facts would scarcely have been sufficient to carry the case beyond the term.
The defendant further claimed to be out of health physically and mentally, but it was not shown that he required medical attention or treatment; that he was unable to attend the trial, or that he would suffer any particular inconvenience in doing so ; and a close scrutiny of the careful phraseology of the affidavits of himself and his attorney leads to the conclusion that it was not necessary to postpone the trial on account of his mental condition.
The absence of a witness known by the name of Boone was urged, but the testimony believed to be obtainable from him was presented in full by an affidavit which the state consented should be read as a deposition. It was asserted that if time were given it could be shown that defendant was a young man of good character, but the evidence to that effect was not set out, no witnesses by whom it could be proved were named, and the places of residence of such witnesses were not disclosed. The defendant also desired the presence of his mother as a witness, but no attempt, was made to set forth what her testimony would be. It was broadly asserted that she was the only person, who could prove the defendant’s family history with reference to insanity, and the defendant’s physical and mental condition before the homicide, but such statement was insufficient to comply with the require ments of the law. Therefore, under all the circumstances of the case, and upon the showing made, the motion for a continuance was properly overruled.
At the trial, the statement in the affidavit for a continuance relating to the importance of Mrs. McCoy’s presence as a witness was shown to be untrue in fact. All the matters stated to be within her exclusive knowledge were fully proved in copious detail by the testimony of the defendant’s father, sister, uncle, and grandmother. If it had been error to overrule the motion for a continuance upon the ground of her absence the defendant was not prejudiced.
As first presented to this court, the record failed to show that, upon the preliminary hearing, the examining magistrate found that a crime had been committed and that probable cause existed for believing the defendant to be guilty of its commission. The state having suggested a diminution of the record, the missing matter has been supplied, and all assignments of error based upon its absence are therefore groundless.
It is said that the court erred in refusing to permit the defendant to show why letters, the contents of which were material, were not in court, as a basis for secondary evidence of their contents. The record .does not warrant the assertion. The witness having control of the letters testified that they were in Kansas City, Kan., and that she did not bring them because she came to the trial in response to a telegram, and, in her haste, overlooked them, and did not have time to get them. The record then discloses the following :
“Q,ues. When did you receive that telegram ? Ans. I got it about six o’clock.
“Q,. About six o’clock when — whatday? A. Tuesday evening.
“Q,. That was yesterday evening ? A. Yes, sir.
“ Q,. What time did you have to leave Kansas City?”
By the court-: “I do not see that this cuts any figure.”
By Attorney Hudson : “I was trying to account for . not having the letters. The theory was to lay the foundation — equivalent to having them lost. It was impossible to get them.”
Since the examination had proceeded far enough to show that the letters themselves were in existence, were within the jurisdiction of the court, and were accessible to its process, the theory of counsel was not tenable, and the conduct of the court was clearly correct.
The court by instruction No. 22 advised the jury as follows :
“It is claimed by the defendant that at the time of the commission of the act he was insane, and therefore, not legally responsible for the act.
“You are instructed that where the defense of insanity is set up it does not devolve upon the defendant to prove he was insane at the time of the commission of the alleged offense by the preponderance of the evidence, but if upon the whole of the evidence introduced on the trial, together with all the legal presumptions, as explained in these instructions, under the evidence, the jury entertains a reasonable doubt as to whether the defendant was sane or insane, then in that case he must be acquitted.”
It is urged that this instruction eliminated all question as to who fired the fatal shot, and in effect told the jury that the defendant admitted the killing to be his own act. The argument is somewhat hypercritical and involves the hoary fallacy of excising a single instruction, or a single sentence of an instruction, from the body of the charge, and treating it as if it contained the sole utterance of the court to the jury.
Ia tbe eighth instruction the court enumerated seriatim the facts to be found by the jury beyond a reasonable doubt before they could convict. Among them were the following :
“First. That Cora McCoy was shot and killed as charged and stated in the information.
‘ ‘ Second. That the defendant, William McCoy, shot and killed her.”
When the law relating to mental capacity to commit crime was applied by the instructions specifically to the defendant it was with.the premise that the jury should believe from the evidence beyond a reasonable doubt that the defendant committed the act charged in the manner alleged in the information, and the same necessity was imposed time and again in page after page of the instructions. The assignment of error relating to instruction 22 cannot be sustained.
Technically, the.defendant is not entitled to question the propriety of instruction 22. In a criminal case exceptions to instructions can be preserved in no other manner than by a bill of exceptions. They have no place upon the journal of the court. In this case the journal entry notes an exception to all the instructions, but the bill of exceptions recites that all instructions given by the court were excepted to "excepting instruction No. 22.” However, in order that the defendant might not feel that a mere oversight in the matter of making up the record of his trial has caused him to suffer capital punishment, the court as a matter of grace-has read instruction 22 in connection with those to which exceptions were duly saved, with the result already announced.
The record is free from material error, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J. :
The petition in this case alleged, substantially, that on October 1, 1887, Elizabeth Henthorn was the owner in fee of the real estate in question, and on said date, jointly with her husband, Amos, delivered to the American Investment Company a promissory note for $1500, due November 1, 1892. At the same time she executed and delivered a mortgage on the land to secure the payment of the note. This mortgage became a first lien on the land. On the same day the Henthorns executed and delivered to the same company five promissory notes for $30 each, due in one, two, three, four and five years, respectively, from November 1, 1887, and also executed and delivered a second mortgage on the same land to secure these notes. Both mortgages were recorded. In December, 1887, the American Investment Company sold and transferred to Theodore P. Strong the $1500 note and mortgage. On the 1st day of June, 1890, Elizabeth Henthorn died, leaving as her heirs the plaintiffs in error and her husband, Amos, all of whom within one year thereafter abandoned the land and all claim thereto. Such abandonment continued to the commencement of this action below, and all of the heirs, except the heirs of Enos A. Henthorn, left Cowley county, in which the lands were situated. Amos Henthorn died in Oklahoma territory in 1892, the exact.time being unknown to plaintiff, leaving the plaintiffs in error as his heirs.
On June 12, 1901, the American Investment Company, still retaining the second mortgage and $30 notes, only one of.which had been paid, commenced a suit in Cowley county to foreclose the mortgage, procuring service by publication, which was apparently regular. Judgment of foreclosure was entered and the land was sold thereunder on May 2 to one Bliven, as trustee, who, on May 9, 1893, conveyed it to the American Investment Company. On December 27, 1894, Frank E. Allen, as receiver of the American Investment Company, conveyed the same to the Security Company, as trustee under the will of Theodore P. Strong, deceased. Bliven, as trustee, the American Investment Company and the Security Company have in turn been in possession of the land from the time of the issuance of the sheriff’s deed to the commencement of the action. In November, 1901, the plaintiff below first learned that Elizabeth Henthorn had died before the commencement of the foreclosure suit and that Amos Henthorn had died soon thereafter, and that by reason thereof its title, if any it had, was defective.
A general demurrer was filed to the petition and overruled. The defendants excepted and elected to stand on their demurrer. Judgment was rendered for plaintiff, and the defendants bring the case to this court for review solely upon the alleged error in overruling the demurrer.
Had an action in ejectment been commenced by the plaintiffs in error against the defendant in error, an answer setting forth the facts alleged in the petition in this case would have stated a defense. (Kelso v. Norton, 65 Kan. 778, 10 Pac. 896, 93 Am. St. Rep. 308; Mortgage Co. v. Gray, 68 id. 100, 74 Pac. 614; Stouffer v. Harlan, 68 id. 135, 74 Pac. 610.) It remains, then, only to say that a mortgagee in possession, having the right to retain that possession against the holder of the legal title, is not obliged to await the uncertain action of the holder of the legal title to have his rights ■adjudicated, but may himself bring an action for that purpose.
The plaintiff below stated facts in his petition which ■entitled him to equitable relief, if not to the particular relief prayed for, and the demurrer thereto was properly overruled. No objection, however, is made ito the judgment which was rendered on the merits.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
Defendant in error was plaintiff below. She alleged in her petition that she had deposited with the plaintiff in error the sum of $2475, and that the same had been credited to her account; that she had drawn out on various checks $1237.50 of the amount so deposited, and that the bank had refused to honor her checks for the balance, or to pay the same to her upon demand. In its answer the bank admitted that the plaintiff had deposited with it the sum of money claimed by her, and that she had drawn out the half of it, and that it had refused payment of the balance to her upon her demand; and then, by way of excusing itself for such refusal, the bank pleaded that it had a right to retain such balance to apply upon the debts owing to it by one W. E. Green and his wife, Laura M. Green, and the Wichita Elevator Company, which company was composed of W. F. Green and W. W. Culver.
The right so to apply the funds deposited by the plaintiff, Frost, if such right existed, grew out of an arrangement made, not with Miss Frost personally, but with W. W. Culver, who was her brother-in-law. She denied that he had any authority, as her agent, to make any agreement for her relative to the disposition of the funds.
Admitting, as the bank did in its answer, that this money was deposited with it by Miss Frost, and that it had refused to pay the balance to her, the burden was upon the bank to justify its refusal. In order to do so it must have proved not only the agreement made by Culver, but his agency for Miss Frost to make such agreement as to the disposition of her money. Much testimony was introduced by the defendant bank in its effort to make such proof. Early in the introduction of evidence objection was made by Miss Frost’s attorneys to the introduction of testimony relative to any agreement made by Culver about the application of the payment of her money to the liquidation of the debts of others until authority from her should be shown in him to make such agreement. The court, however, permitted the evidence to proceed, assuring the attorneys for the bank that unless such evidence should be produced before the close of its testimony all evidence touching any agreement made by Culver would be stricken out. At the close of the introduction of the bank’s testimony, conceiving that no evidence tending to show any agency on the part of Culver from Miss Frost existed, the court did strike out all testimony tending to prove an agreement on the part of Culver. This is the first error assigned. The plaintiff in error insists that there was some evidence to prove such agency.
It seems that an agreement had been made between Green and Culver to go into the grain commission business in "Wichita, and as preliminary thereto Culver was to procure his sister-in-law, Miss Frost, to erect an elevator. Mrs. Green was to procure a site therefor. Before the completion of the elevator Culver reported that Miss Frost was unable to go further because her money had run out. A supplemental arrangement was then made by which Mrs. Green fur ished some money, and, perhaps, though not clearly shown, the Wichita Elevator Company, composed of Green and Culver, furnished some.- After the elevator was completed it was insured in the sum of $4000, the loss, if any, payable to Miss Frost and Mrs. Green. The elevator was burned. The loss was adjusted by the insurance company, and the drafts in payment were made payable to Mrs. Green and Miss Frost. Two of these drafts, indorsed by Mr. Green as attorney in fact for his wife, and by Miss Frost in person, were carried to the bank by Culver and by him deposited to the credit of Miss Frost. This is the deposit in controversy. It clearly appears in the evidence that the elevator was the joint property of Mrs. Green and Miss Frost.
The evidence depended upon to establish Culver’s agency for Miss Frost is that he made for her the agreement relative to the erection of the elevator; that he brought to the bank the drafts indorsed by her and made the deposit for her; that from his general conduct, and some specific statements, it appeared that these transactions were carried on in the name of Miss Frost for the purpose of covering up property really belonging to Culver, in order to keep it away from his creditors. We have given very careful attention to all the evidence, and we find therein no warrant for holding that there was shown any authority, either general or specific, by Culver to speak for Miss Frost. The fact that she furnished money through him for the erection of the elevator would nowise tend to show that he had authority from her to appropriate her money to the payment of the debts of others; nor would the fact that she committed to him these drafts for the purpose of their deposit in the bank to her credit be any evidence of such agency. It is well settled that neither the acts nor the declarations of the agent can be shown to prove agency. (Streeter v. Poor, 4 Kan. 412; Lewis v. Comm’rs of Bourbon Co., 12 id. 186; Leu v. Mayer, 52 id. 419, 34 Pac. 969; Richards v. Newstifter, ante, p. 350, 78 Pac. 824.)
Nor can the evidence which, it is said, looks to the conclusion that these funds in fact belonged to Culver, and not to Miss Frost, be considered, because the theory adopted by the parties, and admitted in the pleadings, was that the funds did belong to her, and that the bank’s right to divert them was because of an agreement made by her through her agent, Culver. A different question might have arisen had the case been presented and tried upon the theory that the funds were not hers, but really belonged to Culver.
The court, after ruling out the evidence as to agreements made by Culver relative to the disposition of money deposited, directed the jui*y to return a verdict in favor of Miss Frost for the sum of $828. This was upon the theory that the net proceeds of the insurance policies upon the elevator, $3975, belonged in equal amounts to Mrs. Green and Miss Frost — that is, $1987.50 to each; and that, as Miss Frost had received on her checks upon the fund in the bank $1237.50,. she was entitled to receive $750 more, with the interest thereon, which made the $828 for which judgment was rendered.
The plaintiff in error strenuously insists that in directing this verdict the court erred, because the sum received by Mrs. Green on insurance was not involved in this suit and ought not to have been taken into consideration in any judgment rendered. "We are of the opinion that the court was in error in this matter ; that under the condition of the pleadings, Mrs. Green not being a party to the action, the court was not authorized to make adjustments of the accounts between Miss Frost and Mrs. Green ; and, upon striking out the evidence, as it did, a verdict should have been directed in favor of Miss Frost for the entire balance remaining to her credit in the bank. If this be so, the judgment rendered was less in amount than Miss Frost was entitled to at the time ; but this is an error of which the bank cannot complain. It was not harmed by having a judgment rendered against it for a sum less than should have been rendered.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff sued for damages resulting from personal injuries negligently inflicted upon the occasion of a wreck of one of defendant’s trains. The defendant confessed liability, but it disputed the amount of the plaintiff’s claim, and the issue upon that question was the only one tried. The plaintiff opened his evidence by proof that he was a married man and the father of three children. Timely objections to this evidence, and motions to strike it out, were unavailing; and it went to the jury necessarily as a factor for the determination of the plaintiff’s damages, because no other question was open to investigation. The impropriety of this proof is not debatable. (Kansas Pacific Rly. Co. v. Pointer, 9 Kan. 620; Railroad Co. v. Eagan, 64 id. 421, 67 Pac. 887.) An effort is made, in a much attennuated argument, to attach this evidence to another matter developed later in the plaintiff’s case. The record, however, plainly forbids that this be done.
Plaintiff’s physician testified that upon an examination made after the injury he found plaintiff’s’ eyesight to be defective. No damages were claimed for injury to eyes, and the evidence was not admissible for the purpose of proving such damages. It is claimed, however, that the impaired vision was a symptom of a nervous affection resulting from an injury for which damages were claimed. No proof was offered to show that plaintiff was possessed of normal eyesight before the injury, or that the defect observed did not arise from some cause entirely disconnected from the nervous trouble alleged. Hence the evidence should not have been received.
A witness was produced who testified that, some time after the injury complained of, when riding upon a railroad-train with the plaintiff, the latter jumped from his seat and exclaimed: “Damn that train.” It is said this evidence tended to prove that plaintiff is a neurasthenic. The law has clear reasons for excluding testimony of this character, which lose none of their cogency in this case.
It was not error to reject evidence on behalf of the defendant that the plaintiff’s hearing was not a subject of general discussion in the neighborhood in which he resided. If any of plaintiff’s neighbors had observed or knew anything about his hearing their testimony could have been produced. Other assignments of error relate to objections and exceptions waived by conduct at the trial, or to matters which are not likely again to become material.
The judgment of the district court is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Burch, J. :
The understanding of the parties referred to in the question set out in the first assignment of error was expressed in written instruments • hence, the question was manifestly improper.
The record discloses that the drilling referred to in the question set out in the second assignment of error was done upon land other than that in controversy, subsequently to the time the rights of the parties to this suit became fixed; hence, the question was manifestly improper.
It was not prejudicial error to exclude an answer to-the first question set out in the third assignment of error because the witness had already, without objection, stated his thoughts and intentions regarding an abandonment of the Armel land, and later in his examination went over practically the same ground again.
The second question set out in the third assignment of error stated the principal issue in the case. To-permit an answer would have been to allow the witness to usurp the function of the judge and decide the controversy ; hence, the question was manifestly improper.
The fourth and fifth assignments of error assert that the judgment is not sufficiently sustained either by fact or by law.
The court found generally for the plaintiff, and hence found that the lessee abandoned the leased premises. The question of. abandonment is one of fact, depending upon intention and conduct. (Thorn. Oil & Gas, §137; Bryan, Petr. & Nat. Gas, § 205; see, also, 1 Snyd. Mines, § 512.) If, when the lessee removed the casing from the dry wells, removed its material, machinery, and tools, went away from the land, and neglected to pay rent, it did so intending never to return, the court was justified in finding that it abandoned the project.
The lease bore a well-understood character. The contemplated benefit to the lessor consisted in royalties. The provision for rent was not, as in Rose v. Lanyon, 68 Kan. 126, 74 Pac. 625, an alternative which the lessee might adopt and thereby relieve itself from drilling and operating. Its purpose was to incite speedy development of the property, and, hence, early payment of royalties. The lessee had the right to enter and explore, and to operate, if oil or gas should be discovered, but no estate in the land would vest unless mineral should be found and worked. Until that time the preliminary right was of such a character that it could be lost by abandonment, without the lapse of time prescribed by the statute of limitations.
The stipulation for surrender by the lessee after two years did not imply that title should vest before oil or gas should be found and produced. It merely enabled the lessee to relieve itself of the burden of operating an unprofitable property if oil or gas should not be found in paying quantities.
The tender of rent made after suit was commenced was unavailing. When abandonment in fact occurred, the lease was subject to cancelation. Rent was due when the lessee deserted the land. The right to pay was abnegated in the abandonment, and the lease could not be revivified against the will of the lessor by a belated offer to pay.
The parties were before the court in person. They gave interpretations of their conduct and versions of their claims. The facts and circumstances of the removal in themselves afforded some evidence of abandonment. It was the duty of the court to weigh those facts in connection with all the other evidence in the case. The presumption is that it did so. There is substantial evidence to support the judgment on the ground of abandonment and this court cannot interfere.
The case is argued as if the judgment of forfeiture were based upon the fact of the non-payment of rent at the expiration of six months from the date of the lease, as well as upon the fact of abandonment, and such may have been the decision. If so, it was correct. Although time was not expressly stated to be of the essence of the contract, yet the stipulation for forfeiture is to be strictly construed for the lessor’s benefit, and it is not shown that any inequitable or unconscionable result attends the declaration of forfeiture in this case. (Edwards v. Gas Co., 65 Kan. 362, 69 Pac. 350.)
The assignees of the lease contend that the time for the payment of rent was extended until six months after the latest date agreed upon for commencing drilling operations. Such an interpretation of the lease and extension agreements is unwarranted.
The covenant in the lease to pay rent is separate and distinct from the provision relating to the time for beginning to drill. It requires rent to be paid after six months from May 21, 1902, for each piece of land in which wells had not been drilled and operated. The lease itself provided for one extension of time in which to begin drilling, but such provision is followed by the peremptory requirement that rent be paid, even though the commencement of operations be delayed. The subsequent extension agreements belong to the same category with the one contained in the lease itself. Neither in express terms nor by necessary implication do they relate to any subject except that of time in which to institute operations, and the covenant to pay rent remains unchanged.
From all this it follows that upon either theory of the case the judgment of the district court must be affirmed, and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
On December 2, 1898, a mare owned by plaintiff in error was killed by one of the trains of defendant in error on a track which was not fenced. In April, 1899, Becker commenced an action against the company in a justice’s court to recover the value of the animal and attorney’s fees. He recovered a judgment for $200. The railway company appealed to the district court, where judgment was again rendered against it for the same amount. On proceedings in error brought by the railway company in this court, the judgment of the district court was, on January 11,1902, reversed and a new trial ordered on the ground that there was no proof of a demand on the company for payment of the value of the animal before the action was brought. (64 Kan. 884, 62 Pac. 1129.)
On March 17, 1902, after the case had been remanded, plaintiff below dismissed his action without prejudice, and thereafter, on March 28, 1902, made a written demand on the company for the value of the mare and attorney’s fees. Payment was refused. On April 80, 1902, Becker brought this action, alleging a demand, founding his case on sections 5859 to 5868 (inclusive) of the General Statutes of 1901. The court below rendered a judgment in favor of the railway company on the facts above stated.
It will be seen from the above statement that no demand on the company for payment of the value of the animal, or for attorney’s fees, was made until after a lapse of more than three years from the date when the mare was killed. Plaintiff below seeks to toll the statute of limitations from the fact that an action was brought by him to recover the value of the mare and attorney’s fees within six months from the time of his loss ; that by a dismissal of that action in March, 1902, without prejudice (which was a failure otherwise than on the merits), and the bringing of a new one within one year, after a demand had been made on the company, the limitation did not run, by virtue of section 4451 of the General Statutes of 1901. We are of a contrary opinion. It has been held uniformly by this court, under the stock-killing act of 1874 (Laws 1874, ch. 94; Gen. Stat. 1901, §§5859-5863), that one who seeks its benefits must bring himself squarely within its terms. (K. P. Rly. Co. v. Ball, 19 Kan. 535.)
It is necessary for a plaintiff to plead a demand. (Mo. Pac. Rly. Co. v. Morrow, 36 Kan. 495, 13 Pac. 789; Mo. Pac. Rly. Co. v. Piper, 26 id. 58.) The owner of stock killed under the circumstances of the present-case has no right of action against the railway company until after thirty days from the date of the demand, and no cause of action without an averment of such demand. It is just as essential for the maintenance of this statutory action that a demand be made as that the animal be killed.
The case of Hall v. Hurd, 40 Kan. 374, 19 Pac. 802, relied on by counsel for plaintiff in error, is not in point. That was an action under the statute by a chattel mortgagor to recover from the mortgagee the penalty imposed for failure to satisfy a mortgage on the record after its payment. The action was first brought without a previous demand, which the court held was necessary. The case was then dismissed without prejudice and another action brought within a year from the dismissal, in which a demand was pleaded. The court held that the new action saved the rights of the plaintiff from the bar of statute of limitations. In that case the court said :
“The law made it the duty of the mortgagee to release the mortgage after payment. It was as much his duty to do so before demand as afterward. True, no penalty attached until after demand. There was a wrong on the part of the defendant, and the plaintiff had a right of action independent of the notice to compel such cancelation.” (Page 375.)
Under the law on which this action is based a right to recover is given to the owner of stock killed on an unfenced railway, regardless of the negligence of the company. Independent of the statute there could be no liability in this case, for no act of negligence is charged against the railway company in the bill of particulars. In St. L. & S. F. Ry. Co. v. Kinman, 49 Kan. 627, 631, 31 Pac. 126, 127, commenting on the nature of an action under the railroad stock law we are now considering, the court said:
“And without proof of a proper demand upon a proper agent of the company, of course the plaintiff cannot maintain his action. Such an action could not be maintained at common law at all; and it can bemáintained under the statute only by a substantial compliance with the statute.”
The case of Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22, is also relied on by counsel for plaintiff in error in support of their contention that, the first action being prematurely brought, a dismissal of it without prejudice, and a beginning of a new suit after demand, tolled the statute. In the case mentioned Seaton brought suit to foreclose a material-man’s lien. He commenced the same less than sixty days after the completion of the building in the construction of which the materials were used. The .suit was brought too soon under the statute in force at that time, and Seaton failed for that reason. It was held that another suit brought within a year to foreclose the lien might be maintained. In the present case an affirmative act, a demand, was required on the part of the owner of the animal killed before a cause of action accrued to him under the statute. In the Seaton case no such preliminary requirement gave the right to sue. The law merely postponed the bringing of the suit to foreclose until sixty days after the completion of the building. The law imposed on Seaton the negative duty of remaining passive until the building had been completed sixty days before he could sue.
In the case at bar, if the owner had made seasonable demand of the railway company for pay for the animal killed, and then brought his action alleging the demand, but had not waited until the full thirty days (the time állowed the company in which to pay) had elapsed, the action might be said to have been prematurely brought, and the case of Seaton v. Hixon, supra, would be an authority favorable to the right of Becker to dismiss such action without prejudice and bring another, after the expiration of thirty days from the demand, which would not be affected by the statute of limitations. No cause of action being stated in the original bill of particulars, the right to recover was not saved by a dismissal and the bringing of a new action after the statute of limitations had started to run. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189.)
For another reason the judgment of the trial court must be affirmed. No demand was made on the railway company to pay the value of the mare until the expiration of more than three years after the animal was killed. In West v. Bank, 66 Kan. 524, 527, 72 Pac. 252, 253, 63 L. R. A. 137, 97 Am. St. Rep. 385, it was said:
“It is established law in this state that when some preliminary action is an essential prerequisite to the bringing of a suit, and such action rests with the claimant, he cannot defeat the operation of the statute of limitations by long and unnecessary delay in taking the antecedent step; and the statute will begin to run within a reasonable time after the party could, by his own act, perfect his right, which reasonable time will not, in any event, extend beyond the statutory time fixed for bringing the suit. This doctrine has been stated and restated, illustrated and illuminated, applied and reapplied, until it has become a truism.”
In The Dist. Twp. of Spencer v. The Dist. Twp. of Riverton et al., 62 Iowa, 30, 17 N. W. 105, the syllabus reads:
“While the time for the commencement of an action may be extended by section 2537 of the code, in a case where a former action has failed for any cause other than negligence, that section does not extend the time for bringing into existence the conditions without which no action can be maintained. Accordingly, where a demand was necessary, and it was not made until after the time of the statute had run against the claim, held that the claim was barred, notwithstanding it might otherwise have been saved under the provisions of said section.”
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
The ruling of the court below in sustaining a demurrer to the evidence is defended by counsel for the railway company on the ground that the cause of action set out in the petition was not for the breach of a contract of carriage, but for a tort only. They rely on decisions of this and other courts which hold that a person traveling on a railway-train without a ticket entitling him to ride may be regarded by the conductor as a trespasser, and may be ejected, no unnecessary force being used, without any liability on the part of the railway company therefor. (See A. T. & S. F. Rld. Co. v. Long, 46 Kan. 260, 264, 26 Pac. 682; A. T. & S. F. Rld. Co. v. Gants, 38 id. 608, 17 Pac. 54, 5 Am. St. Rep. 800; Rolfs v. Railway Co., 66 id. 272, 71 Pac. 526, and cases cited.) There can be no doubt that the principle stated is settled by the great weight of authority. (Mosher v. St. Louis &c. Railroad Co., 127 U. S. 390, 8 Sup. Ct. 1324, 32 L. Ed. 249; Taft, J., in Pouilin v. Canadian Pac. Ry. Co., 52 Fed. 197, 3 C. C. A. 23, 17 L. R. A. 800; Ell. Rail. §1594; Hutch. Carr. § 580j.) The application of this rule would defeat the plaintiff below, unless it can be said that the averments of the petition are sufficient to constitute a cause of action for breach of contract to carry her as a passenger.
It must be remembered that the petition was not attacked by demurrer for misjoinder of causes of action, and that the defendant below did not move to strike from it irrelevant and redundant matter. If two causes of action were improperly joined, the fact that they were blended and commingled in one statement did not deprive defendant below of the right to demur for misjoinder. (Benson v. Battey, ante, p. 288, 78 Pac. 844.) To reach a defect of this kind, appearing on the face of the petition, a demurrer was the proper method of attack. (Lyons v. Berlau, 67 Kan. 426, 73 Pac. 52.)
Defendant below, after answering, was content to proceed with the trial of the cause against the averments of a petition which, if objected to properly and in time, might have driven the plaintiff to elect whether she based her right of recovery on contract or tort. No defects were pointed out while plaintiff below was in a position to amend. Under these circumstances, if sufficient facts can be found to constitute any cause of action it is the duty of this court to sustain the petition. (Bright v. Ecker et al., 9 S. Dak. 192, 68 N. W. 326. See, also, Seaton v. Scovill, 18 Kan. 433, 21 Am. Rep. 212, note, 26 Am. Rep. 779; O’Connell v. Rosso, 56 Ark. 603, 20 S. W. 531; Connyers v. The Sioux City & Pac. Ry. Co., 78 Iowa, 410, 43 N. W. 267; Central Railroad Co. v. Pickett, 87 Ga. 734, 13 S. E. 750; Dailey v. Houston, 58 Mo. 361; Hewitt v. Brown, 21 Minn. 163.)
Under the code a statement in a petition of the facts constituting a cause of action, set forth in ordinary and concise language, without repetition, is sufficient. (Civil Code, §87; Gen. Stat. 1901, §4521.)
The allegations respecting the tortious acts of the conductor may be treated as surplusage. (Bernhard v. City of Wyandotte, 33 Kan. 465, 467, 6 Pac. 617. See, also, Campbell v. The Mo. Pac. R’y Co., 121 Mo. 340, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530; Oglesby v. Mo. Pac. R’y Co., 150 id. 137, 51 S. W. 758; Radcliffe v. The St. L. I. M. & S. Ry. Co., 90 id. 127, 2 S. W. 277.)
The petition avers that plaintiff below paid her fare to the Santa Fe company for her passage from Chicago to Pittsburg and return, and was given a ticket by the agent of defendant in error at Chicago which required its agent at Pittsburg, when it was presented, to give her a proper ticket to return. It alleged also :
“That the said agent, at Pittsburg, examined both of said tickets and informed plaintiff that he could not find her ticket for the remaining part of the journey, and afterward informed her that he would' stamp the tickets, and this would be sufficient for her to make such passage and journey; that thereupon he stamped, as plaintiff believed, both of said tickets, and at plaintiff’s request checked her trunk as baggage from Pittsburg to Chicago over the train of defendant.”
It is further alleged that she was entitled to be given a proper ticket for her journey, and that she depended wholly upon the advice and information received from the agents of the railway company. Coupled with the averment that plaintiff below was afterward expelled from the train which she had taken on the assurance of the agent that the tickets given to her by him were all-sufficient, there was clearly a breach of the contract to carry, for which the railway company was liable. (Hutch. Carr., 2d ed., §580A)
Plaintiff below contracted for her passage from Pittsburg to Chicago, paid the rate charged therefor, and was entitled, on demand of the company’s agent at Pittsburg, to receive a proper ticket, evidencing her right to ride as a passenger on its train. Sufficient evidence was introduced to justify the jury in finding that defendant below had violated its contract to carry plaintiff as stipulated in her ticket. The ticket, a copy of which is set out in the answer of the railway company, provided that the purchaser within twenty-one days after the commencement of her journey could, by presenting the exchange coupon attached to the going part of her ticket, secure a return portion by identifying herself as the original purchaser. The company was bound to furnish a return ticket on demand. Its refusal or neglect was a breach of the contract.
The person in charge of the ticket office at Pitts-burg, on presentation of the order for a return ticket, attempted to perform the duty resting on the company toward plaintiff below, and on failure to find a return ticket of the form in common use stamped the order for return passage and checked the holder’s baggage, giving her to understand thereby that she was entitled to ride on the evidence of a right to do so which he furnished her.
The judgment of the court below is reversed, and a new trial ordered.
All the Justices concurring. | [
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Per Curiam:
Appellant was convicted of a violation of section 8 of chapter 106 of the Laws of 1901 (Gen. Stat. 1901, §4205). The law is entitled :
“An act to define conditions of child dependency, neglect, and ill treatment, and to prescribe methods for the protection, disposition and supervision of dependent, neglected and ill-treated children within the state of Kansas.”
The only question presented on this appeal is whether section 8 is in conflict with section 16 of article 2 of the constitution, which provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title.”
The title states that one of the objects of the act is “to prescribe methods for the protection of neglected and ill-treated children.”
We think that the legislation contained in section 8 is germane to the language of the title. No narrow or restricted scope is to be given to the title of legislative acts. (Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; School District v. Atzenweiler, 67 id. 609, 73 Pac. 927.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
This suit was brought to enjoin the road-overseer of road district No. 1, Logan township, Mitchell county, from opening a ditch on the road in front of plaintiffs' premises. On the trial of the merits the temporary injunction was dissolved. The plaintiffs prosecute error.
The defendant in error challenges the jurisdiction of this court on the ground that the proceeding in error was not commenced within thirty days after the final judgment dissolving the temporary injunction. General pleadings were filed by both parties, the cause tried on its merits, and judgment rendered dissolving the temporary injunction, and for costs. It is contended that this court cannot acquire jurisdiction to reverse a judgment vacating an injunction, unless the proceeding be instituted in this court within thirty days from the date of the rendition of such judgment, as provided in section 5053, General Statutes of 1901. The provisions of that section have application only to proceedings to reverse interlocutory orders dissolving injunctions. They have no appli cation to proceedings in error to reverse a final judgment in an injunction suit.
This is the second time this cause has been before this court. The present plaintiff's prosecuted error from a judgment of the district court, which was reversed and the cause remanded. (Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252.)
It appears that on the final trial a general judgment was rendered for the defendant, and for all costs except those of the first trial, including the costs of the proceeding in error, which were taxed to the defendant and a judgment rendered against him therefor. Prior to instituting the present proceeding the plaintiffs caused an execution to issue on the judgment against the defendant for such costs, which were collected and paid into court. A second ground for dismissal urged by defendant is that the plaintiffs, having accepted the benefits of that portion of the judgment which was in their favor, cannot now be heard to complain of that portion which was against them. One cannot accept the benefits of a part of an entire judgment, and complain of another part. However, this rule has no application where the judgment is separable and each part independent of the other, and the reversal of one part does not affect the other. (Inverarity v. Stowell et al., 10 Ore. 261; Farmers’ L. & T. Co. v. Bankers’ etc. Tel. Co., 109 N. Y. 342 16 N. E. 539.) The judgments in this case are separate and independent. They are not so closely connected and mutually dependent that the reversal of one would necessarily require a reversal of the other. Indeed, it would be hard to conceive of the existence of such a condition where judgments are for costs only. The motion is overruled.
There are numerous assignments of error, but they possess little merit. Neither party was entitled to a jury. The court impaneled a jury and submitted to them certain questions of fact. Error is predicated on the refusal of the court to submit other questions requested. Whether the advice of a jury should have been taken on any question, and if so, upon what question, was a matter entirely within the discretion of the court. In Woodman v. Davis, 32 Kan. 344, 347, 4 Pac. 262, 264, it was said :
“The first four causes of action were in equity, and in such a case the court has the power, without giving any reason therefor, to send any portion of the issues which it chooses to the jury to be tried, and to require the jury to make a separate finding upon each of the issues ; and the court may try all the issues in the case itself.”
If a party to such an action desire a finding on any particular question, he should submit the same bo the court and request a finding thereon. Where the court takes the advice of a jury on particular questions of fact, it is not error to refuse to instruct on general principles of law applicable to the case, if inapplicable to the special questions submitted to the jury In the present case the court fully instructed the jury on all questions of fact submitted to them.
Numerous errors are assigned because of the exclusion of evidence. It appears that for a time the court excluded all evidence along a certain line offered by the plaintiffs ; later, however, it changed the rule and all the material evidence theretofore excluded was admitted.
No substantial error being found in any of the assignments, the judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
Section 208 of the code of criminal procedure (Gen. Stat. 1901, §5650) makes the provisions of the code of civil procedure relative to the discharge of jurors for inability to agree applicable to criminal cases. Section 4728, General Statutes of 1901 (Civil Code, § 281), provides :
“ The jury may be discharged by the court . after they have been kept together until it satisfactorily appears that there is no probability of their agreeing.”
The proposition involved is whether the discharge of the jury in the present case operated, in its legal effect, as an acquittal of defendant. This question was before the court in The State v. Allen, 59 Kan. 758, 54 Pac. 1060. In that case the record said: “The jury not having agreed upon a verdict in the above-entitled cause, the jury is discharged from further consideration of this case.” It was held that a further prosecution could not be had. Nothing appeared in the record showing that the jury might not have agreed if given further time, nor was there any record entry of an absolute necessity for their discharge. The court said, at page 759 :
“ It does not appear upon the record that the jury could not have agreed, nor whether a reasonable time was given them within which to reach an agreement. It does not show that the jurors informed the court or held the opinion that an agreement was improbable, nor was there any finding of the court that the jury after being given a reasonable time for deliberation were unable to agree upon a verdict; indeed, it does not appear that the court exercised its judgment on the question as to whether or not there was a probability of agreement or necessity for the discharge of the jury without having rendered a verdict.”
Again:
“The court cannot arbitrarily discharge a jury, nor should it ever be discharged until it appears from the statements of the jurors and the facts and circum stances of the case that every reasonable hope of agreement has vanished.” (Rage 760.)
The case of The State v. Smith, 44 Kan. 75, 24 Pac. 84, 8 L. R. A. 774, 21 Am. St. Rep. 266, was quoted, to the effect that the record ought to show affirmatively the existence of the facts which induced the court to exercise the extraordinary power of discharging the jury, in order that the constitutional rights of the accused might be preserved. The court also referred to The State v. Reed, 53 Kan. 767, 37 Pac. 174, 42 Am. St. Rep. 322, where it was held that the discharge of a jury without sufficient reason will “bar a further trial.” The court further said :
“The court cannot arbitrarily determine whether reasons for discharge exist, but that the question of the necessity for discharge was to be heard and determined by judicial methods ; and such methods certainly contemplate that a record of the findings and determinations of the court should be made.” (The State v. Allen, supra, page 761.)
In the Allen case it was decided that there must exist:
“First, an absolute necessity for such discharge; second, the court must make inquiry and find and determine that such necessity existed at the time of the discharge ; and, third, the essential facts as to such necessity and the findings of the court thereon must be made a matter of record; or the defendant may successfully plead former jeopardy when placed on trial on the same charge.” (Page 761.)
Applying these rules, it is clear that there was no compliance with them in the case at bar. The finding that the judge was satisfied that an agreement of the jury could not be had was a conclusion drawn, not from a judicial investigation on the part of the court, but from a consideration of the length of time devoted by the jury in attempting to reach a verdict, and inquiries by the jury. There is no showing that the court endeavored to ascertain whether further deliberation might result in an agreement, and no effort whatever was made on its part to determine by an examination whether a probability existed that they might agree if kept together for a longer time. The record does not show the essential facts respecting the necessity for a discharge, for the reason that no necessity existed. The finding is :
“At the time said verdict was received the judge of the court was satisfied in his own mind that the jury had been out a sufficient length of time to consider as to their verdict, and that there was no probability that they would agree upon a verdict different from that which was returned, but this conclusion in the mind of the judge of the court existed from the length of time the jury had been engaged in deliberation, and from the inquiry the jury had made as hereinafter recited. The court made no investigation or inquiry at the time the jury was brought into court and discharged as to whether they could probably agree or not, and the court made no judicial investigation or determination of the question at that time, and made no finding thereon at the time the jury was discharged.”
The case of The State v. Hoger, 61 Kan. 504, 59 Pac. 1080, 48 L. R. A. 254, is not in point.
The ruling of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
R. 0. Maurer gave to E. B. Rogers a promissory note, which Rogers indorsed to the Winfield National Bank. Rogers and the cashier of the bank, William E. Otis, were engaged in the cattle business under an arrangement by which profits were to'be divided. Near the time the note matured Rogers purchased of Maurer some feed for the cattle belonging to himself and Otis, In settling for the feed the amount of the-note was deducted, and a check on the bank was given by Rogers for the balance. Some years afterward the bank sued Maurer on the note, and a plea of payment was interposed.
On the trial evidence was introduced to the effect that immediately after it was effected Rogers notified Otis of the settlement with Maurer for the feed purchased, and Otis agreed with Rogers to return the note to Maurer. Numerous circumstances were proved tending to establish the fact that Otis acted for the bank in reference to different matters connected with the cattle transactions disclosed, including the satisfaction of the note in controversy. The court instructed the jury that, if Otis in fact represented the bank, the bank would be bound by his conduct. The jury found for Maurer, and complaint is now made of the evidence referred to and the instruction of the court concerning it.
From the foregoing statement it is apparent that the real question in the case is that of the sufficiency of the evidence to sustain the verdict. The instruction of the court was correct, upon the theory under which the evidence was offered, and the evidence was proper under the same theory. It is the opinion of the court that the record discloses some substantial evidence from which it fairly may be inferred that the bank was bound. Therefore, the .judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
William R. Smith, J. :
The appellant, W. A. Mumford, with one Tom Scott, was convicted of stealing a steer, the property of G. W. Parish. The appeal of Scott was dismissed. (The State v. Scott, ante, p. 692, 79 Pac. 126.)
The information charged that on or about December 30, 1903, the defendants, Scott and Mumford, “did unlawfully and feloniously steal, take and carry away one head of neat cattle, to wit, a steer about three years old, and a more particular description of which the informant was not then able to give.” The first point raised is that this description of the animal stolen is not sufficiently definite. We think otherwise. See The State v. Segermond, 40 Kan. 107, 19 Pac. 370, 10 Am. St. Rep. 169; The State v. Combs, 47 id. 136, 27 Pac. 818; The State v. McAnulty, 26 id. 533; The State v. Ready, 44 id. 697, 26 Pac. 58. In the last case it was said :
“It is almost universally held by courts of last resort everywhere that where there is an allegation in the indictment or information that a more particular description could not be given for some sufficient reason, a general one, as contained in this information, is sufficient.” (See, also, Bish. New Crim. Proc. § 705.
It is contended in the case of Mumford that the evidence was insufficient to justify a verdict of guilty.
Parish had a corral containing four or five acres in which he was fattening some cattle for market. Adjoining this on the east was another field of some twenty-five acres in which stock cattle were kept. Some time before December 30, 1903, he took the steer in question out of the smaller lot and placed him in the larger one for the reason that he disturbed the other cattle. On December 30 Parish missed the animal. He was found the next day or the day following at the farm of a Mr. Bruton, a mile and one-half distant, where he had been fed and kept before.
On examination no broken place was found in the lot where the steer was kept. Through the gate leading out at the southeast corner of the enclosure the tracks of a “cow brute” were found by the owner. Beyond another gate to the southeast Parish saw tracks of a “cow brute,” and of two horses near to them. At a third gate further southeast Parish saw tracks of a “cow brute” and two horses, the tracks of one horse appearing a little larger than the other.
On the night of December 30 Scott and Mumford were seen between the hours of eleven and twelve o’clock at a point one-half mile south of the last gate through which the steer tracks were noticed. They came from the east and turned into a pasture. The steer was in this pasture at the time near the gate. Scott and Mumford were at this time about two and one-half miles west of where they resided, and west of the public road which led from the north directly south to where they lived. Immediately on being seen they spurred their horses and disappeared to the south and were not seen again.
Between twelve and one o’clock the same night a Mr. Bruton saw the steer near his cow lot. The next morning on examination he found that the hair on the steer was standing up or curled, and that he was scouring. This condition he testified would be brought about by the animal’s running. The steer was fed twenty ears of corn a day while confined in Mr. Parish’s lot. A witness, Virgil Roberts, who saw Scott and Mumford on the night mentioned was not nearer to them than 100 yards, but identified them by the horses they rode. He described the steer as red in color and about 1100 pounds in weight. This corresponded with the description given by the prosecuting witness. It was shown that Mumford was in the feed-lot of Parish a few’days prior to the alleged larceny and heard a conversation respecting the steer in question.
The testimony was not strong against the parties, yet we cannot say that it was insufficient to sustain the verdict. It received the approval of the trial court who saw the witnesses and heard the testimony. (The State v. Hunter, 50 Kan. 302, 306, 32 Pac. 37, and The State v. Stewart, 24 id. 250.)
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Gbjeene, J. :
The appellant appeals from a conviction of murder in the first degree. The first error alleged is the overruling of his motion to quash the information because of its alleged indefiniteness and uncertainty as to the person charged. The charge is against F. T. Appleton. It is argued that the letters “F. T.” are only the initials of appellant’s full Christian name, that there is no statement in the information that the pleader did not know appellant’s Christian name, and, therefore, the motion to quash should have been sustained. There was no evidence offered on the hearing of the motion, or at any step in the trial, to show that appellant had any other name than the one under which he was charged. If it had been shown that he was not charged under his full Christian name, the state might have shown that he was known as well by the name of “F. T. Appleton” as any other. Where one is equally well known by two or more names, he may be indicted under either. (State v. Dresser, 54 Me. 569; Commonwealth v. Jacobs, 152 Mass. 276, 25 N. E. 463; Commonwealth v. Seeley, 167 id. 163, 45 N. E. 91; 10 Encyc. Pl. & Pr. 595.)
The appellant’s defense was self-defense. He predicates error on the giving of these instructions : ’
' “18. You are instructed that the killing of deceased would be justifiable if done by the defendant in resisting any attempt to murder him, or do him great personal injury, where there was reasonable cause to apprehend, a design so to murder or injure the defendant, and immediate danger of such design being accomplished.”
“20. In this connection, I instruct you that the defendant was justified in acting up'on the circumstances as they appeared to him at the time. And in determining whether or not the defendant took the life of deceased under circumstances to render the act justifiable, as hereinbefore explained, you will determine whether or not the circumstances as they appeared to him were such as to lead a reasonable man to believe that there was a design to kill him, or do immediate bodily harm, coupled with immediate danger of such design’s being accomplished.”
“22. You are instructed that a city marshal has authority, with or without a warrant, to arrest persons who commit breaches of the peace within his city, and if the persons sought to be arrested resist, or flee, to use such force as may be reasonably necessary under the facts and circumstances to apprehend the offender; but before having a right to resort to such force such officer must use such language and so act as to make clear to the offender his intention then and there to take him into custody.
“28. I instruct you, as a matter of law, that a person who, on'the public streets of a city, in the presence of several persons, applies to another vile epithets, with the intention of annoying, offending and disturbing such person, commits a breach of the peace.”
His contention is that by instructions 18 and 20 the jury were informed that, before one is justified in resisting a felonious assault to the extent of taking the life of his assailant, there must be reasonable cause to apprehend a design to murder him, or do him great personal injury, and that the immediate danger of such design’s being accomplished must exist in fact. Instruction 18 is a statement of abstract law, and instruction 20 is an application of the principles there announced to the case on trial. By the latter the jury were instructed that one upon whom a felonious assault is made is justified in acting in his own.defense upon the facts as they reasonably appear to him, provided the circumstances, as they appear to him, are such as to lead a reasonable man to believe that there is a design on the part of his assailant to kill him, or to do him great bodily injury, and that there is immediate danger of such design’s being accomplished. The contention of appellant is not Warranted by a fair interpretation and reading of the instructions. They correctly state the law, and in such a way as to make it reasonably certain that the jury could not have been misled.
The error alleged in regard to instruction 22 is that it states that a police officer may, without a warrant, arrest one for the supposed commission of an offense. Appellant contends that such an officer can only arrest without a warrant when the offense for which the arrest is being made was committed in his presence. Conceding this to be the law, and that in this respect the instruction is erroneous, is it prejudicial? The offense, if one was committed, for which it is alleged the policeman was attempting to make the arrest at the time of the homicide, was committed in the presence of the officer, and no- question of the right of a police officer to make an arrest without a warrant for an offense not committed in his presence was involved.
The objection to instruction 23 is not specifically stated. It is, however, a correct statement of the law. One who applies vile epithets to another in a public street, in the presence of bystanders, with the intention of annoying and disturbing such person, commits a breach of the peace. That is all that the instruction contains.
It is suggested that- the court erred in refusing to give instructions asked by appellant, numbered from 1 to 8, inclusive. Our attention has only been called specifically to one of such instructions, and upon examination we find that the principle of law stated therein was correctly given in an instruction prepared and given by the court.
We cannot enter upon an investigation of the evidence further than to ascertain if there was some substantial evidence to sustain all the material allegations of the information. We cannot weigh and determine upon which side it preponderates. An examination of the record leaves no doubt in our minds that there was evidence to support every material fact necessary to sustain the charge in the information. While we might not have arrived at the same conclusion, it was the exclusive province of the jury to weigh and determine all questions of fact. Under the rule stated, their conclusion must be final.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
The written contract made at Burns, Kan., on March 26, 1901, could not be varied by oral testimony of agreements. between the parties not contained in the writing. The written agreement was never modified except as to the amount to be paid Heller. Mackey testified that there was no other change, and that everything else except the amount to be paid for the stock “was agreed on as it had been originally.” The offer of proof was rightfully rejected by the trial court. (Railway Co. v. Truskett, 67 Kan. 26, and cases cited on page 35, 72 Pac. 562 )
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J. :
In the opération of its railroad through Allen county the Iola Electric Railroad Company struck and killed a cow belonging to L. L. Jackson, who asks damages for the loss. The cow, with thirty-seven others, was pastured and kept on a quarter-section of land owned by the Lanyon Zinc Company, upon a portion of which a corn crop had been grown and the balance used as grass land. The entire quarter-section was enclosed with a fence, and through the tract the railroad company owned a right of way fifty feet wide, over which the railroad was built and operated. Jackson had obtained the right to turn his cattle into this enclosure mainly to feed upon the corn-stalks, but with the right to use the meadow as -well as the stalk pasture. The cornstalks were upon both sides of the railroad, which was unfenced, although under the law it should have been fenced. On the night of December 29, 1902, one of the cows went upon the railroad-track and was killed, but not because of the negligence of those operating the car which struck her. Jackson recovered for the loss. The railroad company contends that, as he turned his cows into the field knowing there was no fence around the stalks nor along the right of way of the railroad, and allowed them to run at large in violation of the herd law, the loss was due to his own fault.
Jackson’s cows were not running at large, nor can they be regarded as trespassers when they went upon the unfenced right of way of the railroad company. Under the testimony it must be held that the quarter-section was legally fenced, and that Jackson had procured the right to use not only the corn-stalk portion, but also to have them run over the entire field. The cow was within an enclosure, where she had a right to be— as rightfully there as if Jackson had been the owner of the land. She passed directly from the fenced pasture to the right of way, not because of the fault of the owner, but by reason of the neglect of the railroad company. Under the law it was the duty of the company to enclose its road with a good and lawful fence, and from the testimony it appears that the cow went upon the railroad and was killed because of the omission of this duty.
In support of the contention that the cow was running at large, and was a trespasser when she went upon the right of way of the railroad company, the following cases are cited : Cent. Branch Rld. Co. v. Lea, 20 Kan. 353; K. P. Rly. Co. v. Landis, 24 id. 406; U. P. Rly. Co. v. Dyche, 28 id. 200; St. L. & S. F. Ry. Co. v. Mossman, 30 id. 341, 2 Pac. 146. An examination of them discloses that it was the night herd law which was under discussion, a law greatly differing from the general herd law, and hence the cases are not controlling here. The distinction between the laws was specifically pointed out in A. T. & S. F. Rly. Co. v. Riggs, 31 Kan. 622, 3 Pac. 305, and the inapplicability of the cited cases to the one under consideration was made clear. In its facts the Riggs case is quite similar to the present one. There a cow passed directly from the owner’s land, where she had a right to be, upon a railroad which was unfenced, and was killed by the railroad company in the operation of its road. The general herd law was in force in the county, and the law requiring railroad companies to fence their roads was also in effect, and it was held that the owner of the animal might recover from the railroad company for the injury. Among other things, it was said :
“The plaintiff’s cow was rightfully upon the plaintiff's own land, and was not trespassing upon the property of any person, and she passed directly from the plaintiff’s own land upon the premises occupied by the railroad company — premises to which the plaintiff held the fee-simple title, and in which the railroad company held nothing but an easement— and she was enabled to pass upon such railroad premises wholly from the fault of the railroad company itself in not enclosing its road with a good and sufficient fence, and not from any fault of the plaintiff. Under such circumstances, we think there is no decision in the United States holding that the plaintiff is not entitled to recover.”
In that case specific mention was made that the railroad company owned nothing but an easement in the strip of land which it occupied, but in the later case of Gooding v. A. T. & S. F. Rld. Co., 32 Kan. 150, 4 Pac. 136, it was held that the rule of the Riggs case applied as well where the railroad company owned the land upon which the track was located and where the animal was killed. (See, also, St. L. & S. F. Rly. Co. v. Dudgeon, 28 Kan. 283; A. T. & S. F. Rld. Co. v. Shaft, 33 id. 521, 6 Pac. 908.)
There was some testimony tending to show that the enclosure was not complete ; that there was an opening where the railroad entered the field, which was left by the company so that it might haul cinders along the track. This was not a conceded fact, and probably the question should be regarded as settled by the general verdict. It was the duty of the company to complete the enclosure where the railroad entered and left the field by an end fence and cattle-guards across the right of way, and, in any event, it could not defeat a recovery by its own neglect. (U. P. Rly. Co. v. Harris, 28 Kan. 206.)
It appears that the portion north of the railroad had been platted as Melrose Place, and it is argued that the cattle running on the streets and alleys staked out in the corn-field must be regarded as running at large. While the ground had been platted it still remained a pasture and was used as such. No lots had. been sold, and no streets had been used or opened, and even the streets and alleys marked upon the plat did not cross the railroad or the right of way. Under these circumstances the platting did not relieve the company from its obligation to fence, and cannot affect the decision of this case. The company would not have been absolved from liability if the place of injury had been within the limits of a city, where it was platted into lots and blocks, surrounded by streets and alleys. (U. P. Rly. Co. v. Dyche, supra.)
The judgment of the district court is affirmed.
All the Justices concurring. | [
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