text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
The opinion of the court was delivered by
Johnston, O. J. :
In June, 1901, while Samuel Parr was passing over the Shunganunga bridge, it fell, precipitating him into the creek below and severely injuring him. The bridge was built by the county commissioners of Shawnee county in 1892, nine years before the fall, and was repaired by the county in December, 1899. It was a combination bridge of wood and iron, sixty-five feet long, and had a roadway sixteen feet wide. At one end of the bridge was a stone abutment, on which there was an oak sill or cap, eighteen feet long and about ten inches square, and at the other end was piling, upon which there was another oak cap of the same length and size. The dimensions of the abutments were not clearly shown, but the length was given as from sixteen and a half to seventeen and a half feet. There was evidence that each end of the wooden sills extended over the ends of the abutments about four inches. The sill on the stone abutment broke, and the bridge fell. The broken sill was described by witnesses as “brash,” “partially rotted,” affected with “a dry rot,” and that it was the “same color clear through.”
Parr presented a claim for damages to the board of county commissioners, which was disallowed. An appeal was taken to the district court, where a trial was had with a jury, and at the close of plaintiff’s evidence a demurrer to the evidence was sustained,, and under the direction of the court a verdict was returned in favor of the county.
The statute makes a county liable for damages sustained by reason of a defective bridge constructed by the county, where the chairman of the board of county commissioners had notice of such defects at least five-days prior to the time the damage was sustained. (Gen. Stat. 1901, §579.)
The bridge that fell was built by the county. It was defective, and by reason of the defect it fell. Was there such notice of the defect as to make the county liable? This question has been practically determined by former rulings of this court. No proof was offered to show that the chairman of the board had personal knowledge that the sill was rotten, nor that any one had told him that there was danger that the bridge would fall because of any particular defect. Much is said in the argument about implied notice, and notice derived from facts and circumstances which pointed to the ultimate fact. Whatever may be the rule as to notice of transfers and conveyances of property and the like, that required in statutes like the one before us is necessarily of a high degree. The liability insisted on is statutory. In the absence of a statute no. recovery could be had against the county for injuries, resulting from a defective bridge, however negligent, the officers might be. Under this statute, imposing; a new liability on the county, the notice essential to a. recovery is actual personal notice, afforded by direct, knowledge of a particular fact, or by direct communication from those acquainted with it, as distinguished from constructive or implied notice, arising from a knowledge of facts and circumstances sufficient to put one on inquiry and lead to knowledge of the fact in, question. So it was said in Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554:
“In actions under the statute (ch. 237, Laws 1887; Gen. Stat. 1889, §7134) to recover for injuries occasioned by a defective bridge, notice of the defect must be brought home to the chairman of the county board ; and a presumption, that information of the defect possessed by another member of such board was communicated by him to the chairman, will not be indulged. . . . The statute charges the county with liability only where the chairman of the board has notice of the defect in question. This statute excludes the idea of imputable or constructive notice.”
It was in effect held, in McFarland v. Emporia Township, 59 Kan. 568, 53 Pac. 864, that the statute required actual notice, not only of the physical conditions, but of the fact that such conditions resulted in making the highway unsafe. In Jones v. Walnut Township, 59 Kan. 774, 52 Pac. 865, a township trustee had been notified that a bridge had been defective, and he caused it to be repaired. Seven months afterward an injury occurred because of a rotten stringer in the bridge, which was not noticed by him when the repairs were made. In answer to the question whether a liability could arise under the circumstances it was remarked :
“We think not. The trustee discharged his duty when he directed the repair of the bridge, after notice had been given him of its defective condition. The particular defect causing the accident, if in existence at that time, was not specially called to his attention, and was not observed by the road overseer in making the repairs, and such evidences of the condition of the stringer as were observed by the road overseer negatived the idea of its being defective.”
The sufficiency of a notice under this statute was considered in Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010, and the question was whether notice may be presumed from the open character and the continued existence of a defect. The court said :
“In our judgment, such last-mentioned kind of notice is insufficient. The statute requires ‘at least five days’ notice,’ and that, we think, means actual notice. It is notice the statute requires, and not the inference of notice. Notice of a fact is knowledge of that fact.”
In the case of Cunningham v. Clay Township, 69 Kan. 373, 76 Pac. 907, a recovery was sought for an injury caused by a defect in the highway, viz., the leaving of a stone on the side of the road, and it was said :
“In order for the plaintiff to recover, he must show that the trustee had notice not only of the existence and location of the stone but also of the fact that it was a menace to the safety of travel. It is not essential to the township’s liability that the trustee should have actually known, or even believed, that the stone ás situated was likely to occasion runaways, but it is necessary that he should have had his attention directed to it in that connection — that he should have had knowledge that the safety of the highway in that way was questioned, or was subject to question.” (Page 379.)
Under the statute the county is not made liable because of neglect to keep a bridge in safe condition for travel, but is held only for injuries resulting from defects of which the chairman of the board had five days’ notice. It having been held that notice to other members of the board does not meet the statutory requirements, it follows that the notice to the chairman must be personal. The authorities cited are conclusive that imputable notice is not sufficient, nor can knowledge be implied because of long continuance of the defect.
It is strongly contended that because the plan and original construction of the bridge, built under the supervision of the county commissioners, was defect ive, in that the abutment was not as long as the oak sill which was broken, and because of the repairing of the bridge by the county in 1899, when an unsound sill was taken out of the other end of the bridge and a new one substituted, and also when a brace was placed on one side of the bridge and the other side tied to a tree with a wire, there was actual notice of the defect which caused the injury. It is true that the sill which broke was not supported from end to end by the stone abutment, and also that .the superstructure, which was about as wide as the sill was long, extended somewhat over each end of the abutment; and it may also be taken as true that good engineering required an abutment as long as the superstructure was wide ; but probably no bridge constructed is perfect, either in plan or construction. Although the shoes of the iron arches did extend a little beyond the ends of the abutment, they were partly over, and were supported by, it. The bridge, faulty as it may have been, stood for nine years, and probably would have stood much longer if the sill had not become rotten. The faulty construction, if it may be so termed, of a bridge continuously used for nine years, as this one was, is not actual notice of the defect which caused the injury.
It might be remarked, as was done in Jones v. Walnut Township, supra, that “the particular defect causing the accident, if in existence at that time, was not specially called to the attention ” of the chairman. In accordance with the rule stated in McFarland v. Emporia Township, supra, and Cunningham v. Clay Township, supra, there must be actual notice not only of the physical condition of the bridge but also of the fact that such conditions resulted in making it unsafe.
In Maine there is a statute which makes twenty-four hours’ actual notice a condition precedent to a recovery for an injury received on a defective highway. In interpreting that act, in Smyth v. Bangor, 72 Me. 249, 252, the court remarked :
“Since the passage of the act of 1877, chapter 206, no recovery can be had against a town or city for an inj ury received through a defect in one of its highways, unless some one of its municipal officers, or highway surveyors, or road commissioners, had twenty-four hours’ actual notice of the defect. And the notice must be of the defect itself, of the identical defect which caused the injury. Notice of another defect, or of the existence of a cause likely to produce the defect, is not sufficient.”
In the case of Rogers v. Shirley, 74 Me. 144, 147, the same court said :
“The call now is for twenty-four hours’ actual notice to the municipal officers, highway surveyors, or road commissioners of the town, of the defect or want of repair which is the cause of the accident, provable, as in other cases where actual notice is required, by circumstances showing personal knowledge on the part of the party to be notified, or information conveyed to him by others, of the existing facts. Nor can one be said to have actual notice of such a thing as this statute has reference to until both the character, and approximately the location upon the face of the earth,-of that which constitutes the defect, is in some way made known to him.”
It was held in Harley v. Bowdoinham, 88 Me. 293, 34 Atl. 72, that actual notice provided for in the statute was something more than an opportunity to acquire notice by the exercise of due care and diligence, and that notice that all the culverts were in bad condition was not actual notice of a particular defect in one of them. In Gurney v. Rockport, 93 Me. 360, 45 Atl. 310, it was held, under the statute mentioned, that “ knowledge of a cause likely to produce a defect is not actual notice of a defect resulting from that cause.” See, also, Carleton v. Caribou, 88 Me. 461, 34 Atl. 269.
While it can be said that the chairman of .the board knew of the plan and general character of the bridge, there was no testimony that the identical defect which caused the injury was known to him, or that it had been brought to his attention within the statutory time; indeed, plaintiff’s testimony showed that when the bridge was repaired, in December, 1899, an examination of the entire structure was made by the county commissioners, in company with a mechanic, with a view of finding defects, and such as were found were then repaired. The mechanic who made the repairs for the county was directed to repair not only the defects then discovered by him but any other he might detect while at work, and this he did, leaving the bridge, as he said, in a safe condition. The argument that the chairman of the board then had an opportunity to learn, and should have known, that the sill was defective, is not good. As already shown, actual notice is more than an opportunity to learn or know of defects. Even if it were shown that the chairman failed to exercise due care in the inspection of the bridge, that would not have been proof of actual notice within the meaning of the statute. We conclude that proof of actual notice was not produced, and, therefore, the court rightly sustained the demurrer to the evidence.
There is nothing material in the claims of error in overruling the motion for a new trial.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-12,
108,
-36,
-36,
-40,
96,
74,
88,
73,
-109,
-11,
83,
-113,
-62,
-119,
99,
-9,
127,
-31,
57,
68,
-9,
19,
2,
-110,
-13,
-13,
-60,
-69,
104,
116,
-9,
78,
32,
10,
-99,
-26,
72,
-51,
-36,
-114,
14,
8,
-19,
-39,
-56,
60,
127,
6,
79,
53,
-114,
-45,
47,
20,
-61,
40,
44,
-53,
-86,
81,
-80,
-116,
-107,
108,
20,
49,
6,
-98,
-125,
72,
46,
-112,
-75,
0,
-68,
115,
-74,
-126,
-11,
11,
-103,
9,
-10,
34,
48,
37,
-17,
-84,
-120,
6,
118,
9,
-90,
-124,
9,
-54,
1,
-73,
-99,
116,
82,
47,
122,
-26,
65,
-35,
104,
-93,
-54,
-78,
123,
-49,
60,
-102,
1,
-17,
-117,
50,
115,
-52,
-13,
92,
69,
51,
27,
-97,
-8
]
|
The opinion of the court was delivered by
Atkinson, J. :
This was an action by Frank S. Thomas, doing business under the firm name and style of M. A. M^ad & Co., of Topeka, Kan., against the Atchison, Topeka & Santa Fe Railway Company, to recover $48,888, damages for the breach of a contract. Verdict and judgment were rendered for plaintiff in the sum of $20,000.
In June, 1896, Frank S. Thomas and one IT. S. Montgomery, with whom he had for the purpose formed a copartnership, in the name of the latter entered into a contract with the Atchison, Topeka & Santa Fe Railway Company to inaugurate a uniform time service and establish a system of inspection of clocks used by defendant, and watches used by its employees, over its several lines of railroad. As a part of the contract with defendant, Montgomery, who was a practical watchmaker, was by defendant ap pointed its general watch and clock inspector, with a salary of $500 per annum. Thomas agreed, as a part of the contract, to finance the enterprise, pay Montgomery a salary of sixty dollars per month, and share equally the profits of the business with the latter. Defendant refused to appoint Montgomery its general watch and clock inspector until all his debts were paid, that it might not be annoyed by his creditors. Thereupon Thomas paid about $3000 of Montgomery’s debts, to constitute him eligible for appointment. Thomas also agreed to superintend, and at his own expense, through Montgomery, rate, regulate and repair all clocks in use by defendant along its lines of railroad; and inspect, rate and regulate the watches of those employees of defendant who were required to carry watches to conform to the requirements of the time-service system. In consideration therefor defendant agreed, through its general manager, that Thomas and Montgomery, in the name of the latter, should have the right to supply and sell to the employees of defendant certain watches of a uniform character and of a standard to meet certain requirements. The contract received the aid and encouragement of the company. A circular was issued by the general manager defining the time service and its requirements. It announced that the employees in the operating department of the road would be required to carry watches to meet a certain standard. The circular also called the attention of the employees to the fact that, while any watch which would come up to the required standard would be sufficient, watches meeting the required standard could be purchased of Montgomery, as general watch and clock inspector, at reasonable prices and on monthly instalments. Thomas and Montgomery caused to be constructed by the American Waltham Watch Company watches of a certain model and of a standard to meet the requirements of defendant, and caused to be placed thereon their trade-mark, the words, “ Santa Fe Route,” which trade-mark they had caused to be copyrighted in the name of Montgomery, who assigned to Thomas one-half interest therein. In the sale of these watches to the employees of defendant the note of the purchaser was taken, payable to the order of H. S. Montgomery, in monthly instalments of five dollars each.
This contract continued until July 1, 1897, a little more than one year, when it was terminated by the company without the consent of plaintiff. Its termination was effected by a circular issued by the president of the railway company. It was a general one prohibiting the employees of the company from engaging in private business, and the effect was to disqualify Montgomery, as general watch and clock inspector of the railway company, from further engaging in the sale of watches to the employees of defendant, unless expressly authorized by the president to do so. This disqualification of Montgomery had the effect to terminate the contract as to Thomas. It was claimed by Thomas that in the sale of watches to the employees of defendant he could only successfully operate through Montgomery, as he had been doing.
Soon after the issuing of this circular Thomas and Montgomery went from Topeka to Chicago to confer with President Ripley with reference to the effect of the circular on Montgomery, and on the business of selling watches to the employees. The president was firm in the position that Montgomery could not continue general watch and clock inspector of defendant and at the same time engage in the sale of watches to employees. He declared that Montgomery must quit the sale of watches, or discontinue the duties of inspector. Thomas explained to President Ripley the contract between himself, Montgomery, and defendant, made through the general manager of the company; explained that he and Montgomery were partners in the enterprise ; represented to the president that to apply the provisions of the circular to Montgomery, and thereby cause his discontinuance of the sale of watches to employees, or the discontinuance of the sale of watches to the employees through Montgomery, would be ruinous to the business ; that he had financed the enterprise, and had expended large sums of money in inaugurating the time service for defendant; that there were a large number of watches of the special model and design which would be without a market and worthless ; that he had on hand many instalment notes of the employees, taken in the name of Montgomery and given for the purchase of watches ; that these notes would be difficult of collection from the employees ; that the employees would pay the notes more readily when made payable, and apparently belonging, to Montgomery, an officer of the company, than if made or assigned to another; and that it would result in great financial loss and be ruinous to him.
The claim is made by Thomas that defendant, through President Ripley, admitted that it had been greatly benefited by the time service. The claim is also made that the president then stated that in consideration of the money advanced by Thomas in inaugurating the time service, and in compromise of the claim for the damage the latter would sustain from the termination of the contract, the company would reimburse him for the money he had expended in inaugurating the time-service system ; that he would give to Thomas the right to sell to the employees of defendant 4800 watches of the model bearing the “Santa Fe Route” trade-mark, with the privilege of taking from the employees orders on the treasurer-authorizing the company to deduct five dollars per-month from their earnings in payment for the watches-purchased; that the company would, in so far as it. was able to do so, collect these orders for plaintiff, and also undertake to collect from its employees, so> far as possible, the instalment notes theretofore given in the name of Montgomery. The further claim is-made by Thomas that he agreed to this proposition of settlement; and also that he undertook and agreed to-sell to the employees of defendant 4800 watches of the model bearing'the trade-mark.
Thomas, through Montgomery, accepted from defendant an amount in satisfaction of his claim for-money advanced in installing the time-service system. The company collected from its employees, in so far as it was able to do so, the instalment notes given to. Montgomery in payment for watches. Under the name of M. A. Mead & Co. Thomas entered upon the new arrangement with the company, through President Ripley, for the sale of watches, and sold 72fr to the employees of defendant on the order system. The orders so taken were protected on the books of the company and collected for plaintiff from the personal earnings of the employees giving the orders. The sale of watches under this arrangement was discontinued on January 1, 1900, due to the company’s refusing longer to accept and collect orders given by its employees. Plaintiff then brought this action,, claiming damages to the amount of $48,888 — a loss of twelve dollars profit on each of the 4074 watches remaining unsold of the 4800 watches plaintiff claimed the right to sell under the arrangement.
The defendant company filed a general denial, but upon the trial of the case, interposed numerous defenses to plaintiff’s claim. The trial resulted in a verdict and judgment for plaintiff in the sum of $20,-000.
Numerous errors are assigned by the railway company ; among others, that the court erred in giving instruction No. 16, which was as follows :
“If you find from a preponderance of the evidence that the plaintiff is entitled to recover in this action,' then his measure of damages would be the profits on the number of watches which he has shown by a preponderance of the evidence he could have sold and was prevented from selling to the employees of defendant company by reason of defendant refusing to protect such sales on the pay-roll of the company — not exceeding in amount the sum of $48,888.”
It is the contention of defendant that plaintiff’s claim for damages is too remote and contingent; that it is open to the charge of being prospective; and that it enters the domain of speculation. It is urged that, for the reasons assigned, plaintiff’s claim for damages cannot constitute the basis for a valid judgment ; that instruction No. 16, relative to the measure of plaintiff’s claim for damages, was erroneous.
On January 1, 1900, when plaintiff’s right to sell watches to the employees of defendant was terminated, he had sold all the watches of the design or model bearing the trade-mark which he had on hand at the time the arrangement was made with defendant giving to him the right to sell 4800 watches to the employees. Plaintiff was under no legal obligation to purchase watches of the model bearing the trade-mark to make up or complete the 4800 watches. His'claim for damages is based wholly upon the profits he claims he could have made — not upon watches owned by him, or upon watches which he was under a legal obligation to purchase, but upon watches that he could have purchased, and that he claims he could have sold to the employees of defendant at a profit of twelve dollars each, had his arrangement with defendant not been terminated. The only testimony upon the question of damages was thatmf plaintiff himself, who testified that he would have realized a profit of twelve dollars upon the sale of each of the remaining 4074 watches, could he have sold them to the employees under the arrangement he had with the company.
It is the aim and purpose of the law to give to a party injured by the breach of a contract all the damages which he may suffer from such breach; and where the contract is made with a view to future profits, and such profits are within the contemplation of the parties, they may, where they can be established with certainty, form a just measure of damages. But the right to recover damages for anticipated profits has always been, and will continue to be, a troublesome question. No fixed rule can be laid down which, when applied to the facts of a case involving damages for anticipated profits, will determine whether a recovery may or may not be had. Each case must be determined upon the facts peculiar to itself. The authorities, both in the United States and England, are agreed as a general rule, subject to certain well-established qualifications, that anticipated profits prevented by the breach of a contract are not recoverable in the way of damages for such breach; but in the application of this principle the same uniformity in the decisions does not exist. In some cases of almost exact analogy -in the facts the adjudications of the courts in the different states are directly opposite.
In Gas Co. v. Glass Co., 56 Kan. 614, 44 Pac. 621, it was sought to recover damages for breach of a contract in which the gas company agreed to deliver at the works of the glass company for ten months all the natural gas necessary to run a twelve-pot glass factory for the manufacture of bottles. The main controversy in the case was over the allowance of prospective profits. It was contended by plaintiff that the net profits would have reached the sum of |10,000. In the opinion by Mr. Justice Johnston it was pointed out that the success of the venture did not depend merely upon the supply of fuel. The manufacture of glass in Kansas at that time was a new enterprise. It was subject to many contingencies. The material found had not yet been used for making glass, nor had a market been found for the product; it must be sold on a new market, and at a price in excess of the.cost of production to yield a profit. This would involve the cost of proper advertising, the building up of a credit and reputation, the state of the glass trade, the competition that would have to be met, the rates of shipment, and the cost of the sale of the product. It was held that the question of profits was largely a matter of speculation and conjecture, and plaintiff was denied a recovery. This decision finds support in the following cases decided by this court: States v. Durkin, 65 Kan. 101, 68 Pac. 1091; Investment Co. v. Burdick, 58 id. 517, 50 Pac. 442; Walrath v. Whittekind, 26 id. 482; M. K. & T. Rly. Co. v. City of Fort Scott, 15 id. 435.
In M. K. & T. Rly. Co. v. City of Fort Scott, supra, it was sought by the city to recover damages for breach of a contract in which the railway company had agreed, in consideration that the city would issue to it $100,-000 of the bonds of the city, to construct its lines of railroad through the city and locate therein its division headquarters, roundhouse, machine-shops, etc.. Testimony was admitted tending to show a decline in the population of the city, and a depreciation generally in the value of real estate, after the construction of the road through the city and the location of the division headquarters, roundhouse and machine-shops elsewhere. It was held that the claim of the city was too speculative, remote, and uncertain ; that in an action ex contractu only the direct and pecuniary loss of the city was the proper measure of damages. It was held that there was no certain connection of cause and effect, between a failure to build roundhouses and machine-shops and the decline of population or the decrease of values in real estate. In the opinion by Mr. Justice Brewer many contingencies ■ were referred to which might produce the results complained of but could not be traced to the act of the railway company.
Plaintiff, in support of his claim that the damages he recovered are not subject to the charge that they are too'speculative, remote and contingent to constitute the basis for a recovery, directs our attention to the fact that this court recognized anticipated profits as the basis of a recovery in each of the following cases : Hoge v. Norton, 22 Kan. 374; Osborne & Co. v. Stassen, 25 id. 736; Brown v. Hadley, 43 id. 267, 23 Pac. 492, and Town Co. v. Lincoln, 56 id. 145, 42 Pac. 706. These cases were cited for the same purpose in Gas Co. v. Glass Co., supra. In distinguishing the cases cited from that case, and the reasoning applies equally well to the facts in the case at bar, it was said :
“Much reliance is placed upon the rulings of this court in the cases of Hoge v. Norton, supra; Brown v. Hadley, supra, and Town Co. v. Lincoln, supra. All of these cases are close to the border line dividing profits which may be allowed from those which should be rejected. In each of them, however, the business upon which profits were allowed was not new or untried, but had been established and carried on to such an extent in the community that a safe basis of calculation could be found. In Hoge v. Norton, supra, profits were estimated on the cattle business, which is well established in Kansas, and is carried on to such an extent that the laws of feeding and growth are well understood, and the results reasonably certain. In Brown v. Hadley, supra, the business was dairying, which it was said has been extensively engaged in ever since the settlement of the state, and that therefore the gains could be estimated by men of experience in that business with reasonable certainty. In Town Co. v. Lincoln, supra, the breach of the contract resulted in breaking up an established business, and the profits that had been made for a reasonable period next preceding the time of the breach furnished a reasonably certain basis of calculating those that would have been realized if no breach had occurred.” (Page 624.)
In Central Coal & Coke Co. v. Hartman, 111 Fed. 96, 49 C. C. A. 244, the only damages claimed in the petition, and the only losses which the plaintiff sought to prove at the trial, were the losses of some of the expected profits of his business of buying and selling coal within a period of about two years.. Plaintiff was denied a recovery on the ground that the anticipated profits were too remote and speculative. Upon the question of the right to recover’ damages for anticipated profits the court laid dowa the following rule :
“The general rule is that the anticipated profits of a commercial business are too remote, speculative, and dependent upon changing circumstances to war rant a judgment for their loss. There is an exception to this rule, that the loss of profits from the interruption of an established business may be recovered where the plaintiff makes it reasonably certain by competent proof what the amount of his actual loss was.”
In The Howe Machine Co. v. Bryson, 44 Iowa, 159, 24 Am. Rep. 735, defendant was not permitted to recover damages claimed on a breach of contract, being the failure of plaintiff to supply defendant with sewing-machines to sell. The damages claimed were the anticipated profits that defendant contended he could have made on commissions from anticipated sales of sewing-machines within a limited territory. These were considered too remote, contingent, and speculative.
It is not.claimed that the company prohibited plaintiff from selling watches to the employees of defendant, but only that it refused to protect upon its books, and collect, after January 1, 1900, orders of the employees given to plaintiff in payment for watches sold. Plaintiff had no guaranty from the company that he could sell 4800 watches, or any number of watches, to its employees. The employees had not been required ■to purchase this model, or design, of watch. Any watch which would meet the required standard of the time service was sufficient. Plaintiff had no assurance that he would be able to sell these watches to the employees ; he had no assurance that, if these watches should be sold to the employees, it would continue to be at a price at which he would derive a profit; nor had he assurance that there would be a collection of the orders given for watches sold. In the sale of these watches he might be required to meet in competition, along the thousands of miles of defendant’s railroad, all the vendors of watches that would meet the required standard. The watches he was offering for sale were of a fixed design, or model. It is a well-known fact that in all such mechanical productions new and improved models are frequently being placed upon the market. Plaintiff, in the sale of watches to the employees of defendant, might have to meet and compete with vendors of watches having the later improvements to be found in these newer models.
The greatest reason plaintiff could have to believe that he might be able to sell watches to the employees of the company was that his prices were reasonable and his terms easy; ‘but he was given no assurance by defendant, or by its employees, nor had he assurance from any source, that competitors would not offer watches to the employees of defendant at a less price and on easier terms. He was not guaranteed the exclusive right to sell watches to the employees of defendant upon the order system ; nor was he guaranteed the right to sell watches to the employees of defendant through the local inspectors of defendant.
The profit which plaintiff might make was not only contingent upon the fact that his model might continue a salable one, but contingent upon the number of watches he might be able to sell; and also contingent upon the price at which he might be able to sell them, and that he might be able to collect for the watches sold. The record discloses that under the last arrangement with defendant he had sold 726 watches in about two and one-half years. At that rate it would require more than fourteen years to dispose of the remaining'4074 watches ; but there are no means of foreseeing, with a reasonable degree of certainty, that he would ever be able to sell them, or that there would be a profit to him on those he might sell.
Plaintiff does not sue for losses already sustained, but for gain, or profit, prevented by defendant. The unquestioned rule of the law is that damages of this character must be capable of being established with a reasonable degree of certainty, must be the natural and proximate consequence of the breach, and be free from conjecture and speculation. This court is unqualifiedly committed to this rule. (Gas Co. v. Glass Co., supra, and M. K. & T. Rly. Co. v. City of Fort Scott, supra.)
In further support of this well-recognized rule see the following authorities : Eckington &c. Ry. Co. v. McDevitt, 191 U. S. 103, 24 Sup. Ct. 36, 48 L. Ed. 112; E. W. Bliss Co. v. Buffalo Tin Can Co., 131 Fed. 51, 65 C. C. A. 289; Lowry v. Tile, Mantel & Grate Ass’n, 106 id. (C. C.) 38, 46; Allis v. McLean, 48 Mich. 428, 12 N. W. 640; Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. 718, and notes; Jones v. Call, 96 N. C. 337, 2 S. E. 647, 60 Am. Rep. 416; Chicago City Ry. Co. v. Howison et al., 86 Ill. 215; Masterton v. Village of Mount Vernon, 58 N. Y. 391; Bridges v. Lanham, 14 Neb. 369, 15 N. W. 704, 45 Am. Rep. 121; Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200, 14 Sup. Ct. 523, 38 L. Ed. 411; Freeman v. Clute, 3 Barb. 424; Todd v. Minneapolis & St. Louis Ry. Co., 39 Minn. 186, 39 N. W. 318; Masterton v. The Mayor &c. of Brooklyn, 7 Hill, 61, 42 Am. Dec. 38, and notes; Gray v. Smith, 83 Fed. 824, 28 C. C. A. 168; Todd v. Keene, 167 Mass. 157, 45 N. E. 81; Bierbach v. The Goodyear Rubber Co., 54 Wis. 208, 11 N. W. 514, 41 Am. Rep. 19; Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147; 8 A. & E. Encycl. of L., 2d ed., 608, 618; 13 Cyc. 36, 57. Many others might be cited. We would not be understood as holding, or implying, that damages may not be recovered on a breach of contract for loss of anticipated profits where, under the contract, the damages claimed would be the natural and proximate consequence of the breach, and such as might be rendered reasonably ■certain, and do not enter the domain of speculation.
While it is not always easy to draw the'line between anticipated profits which are the legitimate elements of damages and those which are too remote, contingent, or uncertain, it is quite apparent that under the authorities cited plaintiff’s claim for damages is entirely prospective. The profits claimed depend upon too many contingencies and are too uncertain to furnish a safe guide in fixing the amount of his damages. It carries with it too much of the element of speculation to be the subject of judicial determination.
For error of the court in instructing the jury on the measure of plaintiff’s damages the judgment is reversed.
All the Justices concurring.
Cunningham, J., not sitting. | [
-80,
122,
-68,
-49,
26,
98,
56,
-102,
96,
43,
-91,
83,
-95,
-49,
29,
113,
-17,
125,
-48,
107,
-10,
-125,
6,
98,
-46,
-13,
-7,
-51,
-71,
79,
-74,
-34,
72,
48,
74,
-43,
102,
66,
68,
30,
-114,
-92,
41,
-31,
-7,
16,
48,
120,
20,
79,
81,
-114,
-9,
42,
28,
-53,
109,
40,
-21,
-88,
-48,
-15,
-117,
-121,
111,
20,
16,
4,
-108,
-121,
-40,
30,
-104,
53,
0,
-32,
113,
-90,
-58,
116,
33,
-23,
8,
98,
99,
34,
25,
-89,
120,
-68,
7,
-42,
-121,
-25,
-90,
120,
35,
105,
-76,
-100,
-26,
22,
7,
126,
-12,
21,
19,
45,
3,
-117,
-78,
-95,
-113,
102,
-105,
-125,
-21,
33,
49,
112,
-50,
34,
93,
6,
58,
-101,
-97,
-108
]
|
The opinion of the court was delivered by
Mason, J. :
Upon a personal-injury claim Isaac Davis recovered a judgment for $2000 against the Atchison, Topeka & Santa Fe Railway Company, and the defendant prosecutes errror. A former judgment for plaintiff in the same case was reversed upon the ground that one of the special findings made by the jury was against the evidence. (Railway Co. v. Davis, 64 Kan. 127, 67 Pac. 441.) In that opinion the essential facts out of which the litigation grew were stated.
The first assignment of error relates to a question of pleading. The petition alleged that while plaintiff was helping to load a rail upon a fiat car the train of which it was a part was negligently started without notice to him, causing a severe wrench of his wrist; that such premature starting of the train was due to a signal given by an employee of the defendant; that plaintiff could not learn what particular employee gave the signal, but that it was either the roadmaster, the conductor, or the brakeman ; and that the facts in this respect lay peculiarly within the knowledge of the defendant. Defendant filed a motion to require plaintiff to make his petition more definite and certain by setting out specifically which of the employees designated was claimed to have been responsible for the starting of the train, and also a motion to strike out the allegations that plaintiff could not learn the facts in this regard and that they lay peculiarly within the knowledge of the defendant. Both motions were denied. In this there was no error. The plaintiff pointed out the specific act of negligence complained of, and if it was true that he could not learn by what agent of the company it was committed this was the utmost he could do, whether or not the defendant had any better means of information. If it could be gathered from the record that the allegation of want of further knowledge was made in bad faith, and that the defense was hampered by an intentional concealment, a very different question would be presented; but, in fact, the evidence supported the averment.
All the other assignments relate to errors involved in the overruling of a motion for a new trial, and two objections are made to their consideration. The first is based upon a claim that the motion for a new trial was prematurely filed, and for that reason could not have been sustained. The facts, as disclosed by the record, appear to be as follows : When the verdict and special findings were first returned one of the latter was found to require a more definite answer, and the jury were sent out to correct the defect. While they were still out for this purpose the defendant’s attorney handed to the clerk the motion for a new trial. An affidavit of the attorney states that as he did so he requested that the motion be filed when the jury should report. An affidavit of the clerk states that the attorney told him to file the motion and said nothing about holding it. The motion was in fact filed before the final return of the jury. The clerk’s indorsements upon the motion and upon the special findings purport to show the hour of filing, being the same in each case — eleven o’clock a. m. The trial court considered the motion upon its merits, and denied it. Granting that a motion for a new trial filed while the jury are still out is not entitled to consideration, no occasion for the application of the. principle is here shown. The return of the findings and the filing of the motion were practically simultaneous, and, especially in view of the fact that the court heard and decided the motion upon its merits instead of striking it from the files or refusing to consider it, it will be treated as having been filed at a proper time.
The second objection is based upon the fact that the record discloses that upon the hearing of the motion for a new trial the defendant’s attorney argued certain enumerated reasons for setting aside the verdict, and no others. It is contended that this shows an effective waiver of all the grounds not included in the list of those argued. It is true that the trial court is entitled to know upon what grounds the defeated party claims a right to a new trial; and any conduct on the part of the attorney presenting the motion that might justly lead the court to understand that he relied only upon certain of the matters alleged in the motion and not upon others would doubtless be treated as a waiver of the latter. For illustration, if the court were to inquire of the attorney upon what grounds he relied, and in response lie should name only a part of those set out in the motion, this might be deemed a waiver of any to which he made no reference ; but no such effect can be given to the mere omission to argue all the grounds stated, without any showing of other circumstances affecting the matter.
It is contended by plaintiff in error that there was no support in the evidence for the general verdict or for certain of the special findings. It appears that no one but the plaintiff was aware of his being injured at the time of the occurrence complained of; that his work was not interrupted, and that he continued his duties as foreman of the section hands for more than seven months afterward, and until he was discharged by the company ; but these considerations do not affect the question whether there was any evidence in support of his claim. It was found by the jury, in answer to an interrogatory submitted to them, that the signal to start the train was given by the conductor or roadmaster, and it is especially urged that there was an entire lack of testimony to justify this finding. It is true that no witness professed to have seen the signal given at this particular time, but the engineer stated that he had in no instance started the train without receiving a signal to do so. This was some evidence that a signal was given. There was also testimony that the signals to start were generally given by the roadmaster, but sometimes by the conductor. As intimated in the opinion accompanying the reversal of the former judgment, the jury were authorized to draw the inference that one or the other of these employees gave the signal upon the occasion in question. In response to an interrogatory whether plaintiff could have released his hold on the rail when he discovered that the train had started the jury answered, “not with safety to himself and men.” It is argued that this reply was evasive and that the question could and should have been answered by a direct yes or no. Granting that this is true, the next finding was that plaintiff was prevented from letting go of the rail by the danger to himself and others, and the practical effect of the two answers was the same as though the jury had said that plaintiff, as a physical fact, could have released the rail, but to have done so would have endangered his own safety and that of others. The practice of giving argumentative and indirect answers is not to be commended, but it cannot be said in this instance that the fault was so flagrant as to require a reversal of the judgment.
A final complaint is directed against a finding that plaintiff would have been injured just the same even if he had released his hold upon the rail when he discovered that the train was in motion. The former judgment was reversed by reason of the same answer’s having been given to the same question; but while such answer was in direct conflict with the plaintiff’s, own testimony as it stood when that ruling was made, at the later trial he modified his earlier statements so that such inconsistency no longer exists.
The judgment is affirmed.
All the Justices concurring. | [
-16,
96,
-19,
-97,
26,
96,
42,
-70,
69,
-127,
-89,
83,
-51,
-53,
9,
37,
-2,
63,
-48,
43,
-10,
-125,
7,
-29,
-46,
-9,
123,
-59,
-73,
75,
100,
-34,
77,
48,
74,
-43,
102,
74,
-59,
28,
-50,
12,
42,
-28,
25,
32,
48,
126,
22,
79,
49,
-98,
-13,
42,
24,
-61,
45,
45,
-21,
-84,
-16,
-15,
-126,
13,
124,
18,
51,
36,
-100,
-89,
76,
60,
24,
49,
3,
-23,
51,
-76,
-126,
-12,
97,
-103,
8,
98,
98,
33,
29,
-17,
60,
-104,
47,
30,
15,
-26,
-78,
1,
105,
45,
-106,
-35,
118,
20,
7,
124,
-3,
13,
25,
60,
-125,
-113,
-80,
-79,
-49,
116,
-98,
55,
-21,
-127,
16,
100,
-52,
-86,
93,
7,
58,
-101,
-97,
-97
]
|
Per Ouriam:
The only legal question presented in this case is whether the district court of Cherokee county lost jurisdiction to try a case at Columbus in December because the case was called at an adjourned term, which opened at Columbus in October and was adjourned over an intervening term of the same court held, as authorized by law, at Galena, in said county, in the month of November. It is conceded that this question has been answered in the negative in The State v. Crilly, 69 Kan. 802, 77 Pac. 701. We are asked to reverse the ruling in that case, which, after careful consideration, we decline to do.
The judgment in this case is affirmed. | [
-43,
-32,
-11,
12,
42,
-31,
34,
-108,
67,
-77,
55,
83,
-23,
-54,
16,
121,
-90,
107,
117,
121,
-31,
-73,
55,
105,
88,
-13,
-29,
-43,
-5,
78,
118,
-17,
12,
48,
74,
85,
70,
74,
-115,
-34,
-114,
-120,
-71,
106,
80,
-61,
60,
105,
90,
15,
49,
-81,
-32,
42,
28,
-53,
-23,
44,
89,
105,
83,
89,
-104,
5,
79,
4,
-112,
-92,
-104,
-126,
-56,
62,
-48,
61,
0,
-24,
113,
-90,
-122,
117,
15,
-103,
-88,
-90,
98,
33,
12,
-17,
-84,
-115,
14,
124,
-99,
-26,
-119,
88,
107,
12,
23,
-67,
92,
52,
79,
120,
-82,
5,
93,
116,
14,
-50,
-44,
-77,
-113,
36,
-118,
-110,
-1,
-57,
113,
113,
-35,
-2,
90,
-62,
16,
27,
-49,
-40
]
|
The opinion of the court was delivered by
Greene, J. :
Clara Gassaway, a girl thirteen years of age, was found by the probate court of Wyandotte county to be leading a vagrant life and not attending school, and was committed to the state industrial school for girls, where she is now detained by its matron. By this proceeding she seeks to obtain her release. The illegality of her detention, as claimed, is the lack of power in the probate court to commit her to such school. The following are her contentions : First, that the powers of the probate court are limited by section 8 of article 3 of the constitution, and that the authority attempted to be exercised in this case is not one of those there enumerated ; second, that section 7147 of the General Statutes of 1901, in so far as it attempts to confer upon the probate court power to commit the persons therein named to the state industrial school, violates the provision of the constitution referred to, and hence is void.
Section 1 of article 3 of the constitution places the judicial power of the state in the supreme court, district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law. It will be observed that a probate court is a judicial tribunal. Section 8 of the same article provides that probate courts shall have such jurisdiction of the property of certain persons as shall be provided by law, and shall also have jurisdiction in habeas corpus. This section does not prohibit the legislature from imposing other and additional judicial duties on the probate courts not inconsistent with, and the exercise of which would not interfere with, the performance of those duties fixed by the constitution.
Section 7147 of the General Statutes of 1901 confers power on the probate courts to commit to the industrial school for girls “any girl under sixteen years of age who is incorrigible and habitually disregards the commands of her father, mother, or guardian, and who leads a vagrant life, or resorts to immoral places or practices, and neglects or refuses to perform labor suitable to her years and condition, and to attend school.” Before a girl can be committed a complaint in writing must be filed stating the charges made, and the probate court must give five days’ notice to all persons interested before an investigation may be held, which, of course, includes the girl against whom the complaint is made. She may appear in person and be represented by counsel, produce witnesses on her own behalf, and cross-examine those produced against her. In the determination of the questions the court exercises judicial discretion and judgment, determines from the evidence what would be to the best interest of the state and of the girl, and renders its judgment accordingly. The authority thus exercised is purely judicial, and is not inconsistent with the full and free exercise of the duties imposed upon such courts by the constitution. .We have, therefore, a judicial tribunal, created by the constitution, exerercising judicial functions conferred by statute.
In Young v. Ledrick, 14 Kan. 92, it was held that the probate courts may receive judicial powers other than those granted by the constitution. No reason has been given, and we do not believe one can be given, why this may not be true. The act conferring this jurisdiction upon the probate courts is not. in violation of any provision of the constitution ; indeed, we think that the provision referred to contemplates the exercise by the probate courts of such other judicial functions as the legislature may confer upon them.
The petitioner is remanded.
All the Justices concurring. | [
-16,
-22,
-3,
-68,
26,
97,
26,
26,
115,
-13,
37,
-45,
-85,
-42,
4,
121,
27,
47,
81,
121,
-57,
-74,
67,
73,
22,
-13,
-73,
-35,
59,
109,
-12,
95,
76,
48,
10,
-43,
70,
74,
-43,
-44,
-114,
5,
-118,
-23,
81,
-64,
46,
57,
26,
14,
113,
-2,
-29,
42,
30,
-54,
-88,
111,
-39,
-83,
9,
-103,
30,
-97,
107,
6,
-109,
100,
-102,
-89,
-56,
44,
24,
17,
-127,
-24,
115,
-90,
6,
-12,
47,
-37,
-84,
98,
98,
1,
44,
-17,
-72,
-55,
30,
126,
-67,
-89,
-110,
25,
99,
77,
-108,
-99,
33,
16,
11,
-10,
-90,
6,
31,
108,
13,
-49,
-10,
-79,
10,
-72,
-102,
18,
-21,
101,
48,
81,
-52,
-110,
121,
-125,
115,
-45,
-114,
-72
]
|
The opinion of the court was delivered by
William R. Smith, J.:
Dysert & Case, real-estate agents, brought an action against Johnson to recover a commission alleged to have been earned by them in making a sale of his farm. Defendant below denied liability and offered evidence tending to show that he never employed plaintiffs to make the sale, and, further, that one Blair, who bought the land, was induced thereto by a Mr. Baker, who alone was employed by the defendant as his agent to procure a purchaser. Judgment went against Johnson, of which he complains.
To support their case plaintiffs below introduced the deposition of Blair, the purchaser. On cross-examination counsel for Johnson asked this question of the witness:
“You may state who, as agent, if any one, induced you to enter into this contract, or to enter into negotations with Mr. Johnson for the purchase of his farm.”
The question was objected to by plaintiffs on the ground of incompetency, calling for a conclusion of the witness, and usurping the province of the jury. The objection was sustained by the court. The answer, “Mr. Baker,” was not read to the jury. Plaintiff in error contends that no other person than the buyer of the land could have had knowledge of the moving cause which induced him to make the purchase, and, as the agent who was the primary, producing and efficient cause in effecting the sale can alone recover a commission, that the answer of the witness ought to have been received to assist the jury in determining that question.
We think the answer was properly excluded. The cases of Gardom v. Woodward, 44 Kan. 758, 25 Pac. 199, 21 Am. St. Rep. 310, and Bice v. Rogers, 52 id. 207, 34 Pac. 796, are not in point. There parties were alleged to have made conveyances with intent to defraud creditors, or to hinder and delay them in the collection of theii' debts. The persons thus charged were permitted to testify directly respecting their intentions. The intent with which the acts were done-was the essential thing to be proved and decided. It was the very issue to be tried. These cases rest on the proposition that the intent is a fact and not an opinion. The question before us received consideration in Flanders v. Cottrell and another, 36 Wis. 564, 570, 571, where in an action by a broker to recover a commission for the sale of a printing-press, the question litigated was whether plaintiff was instrumental in enabling defendants to make a sale. The deposition of a witness, Cameron, one of the purchasers, was offered. The interrogatories and answers ruled out amounted to an offer or attempt to prove by him that whatever one Noonan said to induce the purchase-had no weight with him, but that he was prompted by other influences. The court said :
“We think that the testimony was properly rejected. The witness was allowed to testify to all facta within his knowledge, bearing upon the issue ; and it was for the jury, and not the witness, to determine from all the facts proved, whether the sale of the press was effected through the instrumentality of Noonan, or otherwise.
“We are very clearly of the opinion that the testimony in this case which the court rejected did not relate to an existing fact, but was merely an inference drawn by the witness from his own mental processes. We are not aware of the existence of any. rule of evidence which will justify the admission of such testimony.”
A like question arose in the supreme court of Nebraska. (Burkholder v. Fonner, 34 Neb. 1, 3, 51 N. W. 293.) In an action by a real-estate broker to recover compensation for making a sale on behalf of plaintiff, the purchaser of the land was sworn. After he had’ ■detailed all the facts in connection with the transaction so far as the witness was concerned, he was •asked by plaintiff’s counsel to state from whom he purchased the farm and upon whose representation he relied. An objection to the question was sustained. The court said :
“We are unable to see any error in the ruling. The question is clearly incompetent as calling for the conclusion of the witness upon a material issue in the case, which it was the province of the jury to determine. It was for the jury to say, from all the facts and circumstances proven, under proper instructions, whether or not Mr. Cox exchanged for the farm through plaintiff’s instrumentality.” (See, also, Stinde v. Blesch, 42 Mo. App. 578; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104.)
In the present case the witness Blair detailed the conversations had by him with Dysert & Case and Baker while the negotiations were on, and stated what was said to him and done by them respecting the sale of the farm. From such testimony the jury were to decide which of the two agents induced the sale, and whether the efforts of one of the other was the procuring and efficient cause. The question propounded reached into the domain of psychology and involved a speculative inquiry into the mental processes of the witness, his-susceptibility to the influence of argument, and his ability to distinguish between true and false logic. The jury were instructed that plaintiffs below could not recover unless their efforts constituted the primary, producing and efficient cause of the sale. This was in accord with the expressions of this court on the subject. (Eggleston v. Austin, 27 Kan. 245; Latshaw v. Moore, 53 id. 234, 36 Pac. 342. See, also, Whitcomb v. Bacon, 170 Mass. 479, 49 N. E. 742, 64 Am. St. Rep. 317; Hoadley v. Savings Bank of Danbury, 71 Conn. 599, 42 Atl. 667, 44 L. R. A. 321. and note.)
The wording criticized in one of the instructions,, in which reference is made to plaintiffs’ setting on. foot the negotiations resulting in a sale, must betaken in connection with the other directions to the-jury, from which by the positive language used there-can be no doubt that the court instructed them in accordance with the true rule.
The judgment of the court below is affirmed.
All the Justices concurring. | [
-79,
126,
-4,
-82,
10,
96,
32,
-102,
25,
-32,
-89,
83,
109,
-126,
16,
45,
-74,
45,
80,
106,
68,
-78,
87,
-85,
-42,
-45,
-38,
-51,
-75,
79,
-12,
95,
76,
48,
-62,
-43,
-26,
-62,
-55,
22,
-50,
-123,
8,
76,
-7,
64,
48,
11,
22,
75,
85,
-81,
-13,
46,
57,
-61,
109,
42,
107,
53,
-15,
-72,
-114,
-115,
125,
6,
-77,
100,
-104,
67,
-6,
14,
-112,
57,
1,
-56,
123,
-74,
-122,
-12,
15,
27,
8,
102,
98,
32,
-47,
-21,
112,
-104,
46,
-33,
-115,
-90,
-108,
88,
67,
73,
-66,
-97,
117,
64,
-89,
-4,
-29,
93,
-99,
108,
7,
-81,
-42,
-79,
-49,
118,
26,
75,
-5,
-123,
16,
113,
-49,
34,
93,
69,
82,
-101,
-114,
-84
]
|
The opinion of the court was delivered by
Atkinson, J. :
This is an original proceeding in mandamus by Jessie B. Scott to compel Fred L. Schwab, as county treasurer of Rawlins county, to accept from plaintiff, and issue to her his official receipt for, one-tenth of the purchase-price of the southwest quarter of section sixteen (16), township three (3) south, range thirty-three (33) west, in Rawlins county, the same being the first payment for school-lands belonging to the state of Kansas. Upon the application of plaintiff an alternative writ issued. It appears that on the 1st day of January, 1904, the premises were school-lands, unoccupied, and subject to settlement; that on said date plaintiff entered, and made settlement upon, thereon, and has since continuously occupied the same as her home ; that she has improved the property, and in all things complied with the statutes governing the entry of school-lands for resident purposes, the details of which are carefully recited in the writ. It further appears that on the 26th day of July, 1904, the petition of plaintiff was regularly heard before the probate court of Rawlins county, and the court found that she had settled upon, and improved, said lands as required by statute, and made and entered of record its judgment, which remains in force and effect; that thereafter, and on the same day, between the hours of four and five o’clock p. m., plaintiff presented to defendant, as treasurer of said county, at his office, a duly certified copy of the findings and judgment of the probate court, and tendered to defendant one-tenth of the purchase-price for said lands, and requested him to execute and deliver to her a receipt therefor ; that defendant refused to accept the money, and issue a receipt to her.
Defendant filed an answer, or return, which in effect admitted the averments of the alternative writ, and further alleged that on said 26th day of July, 1904, and prior to the hearing and adjudication of plaintiff’s claim, the probate court of Rawlins county found and made and entered of record its judgment that one Daniel C. Cashman had settled upon, and improved, said described lands as required by statute ; that' Daniel C. Cashman, prior to the time plaintiff presented to defendant the certificate of the probate court and made tender of payment, had presented to defendant his certificate from the probate court and paid to defendant one-tenth of the appraised value of said premises, and defendant had issued to him a receipt therefor. Plaintiff filed her motion to quash defendant’s answer, or return. The motion is the equivalent of a demurrer. (Crans v. Francis, Treas., &c., 24 Kan. 750.)
The question for determination is whether the fact that defendant had accepted from Cashman one-tenth of the purchase-price of the lands, and issued to him a receipt therefor, justified his refusal to accept from plaintiff one-tenth of the purchase-price for said lands and issue to her a receipt therefor. The question, though not squarely determined, has in effect been considered by this court in the case of Wilkie v. Howe, Treasurer, 27 Kan. 518. Although the controversy in that case was under chapter 122 of article 14 of the Laws of 1876, there is no material change between it and the present school-land law (Gen. Stat. 1901, §§ 6338-6379), in so far as the same is applicable to the single issue here presented.
In that case the plaintiff, Wilkie, presented to the defendant, Howe, as treasurer of Marion county, a transcript of the record of the judgment of the probate court allowing him to purchase the land, and tendered to Howe, as treasurer, the sum of forty-five dollars, it being one-tenth of the purchase-money. The defendant treasurer refused to receive the money, or give to Wilkie a receipt therefor, but appeared to favor one E. S. Moody, who claimed to be entitled to purchase the land. Chief Justice Horton, in delivering the opinion of the court, said :
' “The claim of the plaintiff is well taken. He made the first tender. He fully complied with the statute. It is not within the duty of the defendant as treasurer to inquire into any mere irregularities of the proceedings of the probate court of Marion county, or to decide between the separate judgments under which the claimants insist they have the right to purchase the land in controversy. His only duty in the premises, after the. probate court had adjudged that the plain tiff was entitled to purchase the land, when the plaintiff tendered to him the purchase-money therefor, was to receive and give him a receipt therefor. It was not his duty to look after the interests of any other person or claimant. (Comp. Laws 1879, ch. 92, pp. 854, 855, §§195-199.) The acceptance of the money and the issuance of a receipt therefor cannot in any manner prejudice the rights of any other person, nor deprive such other person of any interest in the land or of any remedy to which he may be entitled. The payment to the treasurer and the issuance of a receipt therefor does not determine the ultimate right of either the plaintiff or any other claimant, and the defendant might have accepted the money from both claimants and issued receipts therefor, as each claimant is supported by a judgment of a court of competent jurisdiction. The disposition of this case in favor of the plaintiff will not determine the question of title of the land adversely to Moody, but merely enables the plaintiff to enforce hereafter, in the way of ejectment or an action to quiet title, or other valid legal proceeding, any right which he has to the premises. Perhaps plaintiff might have proceeded without the possession of the treasurer’s receipt to contest with Moody the land claimed by him, but such a proceeding might lead to additional complications, and we think the course now being pursued the better one to be adopted. An action between plaintiff and Moody will decide the priority of settlement and cultivation.” (Pages 521, 522.)
Under the statutes providing for the sale of school-lands priority of adjudication by the probate court carries with it no rights to priority of recognition by the county treasurer. Nor does the fact that the county treasurer has, upon presentation of a transcript from the probate court, received and receipted for an instalment of the purchase-money for school-lands preclude the treasurer from accepting an instalment of the purchase-money for the same lands from, and re ceipting therefor to, another who presents a proper transcript from the probate court and makes a tender of the money. The county treasurer’s duties are ministerial; he can exercise no judicial powers in the premises. Defendant should have accepted plaintiff’s tender of money and issued to her his receipt therefor.
A peremptory writ of mandamus will issue.
All the Justices concurring. | [
-16,
-20,
-3,
-100,
58,
96,
74,
-102,
107,
-79,
52,
83,
-23,
-38,
4,
121,
50,
13,
81,
104,
-58,
-77,
91,
-21,
-106,
-13,
-39,
-33,
49,
92,
-28,
-41,
72,
32,
10,
-107,
-58,
66,
71,
-36,
-114,
2,
-119,
-64,
-37,
-32,
56,
41,
50,
72,
117,
46,
-13,
43,
29,
67,
104,
44,
-7,
-81,
88,
-15,
-86,
-105,
127,
6,
17,
-95,
-98,
-125,
72,
-86,
-104,
49,
0,
-24,
115,
-90,
-122,
-12,
11,
-87,
8,
96,
98,
99,
-76,
-17,
-72,
-104,
14,
119,
29,
-26,
-110,
88,
98,
12,
-68,
-99,
117,
80,
71,
-10,
-25,
4,
93,
44,
13,
-117,
-76,
-109,
-113,
60,
-102,
31,
-13,
34,
48,
65,
-115,
98,
93,
71,
58,
27,
-97,
-71
]
|
Per Ouriam:
Under the decision rendered at the present session of the court in the case of The State v. Bowles, ante, p. 821, the indictment in this case was properly signed. The matter of misjoinder was not raised by the motion to quash, but since it is argued by both parties, and might be raised again, it is proper to say that the indictment was sufficient in this respect. (The State v. Meade, 56 Kan. 690, 44 Pac. 619; The State v. Schweiter, 27 id. 499; The State v. Hodges, 45 id. 389, 26 Pac. 676; The State v. Bussey, 58 id. 679, 687, 50 Pac. 891; The State v. Stevens, 56 id. 720, 44 Pac. 992.)
The judgment of the district court quashing the indictment is reversed, and the cause remanded. | [
-75,
-3,
-36,
93,
10,
-32,
35,
-66,
-31,
-79,
39,
115,
-17,
15,
20,
121,
-85,
77,
80,
123,
-57,
-73,
63,
73,
118,
-45,
-39,
-41,
-77,
109,
-17,
-10,
76,
-80,
74,
-43,
70,
-50,
-59,
92,
-18,
13,
40,
-4,
-30,
-126,
52,
43,
82,
11,
113,
-50,
-13,
42,
30,
67,
41,
44,
91,
-65,
66,
-80,
-98,
5,
-33,
4,
-77,
-90,
-100,
-58,
-40,
46,
-108,
57,
9,
120,
123,
-106,
66,
84,
65,
25,
-120,
-30,
98,
35,
-79,
-84,
-84,
-104,
38,
126,
-115,
-89,
-111,
24,
105,
-119,
-105,
-67,
54,
50,
14,
110,
-17,
-123,
59,
108,
2,
-50,
-76,
-77,
-34,
124,
18,
115,
-21,
-123,
16,
100,
-51,
-73,
92,
67,
18,
-37,
-122,
-74
]
|
By the Court,
Brewer, J.:
This is a criminal case brought on appeal by the State. The notice required tvas served upon the clerk,, but no notice of appeal was served on the defendants. The counsel of record of defendants in the district court accepted service of notice for them, but this is not sufficient. This; point was decided in the case of The State v. Brandon, 6 Kas., 243, decided by this court in 1870. The defendants have made no appearance here personally or by counsel. No appeal has therefore in fact been taken, and the supposed appeal must be dismissed.
All the Justices concurring. | [
-80,
-22,
-100,
-98,
42,
98,
-93,
-68,
73,
-29,
37,
83,
-83,
83,
17,
123,
-17,
45,
117,
123,
-51,
-74,
119,
75,
-78,
-5,
91,
-43,
-75,
76,
-26,
-76,
76,
-96,
10,
85,
70,
-56,
-91,
-44,
-114,
5,
41,
93,
81,
9,
48,
43,
86,
7,
49,
94,
-21,
127,
24,
66,
8,
41,
-39,
61,
-40,
-15,
-120,
29,
-33,
6,
-78,
52,
-100,
-126,
-40,
62,
-100,
-79,
1,
-24,
114,
-90,
-122,
53,
107,
-71,
-120,
98,
98,
3,
-75,
-29,
-116,
-119,
-90,
126,
-99,
-89,
-40,
48,
75,
-119,
-74,
-97,
116,
52,
-89,
126,
110,
-59,
20,
108,
-125,
-54,
-28,
-77,
-113,
127,
-78,
107,
-17,
38,
48,
113,
-59,
-34,
88,
-58,
48,
95,
-122,
-74
]
|
The opinion of the court Avas delivered by
Valentine, J.:
Only tAVO questions are presented for con-, sideration in this case. First, can a judgment-debtor be held as garnishee of the judgment-creditor in favor of a creditor of the judgment-creditor, Ashere the two actions are in the same court? We must answer this question in the affirmative. For authorities upon this p>oint* see Drake on Attachments,. §§ 622 to 627, and cases there cited. It is possible there may be some debts, or rather credits, so intimately connected A\dtb other matters that to attempt to subject them to garnishment piroceedings Avould require the exercise of powers not possessed by the court. Or it is possible that other insuperable difficulties might arise, so as to preclude the possibility of subjecting-such credits to garnishment proceedings; and in all such cases, such credits must of course be exempt from such pro ■ceedings. But our statutes do not in terms exempt any credit ■of any kind whatever. Civil code, §§ 193, 206, 215, 218, '219. We would therefore infer that it is only where insuperable difficulties arise that any credit can be considered as ■exempt from garnishment proceedings; and as no insuperable ■difficulty arises in this case we think the judgment was the ■subject of garnishment.
Second: The next question is whether injunction will lie in a case like this to restrain the collection of the judgment pending the'garnishment proceedings. We must also answer ■this question in the affirmative. In the present case, after the garnishment process was served on the judgment-debtor the judgment-creditor caused an- execution to be issued, and the ¡sheriff was about to seize and sell the property of the judgment-debtor to satisfy said judgment. This action was brought to restrain the collection of said judgment pending the garnishment proceedings; and we think'such an action will lie. Otherwise the judgment-debtor might, after the ¡sheriff had sold his property to satisfy said judgment, again have to pay the amount of the judgment to the creditor of the judgment-creditor. So far as we now see, injunction is .the only adequate remedy for such a case.
These are the only questions presented to us, and the only ■ones which we decide. They were presented by the plaintiff in error. The defendant in error has made no appearance in this court; so we suppose he considers these as the only questions in the case.
The order of the judge of - the court b.elowis reversed, and the cause remanded, with the order that a temporary injunction be allowed, and such further proceedings taken as may .be proper in the case.
All the Justices concurring. | [
-14,
120,
-104,
-4,
74,
96,
-86,
-120,
-63,
115,
-77,
-45,
-83,
74,
4,
107,
-12,
123,
100,
122,
79,
-10,
23,
105,
-14,
-13,
-48,
-35,
49,
111,
-26,
84,
12,
-96,
-22,
-43,
102,
-125,
-63,
86,
78,
-121,
-104,
101,
-15,
64,
48,
59,
82,
11,
-11,
-122,
-29,
47,
25,
107,
73,
40,
121,
45,
-16,
-40,
-65,
-123,
127,
20,
19,
101,
-36,
99,
-56,
46,
-128,
59,
1,
-24,
115,
-74,
-122,
116,
41,
-101,
41,
114,
34,
-128,
69,
-23,
-8,
-8,
46,
-4,
-97,
39,
-103,
88,
-117,
105,
-74,
-99,
110,
48,
-90,
-2,
-22,
-99,
95,
-20,
15,
-114,
22,
-109,
-97,
116,
-104,
-62,
-26,
-47,
48,
113,
-52,
-88,
92,
96,
17,
27,
-114,
-42
]
|
'The opinion of the court was delivered by
Brewer, J.:
Was the land in controversy subject to taxation, the one parcel for the year 1868, and the other for the year 1869 ? This is the only question presented by the record. The cases were tried in the district court upon an agreed statement of facts. The plaintiff derived title solely under the act of congress of July 1st 1862, and amendment •of July 2d 1864, granting aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean. The agreed statement showed that plaintiff was the owner and in possession at the time of bringing the suit, and that the tax proceedings were regular and conformed to the requirements of the statute. It further showed “that at the time said land was assessed as aforesaid the plaintiff company .had completed the construction of the section of forty miles •of their road.within which the land lies, to the approval of the president of the United States.” And in- the case against -Culp the agreed facts showed that “ said plaintiff at the time .said land was assessed for taxation as aforesaid had -not paid into the treasury of the United States the cost of surveying, .selecting and conveying the said lands, and that no .patent therefor had been issued by the government of the U. S. to the said plaintiff; that said plaintiff had caused said lands to be valued and appraised, but that said land had not been .selected and conveyed as provided in said act of congress, nor the sum of one dollar per quarter-section paid, as provided; that said plaintiff had done all acts necessary to be done by it to obtain a patent for said land except as herein before stated.” This quotation from the agreed statement presents Ml the facts.
Was the land taxable ? If this land was the property of the Railroad Company, it was taxable; if it was the property of government it was not taxable. Act of Admission, § 3, clause 6th; General Tax Law, eh. 107, § 1. That no patent had issued is immaterial. Lands may be taxable before patent issues: Carroll v. Safford, 3 How., 441; Witherspoon v. Duncan, 4 Wall., 210; Stockdale v. Webster County, 12 Iowa., 536. The patent is evidence of the legal title. Where the right to a patent exists, the government holds the legal title only in trust, and the land is subject to taxation. Had the Railroad Company the right to a patent? If not, what had it to do first, and how did that affect its interest in the land? Sec. 3, of the act of July 1st 1862, provides—
“That there be and is hereby granted to the said company for the purpose of aiding in the construction of said railroad and telegraph line, * * * every alternate section of public land, designated by odd numbers, to the amount of five (changed by the amendment of 1864 to ten) alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten (changed by same amendment to twenty) miles on each side of said road, not sold, reserved or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have , attached at the time the line of the road is definitely fixed; * * * and all such lands so granted by this section which shall not be sold or disposed of by said company within three years after the entire road shall have been completed shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.
“Sec. 4. That whenever said company shall have completed forty consecutive miles * * * the president of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate-of said commissioners to that effect patents shall issue conveying the right and title to said lands. to said company, on each side of the road, as far as the same is completed, to the amount aforesaid, and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners.”
'The agreed statement shows that all the ju’erequisites to-the issue of a patent provided in this section have been performed, and if this were the only section bearing on the question the right to a patent would be clear. As against this right it is objected in the Culp case, first, that the company has not yet paid the one dollar per quarter-section required by the act of July 2d 1864. This is a general act applicable to all grants except those for agricultural colleges,, and requires the payment to the register and receiver of a fee of one dollar per quarter-section for each final location. We do not look upon this as attaching a new condition to the grant, a prerequisite to the vesting of title; but only as providing for payment for the evidence of such title. The title passes by the grant and the performance of the conditions named in the grant. To secure the evidence of suck transfer of title a fee must be paid to the officers who do the work, or a part of it, of preparing such evidence. ’ It is like the fee-paid to the conveyancer for drafting a deed, or to the notary for taking the acknowledgment, or to the register for recording the deed, none of which are paid for the title but only to-obtain and perpetuate the evidence of such title. All that the government receives for the land is the construction of the road. This done, its interest in the land ceases. It is no longer its property. The legal title it holds only in trust for the company, and that title it is ready to transfer upon payment of the expenses of making such transfer to the officers-who do the work. Again it is objected that the “cost of surveying, selecting and conveying tlie said land ” had not been paid into the treasury of the United States. This requirement is found in the 21st section of the act of July 2d 1864, which provides “that before any land granted by this act shall be conveyed -x- * * there shall first be paid into the treasury of the United States the cost of surveying, selecting and conveying the same by the said company or party in interest.” Substantially the same remarks are applicable here as upon the last point. By the very language of the section this payment is made, not a condition of the grant, but of the execution of the conveyance. The land granted shall not be conveyed. The right of the company to the land is secured by a performance of the conditions of the grant. The right to a patent or other proper conveyance only by the performance of certain additional requirements. The government after making the grant in effect says, Now if you wish the lines run, and the boundaries of the land granted determined, you must pay the expenses. It demands nothing more for the land, but declines to pay the expenses of making the boundaries and executing the conveyances. Again it is objected that the land had not been selected and conveyed, though it is admitted the plaintiff had valued and appraised it. The term “selection” is not an appropriate one. That carries the idea that the company was authorized to choose from a large body of land a certain number of acres; that the land to be conveyed depencfed on the choice of the company, and that until such choice no one could ascertain which sections would pass to the company and which remain with the government. We do not so understand the act. The location of the line of the road determined what lands were included in the grant as plainly as though named ’ by section, township and range. Every alternate section designated by odd numbers to the amount of ten alternate sections on each side of said railroad, and within the limits of twenty miles, except such as at the time of the location of said line of road the government had sold or guarantied to other, parties. All that was to be done embraced under the term “selection,” was to ascertain what lands within the limits described yet remained within the absolute control of the government. The grant is equivalent to a conveyance by an individual of all the land in a certain tract which he had not previously sold. Would not the title pass instantly upon such conveyance? Is there any selection to be made prior to the vesting of title in the grantee? The grantee may not know until after examination of the records what portion of the tract he takes under his conveyance, but his examination and ascertainment do not help to pass the title. The cases are parallel Again it is objected that “the title which the company is entitled to acquire, under the grant, is not an absolute and indefeasible estate.” The acts of congress containing this grant provide that all such lands remaining unsold, or undisposed of, by the said companies, three years after the entire road is completed, to aid in the construction of which the grants were made, shall be subject to settlement and pre-emption like other public lands at $1.25 per acre, “the money to be paid to said companies.” Counsel very elaborately and ingeniously discuss the difficulties which they suppose may arise in case the company shordd fail to sell within three years between the future pre-emptor and the holder of a tax-title. But what does the company’s deed eonvey unless it has the title? How can it sell that which it does not own? We do not understand that upon a failure by the company to sell within the three years the lands revert to £hc government, but simply that after such time the government will have the right to sell it at the ordinary prices of government land, paying the proceeds over to the company. The government receives nothing upon a sale made by it. It only acts as agent. The company is the principal and receives the money. The opinions of the Commissioner of the General Land Office and the Assistant Attorney General of the United States presented as arguments in this case are entirely imipplicable here, as they are based upon facts which by the agreed statement are excluded from our consideration.
In the case of the Railroad Company against Prescott the record presents the same questions as the case of the same plaintiff against Culp, except that it appears from the agreed statement that the cost of surveying, selecting and conveying the land in controversy had been paid at the time the tax proceedings were commenced. This therefore presents a stronger case for affirmance.
The judgment in each case will be affirmed.
All the Justices concurring. | [
-12,
106,
-4,
-2,
-21,
64,
42,
-112,
105,
-95,
-92,
87,
-83,
11,
0,
53,
-30,
-99,
113,
122,
70,
-89,
19,
3,
-42,
-77,
-39,
-33,
-67,
76,
109,
68,
77,
48,
74,
-11,
68,
-62,
-59,
28,
-50,
-116,
-87,
-52,
-47,
96,
52,
107,
82,
75,
113,
-114,
-13,
40,
24,
-61,
73,
47,
-53,
-67,
-127,
-72,
-118,
93,
111,
2,
49,
116,
-104,
67,
72,
8,
-112,
49,
7,
-116,
123,
-90,
6,
-42,
65,
-71,
40,
-26,
103,
33,
61,
-17,
106,
-120,
46,
-33,
15,
-89,
18,
88,
74,
75,
-76,
29,
60,
66,
-57,
126,
-18,
69,
-99,
124,
7,
-81,
-106,
-96,
7,
44,
-109,
67,
-37,
-125,
-80,
97,
-57,
2,
92,
71,
58,
-101,
-113,
-8
]
|
The opinion of the court was delivered by
Brewer, J.:
This was an action for damages done by hogs breaking through a fence into an inclosure and destroying a crop. A general verdict was returned for defendant in error, plaintiff below. (Special facts were also found. The general verdict must stand unless the special facts are inconsistent therewith. The hogs were suffered to run at large in a township in which the hog-law had not been -by vote of the people suspended. The fact found which is supposed to be inconsistent with the general verdict is, that the fence around the inclosurc vas insufficient, and not a legal fence. Wc do not consider this' inconsistent, and therefore the verdict must stand. Whatever may be the rule in. the case of damage done by neat cattle or sheep, or by hogs in a township Avhere the hog-law has been suspended, wc think that the insufficiency o'f the fence is no defense to this claim for damages. The common law required every man to take care of his own stock, and suffered none to run at large, except at the peril of the owner. Our statute re-enacts the common law as to hogs, though giving to each township the right by a vote to suspend this law. Ch. 105, §7, Gen. Stat., 1011. The fence law seems impliedly to authorize cattle to roam at large, but this implication cannot outweigh the express prohibition of another statute. The case of Larkin v. Taylor, 5 Kas., 433, is not in conflict with this, for there no question was raised as to the liog-law, and the damages were done by horses and neat cattle. The case of Rollins v. The U. P. Rly. Co., 5 Kas., 167, recognizes this distinction. This also disposes of the question raised by counsel as to the failure to apply to the fence viewers for an assessment of damages.
The judgment will be affirmed.
All the Justices concurring. | [
-79,
124,
-35,
-20,
8,
96,
40,
-40,
67,
-119,
51,
83,
-19,
-45,
5,
97,
-25,
-19,
81,
58,
84,
-73,
-73,
-62,
-74,
-13,
-109,
-35,
-71,
107,
-17,
119,
76,
48,
10,
-43,
-26,
104,
-63,
-44,
-114,
6,
-102,
-55,
80,
-48,
56,
121,
84,
79,
53,
-97,
-29,
46,
25,
-57,
-87,
44,
107,
45,
81,
-7,
58,
69,
95,
2,
-77,
102,
-118,
37,
-38,
46,
-112,
49,
1,
-24,
115,
-92,
-108,
84,
13,
-103,
12,
98,
103,
17,
124,
-51,
96,
-56,
38,
94,
-113,
-90,
16,
24,
-125,
2,
-74,
-99,
50,
82,
38,
126,
-25,
77,
-97,
124,
5,
-122,
-108,
-73,
-57,
44,
-102,
69,
-21,
-89,
51,
113,
-49,
-22,
89,
69,
80,
-101,
-114,
-34
]
|
The opinion of the court was delivered by'
Kingman, C. J.:
The defendant in error, claiming to be the owner of an undivided one-half of a quarter-section of land in- Marshall county, brought his action to settle the question as to the title between himself and plaintiff in error. The pleadings admit the ownership of one-half of the tract to have been in Mrs. L. A. Woodley, widow of A. D. Woodley deceased. The defendant in error has her title by virtue of a deed dated Oct. 7, 1869. The plaintiff in error claims title by virtue of a sale made to him by Magill, as the agent of Mrs. Woodley, on the 5th of November 1868. The whole controversy turned upon whether Magill was such agent, and was authorized to make a sale of Mrs. Woodley’s interest in the land. On this point the evidence is conflicting; and as to numbers, the witnesses are about equally balanced. The cause was tried by the court, and special findings were made, among which is the following: “3d. That said Magill had not authority to sell said lands at the time said contract of sale was made.” Under such circumstances this court will not disturb the finding of fact'by the court below, and a review of the evidence to show where the preponderance lies would be a fruitless labor, unless the preponderance was decided.
One of the witnesses whose deposition was taken in Virginia answered one of the questions from a memorandum written by the witness some time before the J deposition was taken. No question was made on the admissibility of this evidence in the court below, and therefore there is no question for this court to .decide. Witnesses testified as to the contents of letters. Undoubtedly this was not proper testimony, but there was no objection made to its admission, and therefore no cause of complaint. An objection was made at the time of the taking of the depositions, but was not brought to the attention of the court, and is therefore deemed to have been waived.
Again, it is said that plaintiff in error was entitled to “MagilFs tax title, whatever it was.” But not a word appears in the evidence showing that he had any such title.
We have thus briefly noticed the errors to which our attention has been called, and not finding them well founded the judgment is affirmed.
All the Justices concurring. | [
55,
-20,
-3,
29,
56,
-32,
104,
-118,
65,
19,
-83,
115,
-87,
-54,
24,
51,
-26,
59,
-27,
107,
-58,
-73,
19,
-29,
82,
-45,
-45,
-35,
53,
-56,
-10,
-42,
76,
44,
-54,
93,
70,
-54,
-59,
82,
-18,
-113,
-87,
-20,
-39,
-16,
52,
61,
22,
79,
117,
-66,
-14,
44,
57,
67,
105,
46,
-53,
49,
64,
-72,
-113,
-115,
111,
10,
49,
102,
-102,
5,
72,
42,
-112,
53,
1,
-4,
123,
-74,
-110,
-12,
41,
-103,
8,
118,
110,
33,
-51,
-17,
-24,
-100,
46,
126,
-115,
-90,
-122,
72,
-21,
73,
-73,
-99,
124,
80,
7,
-10,
-18,
84,
28,
108,
37,
-117,
-106,
-79,
-115,
56,
-104,
27,
-37,
7,
52,
113,
-51,
-85,
93,
68,
57,
-101,
-114,
-44
]
|
The opinion of the court was delivered by
Valentine, J.:
These two cases involve precisely the •same questions, and will therefore be considered together. For convenience however we shall hereafter speak of the two •cases as though they were only one, as what we say of one is •equally applicable to both.
• This action was brought to set aside a tax deed. A demurrer was filed to the petition-. The court sustained the demurrer. The plaintiff then brought the case to this.court. The petition is very long, complicated in its statements of facts, inartistically drawn, difficult to be understood, and it is not strange that the court below sustained the demurrer thereto. The tax deed is alleged to be void for fifteen different reasons, numbered consecutively from one to fifteen in the petition. Many of these reasons include statements of facts which are entirely immaterial, as, for instance, that “ the tax deed is void because the county clerk did not charge the county treasurer with the amount of all the taxes.” Many of these reasons include simply conclusions from facts,- and not the facts themselves, as, for instance, it is alleged that the tax deed is void because “The tax deed marked exhibit ‘A’ is insufficient, informal, and not in accordance with law.” This is all of the fifth reason as it is given in the petition. And each of many of these reasons includes many statements of facts, and conclusions from facts, some material,' and others immaterial, but all so connected by copulative conjunctions that the allegations of the petition, with reference to them, are, that the deed is void because of all these facts and conclusions from facts in the aggregate, and' not because of any one or more of them taken separately or singly. Each of these several reasons just mentioned alleges substantially that the assessor, (or the county clerk, or the-treasurer, as the case might be,) did not do, all of several' separate and distinct things, required of him by law, mentioning said things in detail, some of which things were material and some of them not material. Such an allegation is defective and worthless. If the assessor, (or the comity clerk, or the treasurer, as the case might be,) did not do any one of said several separate and distinct things, of course he did not do-all of them, and that one which he omitted to do may have-been a very immaterial thing. Hence, the allegation could be strictly and literally true, and yet the assessor, or the county clerk, or the treasurer, respectively, might have performed everything that was material or necessary for him to perform in order to make a good tax deed. Illustrations of this mode of pleading may be found in nearly all the reasons given. ' We think however the court below erred in sustaining said - demurrer. We shall take the fourth reason given, for the purpose of showing it, because said reason is the shortest, and because it is as material, and as well pleaded as any of the others, and more so than the most of the others. It reads as follows: “4th.-Said lots were not sold for taxes-at the time and place required by law.” Now if the lots were not sold at the time or place required by law, of course the tax deed founded on such sale must necessarily be void. Of course, it must be admitted that this fact is not very well pleaded, but we think it is sufficiently pleaded to be good on general demurrer. If the defendant was not satisfied with this statement of facts he might have required a more specific and definite statement thereof, by a motion to have the petition in this respect made more definite and certain. Of course, the defendant had*a right'to know, from a specific allegation in the petition, whether the plaintiff claimed that the treasurer did not sell said property at the county-seat, or whether he claimed that the place where the treasurer did sell the property was not the county-seat-, (a mere county-seat question,) or whether he claimed that the treasurer did not sell at his office, or at the place where he advertised to sell, etc. The defendant also had a right to know from a specific allegation in the petition whether plaintiff' claimed that the treasurer' sold said property prior to the first Tuesday 'of May, of after the adjournment of the tax sale, at the time to be held, or at some other time not designated by law. In fact, the petition should have stated specifically (if insisted on in the proper-way by the defendant,) the time when, and the place where,, said property was sold, (and not merely the time when and the place where it was not sold,) and all the facts connected with the sale, so that a precise and specific issue could have-been made up by the pleadings. Such is the better mode of pleading; and such is the mode that must prevail when properly insisted on by the adverse party. When true and specific issues are made up by the pleadings, the parties may know in advance, and before a trial, just what they will have to prove,, and what they wilUhave to disprove. -But a party, in order to have the facts stated specifically, must raise the question in a proper way. He must do it by motion, and not by a general demurrer. If a petition states a cause of action at all; the petition must be held good when demurred to on the= ground “that it does not state facts sufficient to constitute a. cause of action,” however general its statement of the facts may be. A party is not bound, as a rule, to divide up- a general fact into its smaller and constituent facts, and state' only the smaller and constituent facts instead of the general facts, unless he is ordered to do so by the court. And then the extent of the divisions, or the minuteness of the details, in stating the facts, is governed very much by the sound judicial discretion of the court trying the cause. But a court can never entirely ignore a fact, or the statement thereof, because it is a broad and comprehensive fact including many smaller and minor facts.
It will be proper for us to here state that no question of the statute of limitations is involved in this case. The tax deed in controversy was not executed or recorded two years prior to the commencement of this action.
The judgments in these two cases, and the orders of the-court b.elow in sustaining the demurrers to the petitions, are= reversed, and the causes remanded for further proceedings in accordance with the foregoing opinion, and as may be proper* in each case respectively.
All the Justices concurring. | [
-14,
-4,
-47,
-99,
42,
-64,
42,
-116,
72,
-95,
39,
115,
-17,
-62,
4,
121,
-10,
127,
85,
106,
-41,
-77,
35,
40,
-10,
-77,
-39,
84,
-11,
79,
-10,
118,
76,
49,
-62,
-43,
102,
11,
-59,
84,
70,
-125,
-120,
77,
-39,
64,
52,
89,
106,
73,
117,
-58,
-13,
40,
28,
-61,
73,
44,
75,
-73,
-112,
-72,
-82,
5,
91,
15,
-79,
39,
-100,
67,
-24,
10,
-112,
57,
-128,
-24,
121,
-74,
-122,
116,
13,
-71,
41,
-26,
99,
0,
69,
-1,
-4,
-104,
46,
114,
29,
-90,
-110,
88,
43,
-115,
-106,
-99,
124,
80,
111,
126,
-26,
5,
29,
108,
14,
-114,
-46,
-109,
-113,
116,
-118,
67,
-2,
-85,
48,
113,
-57,
-64,
92,
-27,
26,
59,
-49,
-8
]
|
The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from the defendant’s failure to furnish stock cars for the timely shipping of two carloads of hogs from Bellaire, Kan., to Kansas City, Mo. The verdict and judgment were for the plaintiff, and the defendant appeals.
The form of the action was one for breach of a contract made on Tuesday, January 30, 1917, whereby the defendant agreed to furnish the cars for use on the morning of Sunday, February 4, 1917. The evidence was that' the plaintiff lived nine miles from Bellaire, and kept his hogs in good, tight, covered pens. On Thursday he hauled in bedding for the open stockyard pens. On Saturday he brought in his hogs for shipment on the train leaving about daylight the next morning. On Sunday morning the cars did not arrive. The defendant’s agent said the cars were over at Smith Center, a neighboring town, and he would try to have them at Bellaire the next-morning. The cars did not come until Wednesday, February 7, when they were loaded and forwarded to their destination. It was winter weather, the thermometer standing at one degree below, two degrees above, and zero, afi Smith Center, February 3, 4, and 5. The hogs piled up in the stockyard pens, some were overlaid, others would come steaming from the piles into the cold air, and as a result, by Wednesday morning the plaintiff had lost seventeen hogs.
The defendant denied that it agreed to furnish cars on any particular day. The request for cars was made to a helper about the defendant’s station at Bellaire, and not to the agent in charge; there was testimony that the agent had no authority to make a contract to furnish cars on any particular day; and the bill of lading which was issued to the plaintiff after the cars arrived and were loaded contained a provision that no agent had authority to agree to furnish cars on any particular day. The subject is not important. A request for cars for use on February 4 was made, the defendant recognized and acted on the request, and there is no contention that the request was not reasonable.
The transportation was confessedly interstate, and governed by federal law. Under the commerce act, “transportation” includes the entire body of services rendered in connection with the receipt, handling, and delivery of property transported, and includes the furnishing of cars:. •
“The term ‘transportation’ shall include cars and other vehicled and all instrumentalities and facilities of shipment or carriage, . . . arid all services in connection with the receipt, delivery, . . . and handling of property transported; and it shall be the d.uty of every carrier subject to the provisions of this act to provide and furnish such transportation upon reasonable request therefor.” (Commerce Act, § 1, 24 U. S. Stat. at Large, 379, as amended by 34 U. S. Stat. at Large, 584, 36 U. S. Stat. at Large, 544 [4 Fed. Stat. Ann., 2d ed., 351].)
Section 8 of the act provides that in case any carrier shall omit to do any act required to be done, it shall be liable for the full amount of damages sustained. Section 20 provides that any carrier shall be liable to the holder of *a bill of lading for any loss, damage or injury to the property which it causes. Section 22 préserves other rights and remedies not inconsistent with the act, and-the form of the action for failure to furnish cars is not material. In the case of Penna. R. R. v. Puritan Coal Co., 237 U. S. 121, the court said:
“It makes little difference what name is given the cause of action sued on in the present case; or whether it is treated as a suit for a breach of the carrier’s common-law duty to furnish cars, or an action for damages for the carrier’s unjust discrimination in allotting cars. ... In either case the liability is the same. . . . The damages grew solely out of the fact that the Puritan Company failed to receive the number of cars to which it was entitled.” (p. 132.)
In this case the facts of the transaction relating to' the application for cars were stated, and it makes no difference that the plaintiff characterized his grievance as one for breach of contract. The essential nature of the defendant’s liability, if any, was the same, and the court properly instructed the jury that the plaintiff must recover, if at all, because of the' failure of the defendant to furnish cars within a reasonable time.
The defendant sought to excuse the delay in furnishing cars on the ground of car shortage resulting from sudden and extraordinary demands. In the opinion in the Puritan Coal Company case just cited may be found some observations on this subject which are quite pertinent:
“The carrier is not liable if its failure to furnish cars was the result of sudden and great demands which it had no reason to apprehend would be made and which it could not reasonably have been expected to meet in full. . . . The law exacts only what is reasonable from such carriers — but, at the same time, requires that they should be equally reasonable in the treatment of their patrons. In case of" car shortage occasioned by unexpected demands, they are bound to treat shippers fairly, if not identically. In determining how the inadequate supply shall be distributed, it might be necessary to consider the character of the freight tendered — whether perishable or staple and whether a necessity of life needed in crowded citities and the like.” (p. 133.)
In accordance with this doctrine, the court instructed the jury that if the defendant possessed sufficient cars to meet all ordinary demands, but that there was an undue shortage caused by unusual press of business or extraordinary congestion of traffic, which could not reasonably be anticipated or provided for, and the defendant could not meet the unprecedented demand, but did distribute cars fairly and without discrimination, and did furnish the plaintiff’s cars as soon as possible under the circumstances, the plaintiff could, not recover. The question thus presented was a question of fact, which the verdict necessarily determined against the defendant. The defendant contends the verdict was contrary to the evidence.
The freight-car distributor for the Rock Island system, whose office was at Chicago, testified that in the year 1915 the car supply in general afforded somewhat of a surplus, but that starting with the first of the year 1916 shortages “began to increase,” due to increase of traffic, which he said “exists today” (December, 1917). The witness said the Rock Island system had enough stock cars for all ordinary demands, and that the condition from 1916 to the time of the trial had been extraordinary and quite unprecedented- in the history of railroading; but when called on to explain the conditions which produced the shortage, the witness depended largely on factors which were nonexistent in the year 1916 and in January and February, 1917. He said:
“The large volume of business has largely been created by war necessity, the moving of troops and of goods and materials to maintain those troops, all these preparations and ammunitions, and in addition to that increase of business the increase of our individual shippers all over the country.”
Testifying as to how the stock-car supply had been affected “since 1917,” he said the demand for box 'cars had been so great that in order to comply with government regulations they had been obliged to paper the inside of stock cars, and so diminish the supply for livestock. Testifying further, he said:
“Briefly, there has been a steady increase, due to the demands on transportation lines in general, not only railways, but all other common carriers, have had a demand on them for the increase in business, due, as I previously stated, to the condition of maintaining our army and the government requirements.”
-We did not sever diplomatic relations with Germany until February 3; 1917, and the existence of a state of war was not proclaimed until April 6, 1917.
Accounting for the difficulty in obtaining new equipment, the witness said the steel situation was the principal factor, the steel foundries being under government control and their products being taken for other purposes, including the needs of the allied countries. The steel industry was not coordinated with government activities until after we entered the war. The witness said the cost of an ordinary box car two years before (December, 1915) was about $1,200, and the-price at the time of the trial (December, 1917) was about $2,700. December, 1915, was very near the time he claimed car shortage commenced to appear on his road.
Records of the system car distributor and of the division car distributor were produced, showing the daily demand and the daily available supply of cars on the Bellaire division from January 25 to February 7, 1917. Those records did not agree, for reasons which were stated, but they disclosed a car short age on the Bellaire division. It was the business of the division distributor to apportion cars among different stations on his division. He compiled his data from the reports of station agents, and sent his orders for cars to the Chicago office. The system distributor distrbuted cars among the various divisions. The record of the division distributor, as stated to the jury, was as follows: '
“January 30th, ninety-five wanted, fifty-five on hand. Three ordered Bellaire, three on eig-hty-three to fill order — Numb.er eighty-three is our local train. January 31st, fifty-nine wanted, fifty-one on hand. None ordered Bellaire. February 1st, fifty-nine ordered, fifty-eight on hand. Two ordered, none on hand Bellaire. February 2nd, eighty-one ordered, sixty on hand. Two ordered Bellaire for 4th. None on hand.”
Fom the fact that special orders for particular uses were noted on the record — “three on eighty-three,” “two ordered Bellaire for 4th” — it would appear that the plaintiff’s request for cars did not receive attention until the day-after the plaintiff had bedded the stockyard pens for the reception of his hogs.
The records just referred to disclosed a condition. They did not explain the condition, and eliminating government need, government priorities, and government regulation and control following our entrance into the war, no sudden great demand for cars which the defendant had no reason to apprehend, and which it could not reasonably be expected to meet, was fairly disclosed. There was a “steady increase” in the volume of traffic, beginning with the first of the year 1916, which culminated in an acute shortage of cars in January, 1917. The cause of this increase was well known to all men. It lay in the great expansion of trade and industry generally, as the result of demands made on the United States arising out of what was still essentially a European war. By the beginning of 1916, a full year before the plaintiff made his request for transportation, every barometer used in gauging business activity was steadily rising, and the effect on railroad transportation was already patent. As a matter of fact, according to statistics compiled by the Commercial and Financial Chronicle (not embraced in the record), this expansion was registered in railroad revenues as early as September or October, 1915, and there continued to be a net surplus of idle cars until September 1, 1916, when the first shortage for that year; amounting to approximately 20,000 cars, appeared. However this may be, while the expansion was quite rapid after it once gained headway, and while it assumed unprecedented proportions before the end of 1917, it had ceased to be sudden or unexpected by the beginning of 1916. Every day’s experience instructed the defendant that it would become less and less capable of fulfilling the demands made upon it, and the abstract is barren of any testimony that any effort was made to meet the needs of the growing number of shippers and the swelling volume of traffic, beyond shifting from division to division an increasingly inadequate supply of cars.
Of course this court does not hold that the defendant was not excuse/1 from complying with the plaintiff’s request. It does hold that, from the evidence produced at the trial, the jury were warranted in finding that the defendant was not excused, both' on the ground just discussed and on the ground of negligence in handling the plaintiff’s request.
After the hogs which were still alive were loaded in the cars finally furnished, the defendant presented to the plaintiff for signature a bill of lading or contract for the shipment, which he signed. The instrument provided that the liability of the defendant should not attach until the^ livestock had been loaded into the cars by the plaintiff and a written shipping contract had been issued. The court refused to instruct the jury, at the defendant’s request, that this provision of the contract governed, and that the plaintiff released and waived ¿ny claim for damages arising before the contract was signed.
The defendant argues that under the definition of transportation contained in the commerce act, transportation began with the plaintiff’s request for cars; that section 20 of the act required the defendant to issue a receipt or "bill of lading for the shipment; that under the act a bill of lading is an essential incident to transportation; and that being in form and in essence a contract, its terms must necessarily be binding. The general soundness of this argument may be conceded, but it does not cover this case. The contract which the plaintiff signed specified the subject to which it related. That subject was the transportation of 131 hogs of the value of $20 each, at a rate graduated and proportioned according to the declared value; from the station of Bellaire to Kansas City, Mo., consigned to Clay, Robinson & Co. Those were live hogs which went forward to their destination, and not dead ones which the plaintiff hauled back to his farm. No receipt or bill of lading was issued for the 17 dead ones.
Besides what has just been said, the shipper was entitled to transportation for the hogs which were shipped, at the tariff rates, and it would be a manifest discrimination against him, not based on cost of service, to cause him to surrender, in addition to proper transportation charges, the amount of his damages, fully accrued on account of a breach of duty expressly enjoined by the commerce act. In this instance the shipper would be charged $340 in addition to lawful freight charges for the transportation of 131 head of hogs, which would constitute extortionate discrimination, repugnant alike to the letter and spirit of the law. To say that the contract is in form and substance the one tendered to all shippers is to say that transportation charges are indefinite and uncertain, depending on what damages a shipper may have sustained before signing the contract, which is repugnant to the letter and spirit of the law. In this instance the only effect of the provision was to relieve the carrier from the consequences of its negligent delay in furnishing transportation, up to the time the cars were loaded. In the case of Boston & Maine Railroad v. Piper, 246 U. S. 439, involving a stipulation in a bill of lading limiting to certain items liability for delay occasioned by the carrier’s negligence, the court said:
“This stipulation contravenes the principle that the carrier may not exonerate itself from losses negligently caused by it, and is not within the principle of limiting liability tov an agreed valuation which has been made the basis of a reduced freight rate. Such stipulations as are here involved are not legal limitations upon the amount of recovery, but are in effect attempts to limit carrier’s liability for negligence by a contract which leaves practically no recovery for damages resulting from such negligence. While this provision was in the bill of lading, the form of which was filed with the railroad company’s tariffs with the Interstate Commerce Commission, it gains nothing from that fact. The legal conditions and limitations in the carrier’s bill of lading duly filed with-the Commission are binding until changed by that body (Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639, 654) ; but not so of conditions and limitations which are, as is this one, illegal, and consequently void.” ip. 445.)
' The result is that the stipulation under consideration did not cover the liability on which the action was predicated; but if it should be construed to cover such liability, the stipulation was. void.
The defendant argues that the delay in furnishing cars was not the proximate cause of the plaintiff’s loss. This was a hotly contested question at the trial. There are pages and pages of testimony relating to it, and it is sufficient to say there was ample evidence to sustain the verdict.
There is nothing more in the case of sufficient importance to require discussion, and the judgment of the district court is. affirmed. | [
-16,
104,
-4,
13,
10,
104,
10,
-102,
71,
-127,
52,
87,
-51,
-57,
1,
105,
119,
61,
116,
57,
100,
-77,
7,
-46,
19,
-45,
-77,
-59,
-67,
75,
109,
78,
79,
0,
10,
-107,
-26,
-62,
64,
28,
-114,
36,
-72,
-24,
93,
16,
60,
105,
22,
79,
33,
15,
-29,
46,
26,
-61,
41,
40,
107,
45,
-48,
-15,
-14,
-57,
125,
22,
-126,
100,
-110,
5,
88,
47,
-112,
49,
73,
-24,
114,
-92,
-108,
116,
45,
-103,
8,
38,
103,
1,
29,
-63,
44,
-88,
38,
-5,
-113,
-90,
48,
25,
2,
35,
-66,
-99,
123,
18,
7,
126,
-1,
85,
-99,
96,
3,
-114,
-76,
-77,
111,
32,
-98,
31,
-21,
-91,
51,
97,
-51,
-10,
89,
69,
90,
-101,
-114,
-114
]
|
The opinion of the court was delivered by
Burch, J.:
The plaintiff commenced this action in 1904 to recover the amount of a guardian’s bond that had been given in 1895 to secure the faithful, discharge of duty by Henry Morgan, who had, in 1887, been appointed guardian of the property of the plaintiff, then a minor. The action was tried by the court without a jury, and judgment was rendered in favor of the defendant. The plaintiff appeals. He charges that the court committed error in the admission of evidence, and argues that judgment should have been rendered for the plaintiff instead of for the defendant.
The annual and other reports of the guardian, together with the orders of the probate court thereon, were admitted in evidence. The plaintiff contends that this was error. Sec tion 5062 of the General Statutes of 1915 requires guardians to “account on oath annually, or oftener if required by the court,” and section 3055 gives to the probate courts jurisdiction- “to appoint and remove guardians for minors . . . and make all necessary orders relating to their estates, to direct and control their official acts, 'and to settle their accounts.” The accounts and the orders approving them are evidence of what was done, and -they are competent evidence of the truth of the statements contained in them. They were properly admitted in evidence, but they did not conclude the plaintiff; he had the right to.disprove the statements, but unless disproved, the district court was compelled to accept them as true.
Complaint is made of the admission of evidence to show that the plaintiff had sold, for large sums, real property received by him as a part of his estate. Evidence of the amounts realized by the plaintiff from the sale of property turned over to him by his guardian was immaterial, but judgments are' not necessarily reversed because of the admission of immaterial evidence, where the trial is by the court without a jury; it must also appear that the evidence was prejudicial. The presumption is that the immaterial evidence was disregarded.
In a “Memorandum of Decision” the trial court named several amounts which the plaintiff had received for real property sold by him after reaching his majority. That real property had been received by him -as a part of his estate. In that memorandum the court said:
“In the absence of any positive evidence the question arises whether the court should presume that Morgan was guilty of any breach of trust or misappropriation of the money received during the period of his trusteeship. I am of the opinion that the court should come to no such conclusion in the absence of direct and convincing testimony that Morgan was guilty of intentional violation of his trust or of gross mismanagement. Fraud is never to be presumed.”
The memorandum does not show that the trial court, to reduce the liability of the defendant, charged the plaintiff with .the amounts that were received by him through the sale of the real property. It, therefore, does not appear that any prejudicial érror was committed in the admission of that-evidence.
The plaintiff complains of the judgment that was ren dered and contends that it should have been rendered in his favor. This contention is based on the argument that the bond given in 1895 covered previous defalcations of the guard-' ian, and is based on the further contention that the court found that such defalcations had been made; or, if no such finding was made, that the -evidence compelled such finding. The court did not make formal findings of fact, but did make the “Memorandum of Decision” already referred to. A part of what the court said about any breach of trust by the guardian has beeen quoted and need not be repeated. The court further said:
“Upon the whole it must he held that the plaintiff has failed to make out a cause of action and judgment must be for the defendant for costs.”
• If the memorandum is ignored, the plaintiff has no foundation for his argument, for the reason that a general finding was made in favor of the defendant. The burden was on the plaintiff to establish defalcations on the part of the guardian. On the evidence, the court said that no defalcations had been proved, and this court/, cannot say that the evidence compelled the trial court to find otherwise.
The judgment is affirmed.
Johnston, C. J., not sitting. | [
-13,
108,
-20,
-66,
26,
96,
42,
-6,
97,
-119,
-77,
83,
-87,
-62,
16,
35,
-14,
75,
117,
106,
-34,
-77,
19,
-125,
-46,
-14,
-71,
-43,
49,
124,
-28,
95,
77,
48,
-22,
-43,
-26,
-119,
-59,
82,
-50,
9,
56,
77,
-37,
96,
52,
53,
20,
79,
81,
-98,
-29,
46,
61,
-53,
105,
42,
-21,
-71,
-44,
-79,
-113,
5,
107,
21,
-111,
55,
-102,
71,
120,
46,
-124,
113,
1,
-88,
115,
-74,
6,
-12,
67,
-103,
40,
114,
98,
17,
77,
103,
-72,
-120,
39,
62,
15,
-89,
-110,
89,
-119,
105,
-74,
-67,
127,
16,
39,
-6,
-26,
-100,
88,
44,
7,
-113,
-42,
-79,
15,
124,
-104,
11,
-5,
-95,
52,
112,
-52,
98,
92,
35,
113,
-101,
-113,
-107
]
|
The opinion of the court was delivered by
Mason, J.:
The Booth Packing Company, of Baltimore, Md., accepted from the Alton Mercantile Company, of Enid, Okla., two written orders for goods, one dated April 4, 1916, for 350 cases of canned sweet potatoes, at 75 cents a dozen, and the other dated August 22, 1916, for 50 cases of canned spinach, at 95 cents a dozen. Each order contained these clauses: “Six months’ guarantee against leaks and swells from date of invoice. . . . Usual allowance. Terms: Cash, less 1% percent in ten days.” On November T3, 1916, the buyer wrote asking when the seller intended to ship the sweet potatoes. Three days later the seller sent an answer saying that it was ready to ship the goods in accordance with the contracts, but added:
“We will, however, only ship these goods for cash, but will allow you in addition to the discount of 1 Yz percent a further discount of % percent, which - we' trust will be satisfactory to you. Please let ús have specific shipping instructions and your check for the value of the above goods at your convenience, and promptly upon receipt of which we will let the goods go forward.”
The following correspondence then ensued.
November 20, buyer to seller:
“Answering yours of the 16th, we will want the sweet potatoes and spinach both labelled “The Alton Goods,” and cases properly stencilled. Please see that labels are not used on the ends of the cases. These two items, together with the Webster-Butterfield canned goods, will complete a car which we would like to have forwarded Central Savannah line, Frisco, and upon receipt of bill of lading, we will be glad to remit you less 1%. percent cash discount, which you have stated you will allow for immediate cash. You cannot expect us to forward the cash unless the bill of lading is in our hands. We are at a loss to understand your unusual request for remittances to be made before the goods are forwarded, but we are perfectly willing to avail ourselves of the additional cash discount, although it should be 2 percent. You may be aware that some canners are allowing 2 percent for immediate cash or the usual IV2 percent if remittance is made in ten days. We are very anxious for immediate shipment and trust that you will get the goods off to us at once. If you do not care to forward us the bill of lading, you might forward it to Griffith Brokerage Co., your agents, in Wichita, Kan., and we will send them our check, which they can forward to you, delivering us the bill of lading. Will you please explain your unusual request, as customary terms should certainly apply on this contract. Be sure and include all of the labels belonging to us in the car. Let us hear from you by wire, please, as to when you will make shipment.”
November 23, seller to buyer:
“Replying to your letter of the 20th, we are inclosing herewith an invoice for the sweet potatoes and spinach we have sold you, on which we have allowed you 1% percent cash discount. As soon as we receive your certified check for this amount we will let the car go forward.”
December 1, buyer to seller:
“We are sending check to the National Exchange Bank, Baltimore, for $600.51, to be given to you when you deliver them bill of lading covering shipment of the sweet potatoes and spinach. Please see that the cases are properly stencilled and that labels are not used on the ends of the cases and also include in the car the Webster-Butterfield canned goods and all labels and stencils that you have belonging to us. Please route Central Savannah line, care Frisco. You stated in your letter, November 23rd, that you would forward the goods on receipt of check, but we do not care to send it to you, as you might never ship them after receiving the check. We have just as much reason to doubt your honesty as you have to doubt ours, so we do not intend to put the check in your hands until the bill of lading is furnished. If you do not handle it in this way, this is our last offer and we will then file suit immediately for the fulfillment of your contract.”
December 4, seller to buyer:
“We are in receipt of your letter of the 1st. The National Exchange Bank advised us to-day that they have received your check for $600.51. It is perfectly agreeable to us to deliver to them the bill of lading covering your order of sweet potatoes and spinach, together with goods from Webster-Butterfield Co., but before delivering them this bill of lading it will be necessary for them to be able to deliver us a certified check for the above amount. If you will refer to our letters you will find that this is the request we made upon you, namely, to forward us certified check. Immediately we are notified by the National Exchange Bank that they have received your certified check for the above amount we shall be pleased to comply with your request.”
The buyer then sued the seller for breach of contract. The case was submitted upon the facts already stated, and upon admissions that “the terms of sale were thirty days net and ten days 1 Va percent off,” and that at the time of the alleged breach the market price of the sweet potatoes was $1 a dozen, and of the spinach $1.30 a dozen. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The written orders state the terms of sale to be “cash, less 1% percent in ten days,” which would seem to indicate that no extension of credit whatever — in the sense of the buyer parting with title before receiving payment — was contemplated, in which case the requirement that a certified check should be delivered before shipment would perhaps not have been outside of the substance of the original contract. But the admission that the terms of sale were thirty days net, with 1% percent off for cash in ten days, must doubtless be held to show that the words used in the order were by custom to be given that effect. A suggestion is made by the plaintiff that the matter is affected by the clause relating to the guaranty against leaks and swells, but we do not regard it as having any bearing on the controversy.
It has been held that where the vendor refuses to sell goods on credit in accordance with his contract, but offers to deliver them for cash at a reduced price, the reduction amounting to more than the interest for the time credit was promised, the buyer is bound to accept the offer, if he is able to do so, on the principle that he is required to take such action as he reasonably can to avoid damages or reduce their amount. (Lawrence v. Porter, 63 Fed. 62; see, also, as having a similar tendency, Deere et al. v. Lewis et al., 51 Ill. 254.) The federal decision cited proceeds upon the hypothesis that the situation was such that the buyer could accept the offer without consenting to a modification of the contract and thereby waiving his claim for compensation on account of any loss he sustained through the vendor’s violation of his agreement.
On the other hand it has been held, under similar conditions, that the buyer was not required to accept such an offer from the vendor, there having been no showing that he was able to make a cash payment, the court saying that there was no presumption to that effect. (The Louis Cook Manufacturing Co. v. Randall & Dickey, 62 Iowa, 244.) And a like ruling has been made irrespective of whether or nqt the buyer could have borrowed the money with which to make a cash payment. (Coppola v. Marden, Orth & Hastings Co., 282 Ill. 281, 118 N. E. 499, reversing the appellate court, as well as the trial court.) Closely related questions have been decided in the same way on the ground that a purchase from the maker of the contract would have resulted in a waiver of its breach (Campfield v. Sauer, 189 Fed. 576), or that it might have exposed the buyer to the charge of having abandoned the first agreement. (Havemeyer v. Cunningham, 35 Barb. 515, 522.)
We regard it as unnecessary to determine whether the decisions cited can be reconciled, or which of them in the event of a conflict should be regarded as the sounder, because we think the judgment under consideration may be affirmed upon the particular facts presented, without going counter to the prin ciple by which the result was controlled in any one of the cases referred to.
The contention seems very plausible that the plaintiff must be deemed to have consented to a modification of the original contract. When the.positive announcement was made that the defendant would not ship the goods except for cash, the plaintiff did not give notice of an election to stand upon the first agreement. On the contrary, it assumed that the goods would be sent, gave directions in that regard, proposed to exchange its check for the bill of lading, and claimed the benefit of the additional discount of one-quarter of one percent. If this did not constitute an acquiescence in the change of the contract from one for a sale on credit to a cash transaction, it is only because the plaintiff’s proposal was to give its check instead of actual money for the title to the goods. That is a distinction which it hardly seems -it should be allowed to urge. But assuming that it had a right to stand upon the very letter of its offer, and that the minds of the parties never met on a modification of the original contract, because the plaintiff tendered an ordinary check, while the defendant demanded a certified one, we think the difference between the two was not of such a character as to excuse the plaintiff from taking the goods offered by the defendant, and to authorize it to buy them elsewhere at a higher price and look to the defendant for the excess. The fact that the plaintiff was willing to give his personal check negatives any idea of any difficulty on its part in paying in cash. It could hardly be heard to say that it drew the check without having funds to meet it. No suggestion of that kind is made, or of any inability on its part to have the check certified. By doing so it would have changed its. situation in no other respect than that it would have parted with the power of stopping payment. Manifestly the.defendant was unwilling to ship the goods upon the receipt of an uncertified check for fear payment would be stopped. There is a suggestion that a controversy had arisen between the parties on another matter, and it seems probable that the plaintiff wished to remain free to hold the goods and the money both, to better its position in effecting an adjustment of the other matter. But however that may be, we conclude that the plaintiff’s obligation to do all that it reasonably could to minimize its damages resulting from the defendant’s refusal to sell on credit required it to waive its right to stop payment on its check by having it certified, inasmuch as it had expressed its willingness to meet all the other conditions imposed upon it, and to accept the benefit of the additional discount. If it intended that the check should be paid it could have lost nothing by having it certified, and ordinary fairness would forbid its being heard to say that it had any other purpose.
The judgment is affirmed. | [
-13,
124,
-8,
-115,
26,
-16,
42,
-102,
4,
-96,
37,
83,
-23,
87,
20,
107,
127,
93,
-44,
-6,
-12,
-105,
5,
122,
-46,
-45,
-63,
-43,
49,
-8,
36,
92,
76,
100,
10,
-111,
-26,
-64,
64,
28,
-34,
33,
-71,
-21,
-3,
2,
52,
44,
112,
75,
69,
4,
-29,
44,
25,
67,
45,
40,
-23,
57,
-15,
-16,
-86,
-114,
61,
22,
-128,
34,
-110,
-123,
-40,
14,
-112,
49,
0,
-23,
90,
-74,
-122,
116,
43,
-19,
0,
110,
99,
18,
5,
109,
-40,
-88,
38,
-37,
-115,
-58,
-44,
24,
7,
96,
-65,
-100,
62,
16,
54,
94,
-38,
21,
15,
-4,
3,
-74,
-76,
-93,
31,
54,
-100,
27,
-21,
-105,
51,
117,
-52,
-78,
92,
71,
60,
-109,
-114,
-70
]
|
The opinion of the court was delivered by
Mason, J.:
Arthur F. Atkinson, while attempting to cross the track of the Frisco railroad with a horse and wa^on, received injuries as the result of a collision with a flat car, pushed by a gasoline motor car, on account of which he recovered a judgment against the receivers of the company. The defendants appeal.
The petition alleged that as the plaintiff approached the track his view was obstructed from the.time he was within fifty yards of it until the distance was reduced to about thirty feet. The jury found that the defendants’ employees were negligent in running too fast and in failing to give proper warning. They also undertook to acquit the plaintiff of any negligence, but they found specifically that after he had reached a point twenty feet from the track there was nothing to prevent his seeing the approaching motor car if he had looked. Inasmuch as from the time the plaintiff was within 150 feet of the railroad until he was within fifty feet of it he was prevented by obstructions from seeing whether the track was clear, it was his duty to look for an approaching car after emerging from this obstructed zone and before attempting to cross. (Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213.) If he failed to do so, he was guilty of contributory negligence as a matter of law and thereby precluded from recovery. If he did look, he necessarily saw the motor car coming, and his failure to stop was an equally effective barrier. The rule is too familiar to require the additional citation of authorities.
The plaintiff testified that when he was ten or eleven feet from the first rail he almost stopped, and looked as far down the track as he could see on account of the obstructions and saw nothing. The jury evidently did not give credit to this, for the finding already referred to negatives the existence of any obstructions to vision between him and the motor car after he was within twenty feet of the track. That the plaintiff had abundant opportunity to see the motor car in time to prevent the collision was emphasized by other findings, establishing these facts: When the plaintiff was 30 feet from the track his view of the approaching motor car was obstructed by freight cars on another track, but he could see along the track for a distance of 210 feet, a range which obviously would increase as he advanced. The motor car as it came around a curve was going 15 or 16 miles an hour. At a distance of 90 feet from the point of accident the brakes were applied. At a distance of 40 feet the speed had been reduced to 9 or 10 miles.
It is suggested that the ordinary rule does not apply, because of the character of the motor car and the car it was pushing, in that they were not nearly so high as a locomotive, passenger car or box car. We think the distinction is without effect here. The plaintiff was bound to keep an outlook for whatever vehicle might be approaching on the track, and the cars were not low enough to prevent their being seen, for the jury specifically found that at 20 feet there was nothing to obstruct' his view of them.
The judgment is reversed and the cause remanded with directions to render judgment for the defendants. | [
-16,
122,
-36,
-81,
90,
64,
42,
-40,
101,
-31,
-89,
-45,
-83,
-45,
-127,
51,
-9,
63,
-47,
43,
86,
-125,
19,
-93,
-110,
-45,
-101,
-59,
29,
-54,
102,
83,
76,
48,
-118,
85,
102,
72,
69,
30,
-50,
28,
-85,
-19,
-103,
48,
-72,
122,
4,
95,
49,
-98,
-29,
42,
28,
-57,
105,
44,
-5,
-83,
-48,
113,
-126,
7,
118,
16,
-79,
36,
-98,
-121,
124,
56,
-104,
49,
3,
-8,
115,
-90,
-111,
-12,
41,
-103,
8,
98,
102,
33,
21,
-81,
56,
-104,
6,
124,
15,
-89,
22,
16,
11,
37,
-105,
-99,
114,
20,
6,
126,
-20,
-35,
89,
48,
3,
-53,
-80,
-109,
-17,
100,
22,
85,
-53,
-95,
18,
113,
-50,
-26,
94,
5,
126,
-101,
-97,
-114
]
|
The opinion of the court was delivered by
DAWSON, J.:
The plaintiff obtained a decree divorcing her from her husband. He had no means, and the court required plaintiff to pay the costs and to pay him two hundred dollars, and imposed a lien on some Cheyenne county land to secure its payment. The land' with its improvements was valued at $1,000.
Plaintiff filed a motion for a new trial, and a motion to set aside the allowance of a money judgment as contrary to law. The latter motion was sustained, the court finding that its former judgment awarding the defendant the two hundred dollars and the lien and costs “was by the court entered without authority of law and is void and invalid.”
Defendant appeals.
The theory of plaintiff’s counsel, and the one which they persuaded the trial court to adopt when it set aside its first judgment, was that the Cheyenne county land was the ex- elusive property of the plaintiff before she married the defendant, and that the civil code, section 673, forbade the judgment first entered. Not so. At the time of the marriage the land belonged to the United States government. Prior to her marriage to defendant the plaintiff had filed upon and entered it as a homestead. She was about 68 years of age and the defendant was about 80 years of age at the time of their marriage. He had about $135 in money. They took up their abode on the homestead. The defendant made improvements on the land, built fences, constructed a cellar, built a substantial addition to the house, a corncrib, a henhouse, a toilet, a stable, a pigpen, a barnyard and a stackyard. On this primitive farm the defendant made the family living, or most of it, for about three years, and until the government requirements were completed and the land patented to plaintiff; then she went away and never returned, and her son ejected the defendant from the premises — turned him out of house and home at eighty-three years of age.
The acquisition of this land from the United States government by compliance with the provisions of the homestead act was effected by the efforts of both husband and wife, and it was not important in whose name the filing entry was made or to which of them the government granted the patent. The court cannot close its eyes to the heroic history of the western Kansas homestead country. Without minimizing the generous and beneficent intentions of the national government which offered 160 acres of land out of the public domain to every family that would improve and cultivate it and reside thereon for a period of years, the land thus acquired was fully earned and richly deserved by the, hardy pioneers who went out there and stayed,. They had to endure the hardships of drought, hot winds, prairie fires, crop failures, isolation, and deprivation. Every family that procured a farm in that way paid a good round price for it. If this elderly couple had begun their married life in their youth in some well-settled community and both had industriously labored for wages and had bought this land with their joint earnings, there would be no room for dispute that the property was acquired through the joint efforts of both. It is just as true and just as clear that the acquiring of the land from the government by their compliance with the provisions ©f the homestead act — improvements, residence, and cultivation for a period of years, with all the attendant hardships endured in so doing — was, in effect, the acquiring of the property by their joint efforts within the meaning of section 673 of the civil code. The trial court’s first judgment was correct, and its later finding that the judgment had been entered without authority of law is erroneous and should be set aside.
Reversed. | [
-15,
106,
-107,
127,
-118,
-32,
42,
-104,
112,
-127,
-89,
87,
-23,
-54,
-108,
121,
122,
9,
64,
106,
-58,
-77,
23,
-127,
-14,
-5,
-111,
-35,
-79,
77,
-12,
-41,
76,
16,
74,
85,
102,
64,
65,
20,
-114,
-58,
-119,
69,
-40,
66,
60,
107,
114,
11,
117,
-113,
-13,
42,
61,
-61,
32,
44,
-53,
125,
25,
-16,
-98,
7,
109,
3,
1,
38,
-106,
-25,
72,
110,
-112,
25,
1,
-24,
115,
54,
-106,
116,
69,
-101,
41,
102,
98,
17,
109,
-17,
-8,
-120,
14,
119,
-115,
-89,
-112,
88,
67,
104,
-66,
-99,
109,
52,
75,
-12,
-17,
13,
93,
-20,
5,
-101,
-42,
-95,
-113,
58,
-120,
-125,
-29,
-89,
-79,
113,
-57,
-30,
76,
67,
122,
-109,
-113,
-37
]
|
The opinion of the court was delivered by
Marshall, J.:
In a petition for a rehearing, the plaintiffs earnestly contend that the principal proposition argued by them was overlooked by the court in Avery v. Howell, 102 Kan. 527, 171 Pac. 628. In their brief, the plaintiffs urged that—
“The court erred in taking from the jury the evidence of the settlement of the specific performance suit brought by Hanna against defendants and in not holding that the settlement of such suit was a waiver of all defenses to plaintiffs’ claim for a commission.”
This court refused to reverse the judgment on account of the withdrawal of the evidence of the settlement, but did not say anything about the trial court’s not holding that the settlement of the suit was a waiver of all defenses to the plaintiffs’ commission. By compromising the action commenced by D. H. Hanna, the defendants did not render themselves liable to the plaintiffs for the payment of any-commission. By compromising the litigation, the defendants did not admit either the justice of Hanna’s claim or that they were liable thereon.. They may have paid $150 to get rid of a vexatious lawsuit when they knew that they could prevail by fighting. To hold the defendants liable for the commission which the plaintiffs seek to recover would be to- discourage settling litigation. The policy of the law should be, and is, to encourage compromises. When they are made, the rights of third parties are not in any way affected thereby. The plaintiffs’ right to recover commission from the defendants cannot be based on the settlement of the action commenced by Hanna.
The plaintiffs cite Davis v. Roseberry, 95 Kan. 411, 148 Pac. 629; Parker v. Estabrook, 68 N. H. 349; Willson v. Crawford, 61 Tex. Civ. App. 580; Foster v. Holbrook-Armstrong Iron Co., 158 Wis. 447, and Kirkland v. Berry, 136 S. W. 832. None of the cases cited is controlling in the present action. In Davis v. Roseberry, supra, the landowner voluntarily accepted $500 in lieu of other performance of a binding contract. In the present action the contract was not binding, and the $150 was not paid in lieu of performance.
The judgment of affirmance is adhered to, and the petition for a rehearing is denied. | [
-48,
-22,
-27,
-87,
-118,
96,
32,
-14,
1,
-93,
102,
119,
105,
-57,
4,
63,
-30,
61,
84,
107,
86,
-78,
7,
50,
-42,
-45,
-39,
-43,
-79,
-17,
116,
94,
76,
44,
-22,
-43,
-26,
-54,
-59,
82,
-118,
5,
24,
69,
-15,
-32,
48,
11,
16,
11,
49,
-82,
-13,
41,
25,
-61,
77,
44,
63,
49,
100,
24,
58,
101,
95,
4,
-79,
52,
-104,
7,
120,
110,
-112,
53,
9,
-56,
114,
-90,
-122,
117,
105,
-69,
12,
-18,
97,
33,
-80,
-17,
-40,
-100,
62,
-1,
-115,
-26,
-43,
8,
3,
65,
-73,
-67,
112,
6,
7,
120,
-1,
29,
-99,
100,
11,
-49,
-106,
-77,
-113,
124,
-108,
3,
-17,
-121,
-112,
116,
-59,
-80,
92,
99,
48,
-101,
-113,
-98
]
|
The opinion of the court was delivered by
Mason, J.:
S. J. Soper sued J. M. Deal for a real-estate agent’s commission of $592.50'. A jury trial resulted in a judgment for the defendant, and the plaintiff appeals.
The defendant owned a farm of 287,acres. The plaintiff brought John M. Doner to him and introduced him as a prospective purchaser. According to the plaintiff’s evidence the defendant availed himself of his services, naming a price of $100 an acre net to him, the plaintiff stating that his commission would be two and a half percent. The defendant testified that he had told the plaintiff and the customer that his price was $100 an acre, and had added: “I have had trouble with real-estate men, and I will not obligate myself to pay any commission. You two fellows will have to fix this commission among yourselves.” The parties separated .without a sale having been agreed upon. Negotiations, however, were continued from time to time for about two weeks, without an agreement being reached. Finally the defendant sold the property to Doner through an agent named McCullough, for $100 an acre, paying McCollough a commission of $25.
The plaintiff contends that a peremptory instruction should have been given for a verdict in his favor, on the ground that his right to a recovery was established by the defendant’s own testimony. A phase of the same question is raised by objections to instructions that were given, to the effect that if the sale through McCullough was made as the result of a new and independent cause not connected with anything the plaintiff had done, after the plaintiff’s efforts had failed and spent their force, and after Doner had finally and conclusively and in good faith decided not to buy on any terms proposed to him by the plaintiff, the verdict should be for the defendant. This is in accordance with the ordinary rule. (Corse v. Kelly, 80 Kan. 115, 101 Pac. 1016; 9 C. J. 621.) The plaintiff does not question the correctness of the general doctrine, but insists that it has no application here because there was no evidence that his efforts to sell the land to Doner had spent their force, but that, on the contrary, the undisputed evidence showed that they were still negotiating, adding:
“We claim that any! person could tell from the evidence in this case that if Doner could not have got the land from Deal he would have gone to Soper and bought the land and paid him a commission. The conduct of Doner and Deal, in which it was arranged that another man should sell Doner the land, and the manner in which it was carried out, all show plainly, not only that there was a conspiracy between Doner and Deal to heat Soper out of his commission, but that the manner in which they did it was actually fraudulent upon Soper.”
The circumstances lend much plausibility to this argument as one addressed to the jury, but its persuasive force was a matter for their determination. The sale through McCullough took place on the morning after a consultation between Doner and the defendant, in which, according to Doner’s testimony, the defendant told him that another man would sell him the land. The defendant, however, testified that in the conversation referred to Doner told him that the deal was off. While the defendant did not in so many words deny that he had said that another man would sell the property to Doner, he did so inferéntially, by stating that he had said to Doner: “You can’t buy the place of me unless you get rid of Soper; I don’t want no Ihwsuit or any trouble of any kind.with this commission;” and by adding that he had had the place listed with McCullough for about eight months, and that in the meantime he never saw McCullough and didn’t say a word to him about it.
We think the evidence presented a case for submission to the jury and warranted giving the instructions referred to.
The judgment is affirmed. | [
-16,
-18,
-67,
-115,
10,
96,
40,
-40,
81,
-80,
103,
91,
73,
-58,
17,
63,
-95,
125,
84,
106,
86,
-78,
87,
50,
-41,
-13,
-109,
-51,
-75,
109,
-12,
125,
77,
40,
-62,
119,
-30,
-62,
-63,
24,
-114,
-123,
-104,
108,
-8,
64,
48,
25,
20,
75,
85,
-114,
-29,
42,
21,
-61,
109,
44,
-21,
57,
-31,
-88,
59,
13,
127,
4,
49,
102,
-40,
3,
-38,
78,
-112,
61,
9,
-55,
123,
-74,
-42,
84,
13,
11,
-120,
38,
111,
49,
5,
-17,
-24,
-40,
47,
31,
-115,
-90,
112,
88,
66,
72,
-73,
-99,
112,
80,
-78,
-10,
-16,
29,
93,
108,
3,
-77,
-106,
-93,
-81,
126,
-104,
-119,
-17,
-123,
53,
113,
-49,
-94,
93,
85,
118,
-109,
-113,
-67
]
|
The opinion of the court was delivered by
Mason, J.:
D. W. Stratton was charged with arson in setting fire to a dwelling house for the purpose of defrauding insurers. He was convicted, and appeals.
The principal claim of error arises out of the fact that at the request of the state the jury were sent in charge of an officer to view the ruins of the house, no one else accompanying them. In some jurisdictions it is held, and in others denied, that to permit the jury in a felony case to inspect the premises where the offense is alleged to have been committed, in the absence of the defendant, violates his rights by preventing his being present throughout the trial, or by denying him the privilege of confronting the witnesses against him. (12 Cyc. 527; 8 R. C. L. 92; 13 Ency. of Ev. 971, 972; 3 Wigmore on Evidence, § 1803.) The author of the work last cited is strongly of the opinion that no right of the defendant is vio-. lated by the jury’s being allowed to inspect the premises without his being present, because no witnesses are examined, and i'f the proceeding is a part of the trial it is not such a part as he is privileged to attend.
The statute with regard to the right of the defendant to be present at the trial reads:
“No person indicted or informed against for a felony can be tried ■ unless he be personally present during the trial.” (Gen. Stat. 1915, §8121.)
So far as concerns that provision the matter is disposed of by The State v. Adams, 20 Kan. 311. It was there said that this statute is of no higher authority than that authorizing the jury to be conducted by an officer to the place in which any material fact occurred (Gen. Stat. 1915, § 8238), the language of which clearly implies that no one is to accompany them excepting the bailiff and a person appointed to show them the place. In the opinion it was said: “Though the defendant may not go with them into their place of retirement, he is present during that portion as well as the rest of the trial.”
So far as relates to the provision of the bill of rights (§10) that “in all prosecutions, the accused shall be allowed to appear and defend in person or by counsel; ... to meet the witness face to face,” the Adams case determines that if those guaranties have any relation to the present situation they may be waived, and are waived by a failure on the part of the defendant to object to the procedure, and to ask leave to accompany the jury. It does not determine that the mere omission of the defendant to ask to be allowed to accompany the jury effects such a waiver, because the facts made the decision of that question unnecessary. We think, however, the reasoning there, employed jutifies the conclusion that such an omission is sufficient in and of itself to effect the waiver, and that view finds support in decisions in other jurisdictions. (Starr v. State, 5 Okla. Cr. Rep. 440; Whitley v. State, 114 Ark. 243, 169 S. W. 952.)
In the present case, when the state asked that the jury be sent to view the premises the defendant objected, his reasons being shown by the record in these words:
“The defendant objects to the jury being taken away from the court room for the purpose of inspecting the premises alleged to have been burned for the reason that it denies to him the defendant, rights which are guaranteed to him by the constitution and the bill of rights of the state of Kansas, because it takes the jury away from the presence of the court, and because it takes them away from the presence of the defendant, because the defendant has a right to be personally present at all the proceedings of the trial and to be represented by attorneys at all the proceedings of the trial and to have all the evidence of the case presented by the sworn testimony of witnesses which he may meet face to face, and the right of cross-examination of those witnesses by his attorney, and to have all proceedings of the trial incorporated in the record.”
The defendant did not ask to be allowed to accompany the jury, and we do not think his objection can be construed as amounting to such a request. If he had desired to go with the jury it was a very simple matter to have said so, and probably permission would have been granted. To us the record seems to suggest, not that the defendant desired to go to the burned house with the jury, but that he preferred not to ask that privilege lest it be granted, whereby he might use the benefit of his objection on an appeal, in case of conviction.
The defendant contends that he suffered prejudice from thé visit of the jury to the scene of the alleged offense because the premises were not in the same condition as at the time of the fire, inasmuch as a deputy county attorney on the evening before had changed the position of two panels of a partly burned door. Such a change was shown, but the defendant testified that between the time it was made and the inspection by the jury he had himself visited the house and restored the panels to their original position. In view of that fact, the contention is necessarily unfounded.
It is also contended that the attorneys prosecuting the case dealt unjustly with the defendant by cross-examining him with regard to the change made by him in the position of the door panels, without informing either him or the jury of the previous change made by the deputy county attorney. A statement of what had been done by that officer appears to have been made in the course of the state’s argument to the jury, so that opportunity was afforded for clearing up any misconception of the matter that might otherwise have existed. We see no probability of the defendant’s having been prejudiced by the episode.
The judgment is affirmed. | [
48,
-6,
-3,
-66,
107,
96,
38,
-72,
96,
-95,
34,
-45,
-19,
-54,
0,
43,
-11,
107,
85,
123,
-52,
-105,
7,
67,
-10,
-13,
25,
-44,
-70,
75,
-1,
-37,
76,
48,
-58,
-43,
102,
73,
-123,
84,
-114,
-115,
56,
113,
-48,
80,
48,
51,
-34,
31,
17,
-98,
-85,
40,
17,
-54,
73,
41,
74,
39,
80,
-72,
-116,
-115,
79,
16,
-93,
54,
-98,
7,
120,
38,
-40,
17,
1,
-40,
99,
-106,
-126,
-12,
107,
-103,
40,
102,
98,
17,
61,
-93,
-72,
-95,
58,
118,
-81,
-89,
-112,
65,
11,
44,
-73,
-49,
121,
52,
38,
-20,
-26,
84,
88,
100,
11,
-113,
-98,
-15,
-51,
52,
-78,
-30,
-62,
1,
16,
49,
-52,
-14,
84,
66,
83,
-39,
-116,
-99
]
|
The opinion of the court was delivered by
Mason, J.:
Kethi Robar Orozem brought an action against C. A. McNeill, charging him with having retained too large a portion of a collection made for her through him. A demurrer to her petition, on the ground that the action was one for relief on the ground of fraud, and was barred by the two-year statute of limitations, was overruled. The defendant appeals.
The petition set out substantially these facts: The plaintiff had a claim against a railroad company on account of the death of her husband. She made a contract with a lawyer to undertake the collection thereof for a contingent fee of 40 percent. The lawyer arranged with the law firm of which McNeill was a member to assist in the prosecution of an action against the company, for one-half of the fee, after the deduction of expenses. Such an action was brought in a Missouri court. A verdict for $7,000 was returned for the plaintiff, on which judgment was rendered. While a motion for a new trial was pending McNeill negotiated a compromise with the company by which the claim was to be satisfied by the payment of $6,000. He then induced the plaintiff to give him a power of attorney to effect a settlemerit, and to agree to an adjustment by which she should receive $2,650. To accomplish this he concealed from her the fact that the agreement with the company on a $6,000 basis, had already been made, and represented to her that unless she consented to accept the $2,650 as her share of the claim an appeal would be taken and a new trial had, and ■that delay and a net loss to her would resuit. The company paid McNeill $6,000, of which he turned over to the plaintiff $2,650, retaining the rest. This action is brought for $950, on the theory that she was entitled to 60 percent of the amount collected, and that her consent to the acceptance of $2,650 in full of her claim was obtained by the false representations already set out.
The money was paid and divided in November, 1913. No allegation is made that the fraud alleged to have been practiced upon the plaintiff was not at once discovered. This action was begun in January, 1916. The defendant maintains that it is one for relief on the ground of fraud, and is barred because not brought within two years, no tolling of the statute through a delay in the discovery of the real facts being alleged. (Young v. Wittenhall, 15 Kan. 579, 580.) The plaintiff contends that it is her privilege to sue upon the implied contract arising fro'm the defendant’s duty to pay her the amount claimed, and that such an action may be brought at any time within three years, since the statute fixes that period as the limitation for “an action upon contract, not in writing, express or implied.” (Gen. Stat. 1915, § 6907, subdiv. 2.)
This court has held that “whenever one person commits a wrong or tort against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrongdoer to pay the party injured the full value of all benefits resulting to the wrongdoer.” (Fanson v. Linsley, 20 Kan. 235, syl. ¶ 1.) And such'is the general rule (Note, Ann. Cas. 1913 D, 23Ó), which extends to cases where one has been fraudulently induced to part with his money. (Same note, p’ 237; Note, 134 Am. St. Rep. 194, 195; 15 A. & E. Encycl. of L. 1107.) The courts do not agree in their statements of the precise grounds of the rule, or of its scope. It is not merely an expression of the thought that if a contract exists the ordinary remedy for its violation is not cut off because the act complained of also amounts to a tort or fraud. Cases illustrating that phase of the matter are collected and discussed in the note first referred to, at pages 228, 229. In such cases the plaintiff is not required to prove the tort in order to obtain a judgment, and the defendant is not allowed to prove it in order to defeat it; the contract actually exists by the agreement of the parties, and does not result from a legal fiction. But in the broader form in which the rule is stated in the Kansas decision quoted from, it is based, at least in part, upon the principle that the fact that property has been wrongfully obtained from another creates an obligation to return it, which may be treated as the result of an implied promise. Therefore, to show the existence of the fictitious contract or quasi contract sued upon, the plaintiff not only may, but (where this phase. of the rule is relied on) must, allege and prove the tort or fraud. It is often said that the person aggrieved may waive the tort and sue upon the implied contract, but this expression is open tó some misapprehension. What he waives is the right to seek relief through a procedure peculiar to actions founded on tort. Having the privilege of pursuing either remedy, he elects to declare upon an implied contract instead of upon the tort. He does not waive the wrong or fraud that has been practiced upon him by which the defendant has obtained his money or property, but he alleges in effect that because it was so unlawfully obtained from him a promise to restore it is implied.
“The tort is, however, waived only in the sense that a party having a right to sue in tort or assumpsit will not, after he has elected to sue in assumpsit, be allowed to sue in tort. By such an election that which was before the election tortious does not cease to be so. In fact, when the assumpsit is brought, it is only by showing that the defendant did a tortious act that the plaintiff is able to recover. There being no contract between the parties, unless the defendant is guilty of some wrong the plaintiff can establish no cause of action against him.” (Keener on Quasi-contracts, 159.)
According to this view, the circumstance that the plaintiff is required to prove the fraud or other tort in order to recover does not prevent the maintenance of his action as one upon an implied contract.
In a number of cases it has been held that the fact that a right of action upon a tort has been barred by the statute of limitations does not ordinarily prevent a suit being maintained upon the resulting' implied contract, where the situation is such as to make that remedy otherwise available. (Note, Ann. Cas. 1913 D, 238.) This doctrine has been criticized on the ground that “there is no conceivable reason why, in the case of a particular wrong, one form of action should be available after another is barred; the purpose of the statute is that upon the expiration of the specified period no action shall be brought for the redress of the wrong.” (Woodward, The Law of Quasi Contracts, § 294.) In jurisdictions where the common-law forms of action have been abolished the nature rather than the form of an action is regarded as determining what statute of limitations • is applicable. (Note, 12 Ann. Cas. 175.) Adherence to that view is indicated by a decision of this court, the scope of which is shown by this language of the opinion:
“It may be objected that this was nbt an action for relief on the ground of fraud; that it was simply a proceeding against a garnishee; but legal proceedings, like things, are what they are in essence and not what they may be named. The essential thing in this proceeding was that the plaintiff desired to be relieved from the legal consequences of the execution- of these conveyances, and for this purpose he charged that they were fraudulently' made. That he charged this by his evidence, rather than by a formal petition, could make no difference in the nature and essence of his action, nor limit the right of the party against whom the relief was sought to urge the bar of the statute of limitations.” (Nelson v. Stull, 65 Kan. 585, 591, 68 Pac. 617, 70 Pac. 590.)
In the present case, according to the allegations of the petition, an adjustment was had between the plaintiff and the defendant by which she agreed to accept $2,650 in full of her claim. She cannot recover in any form of action unless she, in effect; succeeds in having that settlement set aside on the ground of fraud — to accomplish that purpose is essentially the object of her proceeding. The statute declares that “an action for relief on the ground of fraud” must be brought within two years from the discovery thereof. (Gen. Stat. 1915, § 6907, subdiv. 3.) By its terms this provision might apply to an action nominally based upon an implied contract, as well as to one avowedly founded upon a tort. Inasmuch as' the fraud must be shown in order to warrant a recovery, the action is literally one “for relief on the ground of fraud” — the contract feature of the case is a mere fiction growing out of the fraud. This provision of the statute is fairly to be regarded as entitled to preference over the one relating to. the time within which actions upon contracts must be brought, because of being more specific in its nature. Another reason exists for giving it the greater effect. In enacting this law the legislature had before it the question as to how long, as a matter of public policy, a person who has been defrauded, and who knows of the fraud, ought to be allowed to wait before invoking a judicial examination of the facts. Consideration must have been given to the argument that the peculiar difficulty in meeting a charge of fraud — in establishing the good faith of a transaction which upon its face is conclusive of the rights of the parties — may be greatly increased by delay, and that the accused ought in fairness to be called to account within a reasonable time — short enough so that his means of showing the true facts would not be likely to have been impaired. Inasmuch as the lawmaking body, presumably upon this reasoning, has decided that a charge of fraud as a basis for relief to the. injured person should not be entertained unless made within two years of its discovery, it may well be thought that for the courts to permit substantially the same result to be achieved by bringing an action upon an implied contract to restore the fruits of the fraud would be to allow the legislative purpose to be defeated by indirection.
The court concludes that whatever may be the rule as to other torts, an action upon an implied promise, resulting from the fraudulent obtaining of the plaintiff’s money, must be brought within two years after the discovery of the fraud.
The judgment is therefore reversed and the cause remanded with directions to sustain the demurrer to the petition.
Marshall, J., dissents. | [
-78,
124,
-8,
-115,
10,
96,
42,
-70,
121,
-127,
-91,
83,
-87,
14,
4,
111,
-21,
57,
81,
104,
-10,
-77,
23,
-62,
-46,
-13,
-47,
-59,
-79,
-36,
-28,
94,
76,
34,
74,
-43,
102,
74,
65,
82,
-114,
4,
-85,
-59,
89,
96,
48,
57,
22,
78,
81,
-98,
-13,
40,
29,
-49,
108,
45,
-1,
57,
-48,
-16,
-125,
13,
79,
20,
17,
38,
-100,
7,
72,
62,
-104,
53,
1,
-24,
114,
-74,
-122,
84,
107,
-103,
12,
110,
98,
-31,
5,
-17,
-100,
-104,
7,
94,
-97,
-89,
18,
40,
11,
109,
-74,
-99,
116,
20,
-89,
-4,
-16,
-107,
28,
44,
9,
-113,
-42,
-77,
31,
118,
-100,
19,
-17,
-95,
54,
80,
-51,
34,
92,
-121,
123,
-101,
-113,
-67
]
|
The opinion of the court was delivered by
West, J.:
A bank in which the defendant Frost had deposited certain money was garnished in actions to recover on certain promissory notes. The garnishments were discharged on the ground that the money was exempt, and the 'plaintiffs appeal.
The defendant asserts the exempt character of the fund because borrowed for the purpose of paying for improvements on his homestead. His evidence, in substance, was that he with his family had occupied' his farm as a homestead for about eighteen years; that about June, 1917, he made a loan thereon for $6,000, paid off a loan of $3,600 out of the proceeds, and a commission note or two, paid the garnishee about $500, drew out about $100 for his own use, and left about $1,100 in the bank, with which he intended to pay an obligation at another bank that had been accumulating there for silos and other im provements he had put on his place; that he owed this other bank about $3,500, for which it held security on cattle and horses worth about $2,000 and some implements worth about $100;'that when he built the silos he drew his checks and this bank paid them. He testified:
“I expected to use this money the same as’any other money. I never intended to use any of this money to pay off the loan on the homestead.”
He further testified that he intended to pay two of the plaintiffs out of this money, if he did not get another place; that he intended to pay them sometime; that he had owed them for a number of years and intended to pay them out of this money he got, if he got no other; and that he was treating this money the same as any other.
The wife testified that the money deposited in the bank, in her husband’s name “came from the loan we made on the home.” She knew of her husband’s owing the other bank the money advanced to build silos. She and her husband talked over the matter of making the loan. She signed the note and mortgage in order to raise money to pay the money advanced by the other bank to pay for silos and other improvements on the farm. That was the reason she consented to mortgage the homestead.
It appears that the husband had talked some of trading his farm for western land, but he testified that he did not intend to do so when he made this loan, saying “This is the only place I ever owned and everything I bought went on this place.”
It was alleged that the notes sued on were for money which went to the erection of improvements on the homestead, but this claim was waived by all but one of the plaintiffs, whose claim of lien was by the trial court denied. Hence, the exemption question is the only one presented.
Of course, any part of the deposit which Mr. Frost intended to use for ordinary expenses would not be exempt, but as only about $100 seems to have been thus used and as the amount garnished was apparently enough to pay all the claim sued on, the result depends on the character of the remaining fund on deposit, which character in turn depends on the' intention the depositor had when he left it in the bank. (Smith v. Gore, 23 Kan. 488; Milberger v. Veselsky, 97 Kan. 433, 155 Pac. 957.) In Brenneke v. Duigenan, 6 Kan. App. 229, it was held that—
“The husband and wife have a right to sell or mortgage the homestead, and the money derived from such sale or mortgage is exempt.” (syl. ¶ 1.)
The defendants could have sold their homestead and devoted the proceeds to other purposes, or they could have used the proceeds to tiuy another homestead and, such intention existing, such proceeds would have been exempt. The general purport of the husband’s testimony was that he intended to repay the other bank the money it had advanced for building silos. The wife testified that for this purpose only she signed the mortgage, and there is therefore fair support for the conclusion of the trial- court that the money was exempt.
A'mortgage on the homestead for the purpose of paying for improvements could not legally harm general creditors; neither could they resort to the proceeds to pay their nonlienable claims.
The motion to discharge the garnishment was heard by the court on an adjourned day of the June term. A jury was demanded and denied. The statute (Gen. Stat. 1915, § 7215) provides that issues of law and motions may be heard by the court or judge in term-time or vacation. No authorities are cited to buttress the contention that on the hearing of this motion the plaintiffs were entiled to a jury. Usually motions are triable by the court. Indeed the presentation and determination of a motion have been termed a hearing instead of a trial. (McDermott v. Halleck, 65 Kan. 403, 69 Pac. 335.) There is no provision for making up issues as to the trial of motions. (Berry v. Dewey, 102 Kan. 392, 170 Pac. 1000.) Juries are for the trial of issues of fact, and a demand for a jury on the hearing of these motions was properly denied.
The judgment is affirmed. | [
-16,
120,
-68,
-97,
74,
96,
42,
-104,
64,
-96,
-79,
91,
-23,
-62,
20,
73,
-12,
15,
64,
106,
-57,
-78,
23,
1,
-38,
-13,
-47,
-51,
-75,
77,
-28,
87,
12,
48,
-54,
-35,
102,
-128,
-61,
116,
-114,
5,
40,
-49,
-35,
64,
48,
127,
118,
73,
97,
-97,
-29,
44,
61,
110,
108,
46,
107,
57,
-48,
-8,
-86,
4,
79,
23,
19,
86,
-100,
71,
-54,
46,
-112,
87,
1,
-31,
122,
-74,
-106,
-12,
75,
-101,
9,
118,
102,
48,
117,
-17,
-116,
-120,
6,
-33,
-67,
-89,
-48,
88,
3,
42,
-68,
-99,
126,
80,
6,
-4,
-18,
29,
29,
104,
23,
-53,
-42,
-126,
-119,
60,
-103,
-125,
-1,
-93,
49,
97,
-49,
-94,
76,
71,
120,
-109,
-116,
-47
]
|
The opinion of the court was delivered by
Porter, J.:
The question for determination is whether it is the duty of the county clerk to extend upon the tax rolls a levy which is not made by a rural high-school district until after the third-Monday in April, and not certified to the county clerk until long after the 25th day of July.
Rural high-school district No. 93, of Jefferson county, was organized at an election held on August 5, 1918. The greater portion of the territory of the district lies in Jefferson county, but it embraces also territory in Jackson and Shawnee counties. The board of directors of the district, at a called meeting held on the 14th day of September, 1918, made a levy of taxes for the expenses- of the current year, and the clerk of the board duly certified the levy to the county clerks of the three counties. The defendant, as clerk of Shawnee county, being doubtful as to his authority, declines to extend the levy upon the tax rolls.
The statute provides that the board of each rural high-school district shall meet annually on the third Monday in April and make the necessary levy for taxes. (Laws 1917, ch. 284, § 4.) The general statute' relating to the levy of school taxes provides that the clerk of the school district shall, on or before the 25th day of July in each year, certify to the county commissioners the aggregate amount by them determined in each district to be necessary for school purposes, upon receipt of which it becomes their duty, on or before the first Monday in August, to make the levy upon all real and personal property in the dis trict, and the county clerk shall place the same upon the tax roll. (Gen. Stat. 1915, § 8980.)
It is the school district’s contention that the provisions of these statutes with respect to the time when the levy shall be made and certified are directory only, and not mandatory, 'and that the validity of the levy is not affected by the failure to have the levy certified and extended within the designated time. The rule relied upon is stated in Endlich on the Interpretation of Statutes, section 433, as follows:
“But when a public duty is imposed, and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only, when injustice or inconvenience to others who have no control over those exercising the duty, would result, if such requirements were essential and imperative.”
The same author, in section 436, refers to the serious inconvenience which would often result to the public or to persons who have no control over those intrusted with the duty, if the acts were held invalid because there has been some neglect of duty on the part of the public officers. In the case at bar, it cannot be said that any of the public officers neglected to perform their duty within the time named in the statute, because no duty ,was imposed upon them within the time provided. Rural high-school district No. 93 was not in existence, so that, manifestly, the rule contended for here is an extension of the rule referred to, which is applied in cases where there has been some neglect of duty by the officer, resulting in injustice or inconvenience to the public or to individuals. Provisions of this nature, specifying the time in which public officers shall perform their duties, are generally regarded as directory “unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered as a limitation of the power of the officer.” (Sutherland on Statutory Construction, § 448.) The provisions with respect to time are, under such circumstances, considered merely as a direction with a view simply to orderly and prompt conduct of official business.1 Thus, it has been held that where the time in which an act shall be performed is not fixed for the purpose of giving a party a hearing, or for. some other purpose important to him, the statute will be held as merely directory. (Fay v. Wood, 65 Mich. 390.) In-that case the statute provided that the city council should determine the amount necessary to be raised for highway taxes on or before the first day of June in each year. No hearing was contemplated, and it was held that the statute was merely directory, that the council did not lose jurisdiction or authority to perform the act after the prescribed time.
The exact question has never been passed upon by this court, but in an action not brought until the third day of October, and in which the judgment was not rendered until October 30, a writ was issued to compel the board of county commissioners to levy a school tax. (School District v. Coughlin, 88 Kan. 1, 127 Pac. 219.) The county board in that case had made an insufficient levy, upon the mistaken theory, that an act permitting school districts to exceed the statutory limit, when authorized by a special election, had been repealed. The cases are not parallel, because the school district was not only in existence, but had made a valid levy and the statute‘had imposed upon the county board a duty which it had failed to perform. Here, no duty was imposed upon the county clerk within the time fixed by the statute for performance. The Osage county case goes no further than to establish a precedent for compelling the per-further than to establish a precedent for compelling the performance of a duty after the statutory time has passed, in cases where the officers have failed to perform within the time fixed by statute. We think, however, that in view of the general principles upon which the reason for the rule of interpretation referred to rests, and the interests of the public in a case like the present, we are fully warranted in holding that the provisions in respect of time in which the officers shall act are directory only, and not mandatory. The statute authorizes the organization of a rural high-school district by an election, which it is the duty of the board of county commissioners to call whenever a proper petition is presented asking for such an election, and this without regard to the time of the year at which the petition is presented. As pointed out in the plaintiff’s brief, the legislature, having authorized districts to be formed-by petition and election at any time during the year, it ought not to -be held that this contemplated that districts in which the organization should not be completed until after the third Monday in April must wait until the subsequent school year before being authorized to levy taxes and maintain a school. It is plain that the provisions as to time were not fixed in order to give taxpayers or others interested an opportunity for a hearing. The necessary amount to be levied having been determined, the extension of the levy became a mere ministerial duty, which can ordinarily be performed as well at one time as another, provided sufficient time be given to allow the officers to perform their duties before November 1, when the tax rolls are turned over to the county treasurer. Manifestly, the purpose of fixing the time in which the various officers shall perform their duties was simply to insure an orderly and prompt conduct of official business, and not for the purpose of giving a party a hearing, 'or for some other purpose important to him. We hold, therefore, that the provisions must be regarded as directory only, and not mandatory, and it follows that it became the duty of the defendant to extend the tax levy at any time before the books are turned over to the county treasurer for the collection of taxes.
Judgment will go for th.e plaintiff, and the writ will issue. | [
118,
-20,
-12,
-99,
42,
-64,
107,
-97,
89,
-95,
36,
83,
-19,
-54,
4,
125,
-93,
63,
85,
120,
-59,
-77,
35,
73,
-122,
-13,
-15,
-43,
-71,
76,
-76,
-10,
12,
48,
-54,
-43,
70,
74,
-51,
-48,
-114,
10,
-87,
79,
-39,
64,
60,
104,
122,
74,
117,
78,
-13,
44,
28,
-57,
-119,
45,
89,
-77,
-128,
-15,
-102,
-105,
127,
7,
-111,
38,
-118,
-57,
-56,
-86,
-100,
55,
-64,
-20,
123,
-90,
-58,
-44,
9,
-119,
41,
-28,
98,
18,
61,
-1,
-84,
-119,
46,
114,
61,
-90,
-109,
89,
50,
-116,
-74,
-99,
124,
80,
-57,
126,
-28,
5,
87,
44,
14,
-114,
-14,
-109,
14,
52,
-118,
15,
-17,
32,
48,
113,
-51,
-2,
94,
67,
19,
19,
-42,
-100
]
|
The opinion of the court was delivered by
Mason, J.:
On July 22, 1916, at Rolla, in Morton county, Don Van Wormer shot and killed Martin C. Moore, the sheriff. He was convicted of murder in~the first degree, and appeals.
At about six o’clock in the afternoon of the day of the homicide the defendant was in his real-estate office, which was also his residence, with several friends. The sheriff c(ame to the office with the purpose (according to his own later declaration) of arresting him upon the .charge of having wounded one Lewis Perkins by shooting him, Perkins appearing to have been shot in the face shortly before by some one, probably the defendant, but his injury was not severe, and was doubtless accidental. However, this is not important in the present case. A conversation then took place between the defendant and the sheriff which was variously reported, but according to witnesses produced by the defendant, who were manifestly very friendly to him, he asked the sheriff if he had a warrant for him, and on receiving a negative answer' ordered him to go on away, telling-him to get a warrant if he wanted to arrest him, and saying that he was going to take a shot at his garage, which was opposite the door where the sheriff stood, so that he was nearly in line with it. The defendant almost immediately fired through the screen door with a shotgun, the charge striking the garage. The, sheriff then went to a justice of the peace, procured a warrant charging the defendant with an assault upon himself with intent to kill, and returning to the defendant’s office told him he had a warrant for his arrest. The defendant asked to see it, and the sheriff showed it to him. There is a direct conflict as to what then took place. One of the state’s- witnesses, the county’s representative in the legislature, whose testimony was corroborated in all essential particulars by others, testified, in substance, that the defendant resisted arrest, and that his friends aided him, a violent scuffle ensuing; that the sheriff succeeded in getting the defendant through the door and out of the building, when he wrenched loose; that blows were exchanged, and another scuffle took place, .the defendant’s friends assisting him and striking the sheriff; that the defendant again got away and ran back into the house, procured the shotgun, and fired the fatal shot through the doorway; that the sheriff in the meantime, having been released by his assailants, had gone to a car near by, arid returned with a revolver in his hand, and was standing near the door when shot.
The version of the affair undertaken to be given by the defendant’s witnesses (including his friends who are charged with aiding him in resisting the officer), in its most favorable form for him (the state plausibly contending that it was much weakened upon cross-examination), was to this effect: When the sheriff told him he had a warrant for him, the defendant asked him to read it; he answered that he did n’t have to, at the same time producing the warrant, which the defendant took from his hand; as the defendant was reading the warrant, stepping back while he was doing so, the sheriff struck him a violent blow in the face, and followed it up with others; the defendant did not resist arrest, and his friends interfered no further than to protest against the sheriff’s unnecessary violence.
Many assignments of error are made. That which we regard as the most important grows out of the fact that the court refused to give any instructions with regard to the law of self-defense. There is little difference of judicial opinion with respect to the availability of self-defense as a plea in behalf of one who kills an officer who is endeavoring to arrest him. If the officer is authorized to make the arrest and the accused knows it (as was clearly the case here), and the officer proceeds in a proper manner, no such issue can arise. If the officer, however,, although armed with a sufficient warrant, uses unnecessary and unreasonable force, or wanton violence, this may be repelled under the ordinary rules of self-defense, even to the extent of taking life; but acts done in resistance of the arrest itself cannot.be so justified under any conditions present in this case, although the distinction may not always have been noted. (13 R. C. L. 867; 5 C. J. 750; 21 Cyc. 803; Notes, 33 L. R. A., n. s., 143; 84 Am. St. Rep. 679; 4 Ann. Cas. 844.) Some courts go farther than others in applying the rule so as to protect the rights of the officer (see, for instance, State v. Durham, 141 N. C. 741), but there is a substantial agreement as to the principle by which cases of this kind are controlled, although there is some variation in the language used expressing it. It is held in Kentucky that a plea of self-defense is tenable where the defendant resists arrest and kills the officer attempting it, under a reasonable but mistaken belief that the officer is not acting in good faith. (Fleetwood v. Commonwealth, 80 Ky. 1; Minniard, &c., v. Commonwealth, 87 Ky. 213.) We think that doctrine too liberal to the accused, but in any event it would not apply here. We prefer the rule approved in the North Carolina case referred to, that where the officer to the defendant’s knowledge has lawful authority to make the arrest, it is his duty to submit, and where he is resisting the process of the state, no right of self-defense can arise.
From what has already been said, it is clear that the evidence was sufficient to raise an issue involving the right of self-defense, and that instructions thereon would have been pertinent. However, most, if not all, of the prejudicial effect of the omission to instruct on that subject was cured by the fact that the jury were told in substance that .there could be no conviction unless (in addition to finding all the elements of ordinary first-degree murder) they believed that the killing was done while the defendant was resisting arrest or was attempting to escape from the custody of the sheriff. The jury, therefore, by their verdict of guilty necessarily found (if they followed the court’s instructions) that the homicidé was committed' in resisting arrest (or in escaping from custody, which under the circumstances here present is substantially the same thing), and this eliminated all question of self-defense, for that plea would not then be available.
The court might well have told the jury that if they believed the defendant resisted arrest the element of self-defense could'not enter into the matter, but that if they concluded that he did not resist arrest (or if they were not convinced of the fact beyond a reasonable doubt) then they should further consider whether, in killing the sheriff, he acted under a reasonable belief that the act was necessary to protect himself from great bodily harm or death. If the jury faithfully followed the charge of the court, the omission of the instruction regarding self-defense was not material, because, having decided that the defendant did resist arrest, they would have had no occasion to apply such an instruction. The doubtful question is whether the failure to submit this issue may have influenced the jury in their finding upon the matter of resistance of arrest. It had no legitimate or logical bearing thereon — it could not affect the decision of the jury if they followed their instructions —but the question is whether it might have led to a disregard of them, and so resulted in a verdict which otherwise might not have been agreed to. This question associates itself closely with- another — whether reversible error was committed in instructing that but two verdicts were possible — that there must be either a conviction of murder in the first degree or an outright acquittal. The same situation is presented — if the defendant killed the sheriff while resisting arrest, or attempting an escape therefrom, he was guilty of murder in the first degree, because such resistance or escape is itself a felony.(Gen. Stat. 1915, §§ 3553,3572), and a homicide committed in the perpetration of a felony, being murder at the common law (21 Cyc. 710, 716, 717), is made first-degree murder by the statute. (Gen. Stat. 1915, § 3367.) That the killing was done under such circumstances need not be specifically pleaded. (21 Cyc. 840.) If the jury followed the directions of the court, their verdict, as already stated, implied a finding that the defendant did kill the sheriff while resisting arrest, rendering him guilty of murder in the first degree, and they had no occasion to know what would constitute second-degree murder or manslaughter. But if the jury had concluded that the defendant did not resist arrest, then they would have had need to know the constituents of these inferior degrees, and the question remains : Is there a reasonable probability that the omission to give them that information for their use in that contingency (which did not occur) influenced them in deciding the separate and independent question whether the defendant resisted arrest? Convictions of murder in the first degree have’been set aside by this court because of the omission to instruct upon the lower degrees of homicide, where such an instruction was warranted by any reasonable theory of the evidence. (The State v. Curtis, 93 Kan. 743, 145 Pac. 858.) But it does not follow, nor is it true, that a reversal is always required in such a case. Of that situation it has been said:
“Where the jury under proper instructions have found a defendant guilty of every element of the superior offense, erroneous instructions or a total failure to instruct with reference to an offense inferior in degree and including less criminality cannot, logically, be said to have influenced the jury. The failure of the court can only be. said to be prejudicial to the defendant on the theory that the jury failed to fully comprehend the definition of the superior degree, or misconstrued and misapplied the law to the facts. To indulge in such presumptions, even though we know that mistakes are made by juries and courts alike, is to overturn the whole theory of the administration of justice.” (The State v. McCarty, 54 Kan. 52, 59, 36 Pac. 338.)
“Generally error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions relating to it. Should it appear that if omitted instructions duly requested or clearly required by the evidence had been given the jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error.” (The State v. Winters, 81 Kan. 414, 421, 105 Pac. 516.)
The problem is the familiar one of determining whether an erroneous ruling in the presentation of a case to the jury is of such character as to require the setting aside of a judgment founded upon their verdict. Where the matter, for instance, is one of the admission of incompetent evidence, the question is not what effect the objectionable testimony has upon the appellate court’s opinion of the facts, but what effect it may be presumed to have had upon the j'ury. A judgment must often be reversed without the reviewing court being at all sure that the error committed influenced the verdict; and, on the other hand, judgments may sometimes, be affirmed without the reviewing court being sure that the error did not influence the verdict. Absolute certainty is not necessary or practicable. The mere possibility of prejudice is not enough to require a new trial; nor does the test to be applied admit of a more precise statement than that the tribunal charged with the duty of deciding upon the materiality of the erroneous ruling shall, according to its best judgment, determine whether there is such a reasonable likelihood of its having affected the verdict that the interests of justice require a new trial.
In the present case there is much to indicate that, notwithstanding any errors committed, the jury have decided the vital matters in dispute exactly as they would have done if every rule of procedure had been strictly followed, and have reached a conclusion that the defendant is guilty of murder in the first degree, upon satisfactory evidence of that fact. The real controversy was whether the defendant resisted arrest. A part of the testimony given in his behalf tended to prove that he merely resisted the exercise of undue and unreasonable violence by the sheriff, but the jury clearly discredited this claim, upon abundant evidence, the force of which cannot be fully appreciated without a statement of a subsidiary issue that was brought into the case by him. He did not take the stand himself, nor was any statement to the jury of his defense, or any argument to them in his behalf, made by his counsel. Rut from the evidence given by his witnesses, and from the offers of proof made by his attorneys, it is plain that he relied upon a claim that before the sheriff attempted to serve his warrant ■the defendant had been placed under arrest by a constable, who had deputized two bystanders to take charge of him, and that by reason of his being already in their custody the sheriff had no right to take him in charge. Much of the evidence introduced and offered by the defense was in relation to this matter. It is difficult to discover any bearing of this on the merits, unless as a justification of resistance to the arrest by the sheriff. The trial court, by various rulings, held in substance that the acts of the constable interposed no legal barrier"to the service of the warrant by the sheriff. Assuming that the constable was authorized to make an arrest, and that he and his purported deputies were acting in good faith, the sheriff was entitled to take charge of the defendant, because he held a warrant charging the commission of a felony, while the offense for which the constable undertook to hold him was that of dis turbing the peace, and the sheriff was the principal peace officer of the county, in aid of whom the constable professed to be acting. Moreover, it is difficult to believe that the evidence leaves any room for substantial doubt that the sole purpose of the purported arrest by the constable, and the placing of the defendant in charge of his two friends, was to obstruct the sheriff in his attempt to arrest him. This being a matter of the greatest importance, a^ bearing upon the real merits of the case, a statement of a part of the evidence in some detail seems warranted. The constable testified that he followed the sheriff on his first trip to the defendant’s office because some one called to him that the sheriff wanted a man to go with him, his purpose being to assist him; that he made the arrest after the sheriff had left to get a warrant; that later he put the defendant in charge of Walter Littell and J. E. McCarty, and went to the justice of the peace and obtained a warrant (without filing a complaint) charging the defendant with disturbing the peace. A part of his cross-examination with regard to the circumstances attending this arrest reads as follows:
“Q. You have said that you went up and placed Don Van Wormer under arrest, on the 'charge of disturbing the peace, because of something that Walter Littell came and said to you. That’s correct, is n’t it? Now I will ask you if that is correct? ... A. Well, yes.
“Q. What did Walter Littell say to you that caused you to go and put Don Van Wormer under arrest, on a charge of disturbing the peace? A, He says ‘Don [the defendant] wants to see you, Fred,’ were his exact words.
“Q. Is that all that he said that caused you to go? A. Yes, sir.
“Q. And then you walked right in and put Don under arrest, for disturbing the peace, did you? A. I walked right in and Don surrendered to me.
“Q. And you put him under arrest for disturbing the peace, did n’t you? ... A. I fetched no charge against him, sir.
“Q. Well, what did you arrest him for? A. Because he surrendered to me.
“Q. Well, on what charge did you take him into your custody? A. As I said, no charge. He preferred no charge against him.
“Q. Have n’t you said that you did that on the ground of disturbing the peace? A. That was my warrant that I got.
,“Q. But didn’t you — for what reason did you take him into your custody, without the warrant? A. Because he surrendered to me.
“Q. Surrendered to you? What had he done to surrender to you, on any kind of a charge, or for any reason whatever? ... A. He told me he wanted to surrender to me.
“Q. On what charge? A. There was no charge mentioned at that time.
“Q. Well, on what charge did you hold him? A. As I said, I had n’t fetched no charge against him.
“Q. Did he say why he wanted to surrender to-you? ... A. Well, yes.
“Q. He made a statement to you? A. Yes, sir.
“Q. What did he say he had done, for which he wanted to surrender? A. He says ‘I am willing to surrender to my home officer.’ ”
[This answer was stricken out, as not responsive to .the question, but it was later repeated in substance.]
“Q. What crime did he say he had committed, that he wanted to surrender to you? Or for any crime? A. He did n’t say any crime.
“Q. He did n’t say ,any crime? A. No, sir.
“Q. No crime at all? A. No, sir.
“Q. Now you say that when you first went up there without a warrant, you did n’t take him into your custody or charge, because he had disturbed the peace? A. I arrested him.
“Q. For disturbing the peace? A. I had no — I preferred no charge against him.
“Q. You did n’t? A. No, sir.
'“Q. Well, why did you arrest him? Q.'. . . What reason did you act upon in going into his office at the time you went in, that night, without any warrant and putting him under arrest? ~A. To enforce the law.
“Q. To enforce what law? A. The laws of the state of Kansas.
“Q. What law? What particular law were you enforcing? A. Well, the laws in general.
“Q. Well, what one, individually? Any one? A. No. Had no particular law.”
The justice' of the peace who issued both warrants testifiéd that the first warrant was upon a charge of disturbing the peace — a “general charge” — “there was no particular person mentioned”; that he issued it to the constable, at his request, to hold the defendant in custody while he should see about the sheriff’s complaint and warrant — whether he would still issue it or not; that his intentions a moment after handing the warrant to the constable were that he should hold the defendant until the sheriff should arrive with his warrant.
The defense made an offer (which was rejected) to prove by the constable “that when the sheriff came there, this witness and the Littells and McCarty, being the parties with, whom he had left the defendant, in their charge, told the sheriff that they had a warrant for the defendant, and they were about to take him down to Justice Perkins’ place for trial, and told him that they would not permit him, the sheriff, to take him away from them, and ordered the defendant not to go with the sheriff, and that this order was made in the presence of Moore.” J. E. McCarty, one of the persons deputized by the constable, testified in chief that the constable said that they should guard and “protect” the defendant, a statement which was stricken out by the court on motion of the state. The defense then offered (the offer being denied) to show that the constable said to the witness: “I don’t want you to give him [the defendant] up to any body, and I don’t want you to let anybody take him away.” An offer was also made to show that Walter Littell said to the sheriff, speaking of the defendant:, “He is already under arrest. He is our prisoner. We are ordered tc hold him, and we are going to hold him.” McCarty testified that he told the sheriff “for him to just wait until Fred Thompson came and relieved us and he could have him.”
Of course, the defendant is not absolutely bound by the statements of his witnesses. But the trend of the testimony generally, as well as of the particular passages referred to, is to show that the attitude of the defendant was that he had a right to resist arrest because he was already in charge of the constable. As already indicated, we hold that the arrest by the constable would have offered no" justification for resistance to the sheriff, if it had been absolutely regular and in good faith. And it may be said, almost as a matter of law, to have been a mere sham and pretence; there is so little room for a real doubt on the subject. It clearly originated with the defendant as an excuse for resisting the sheriff, and the conclusion is almost irresistible that those participating in it were acting from the same motive. But if they were actually under a misconception as to their duty in the matter, this could not avail the defendant.
In view of these considerations, we feel, entirely confident that the decision of the jury, that the defendant killed the sheriff while resisting arrest, and was therefore guilty of murder in the first degree, was" based upon satisfying evidence, a.nd was not influenced by the omission of the court to give instructions as to what the verdict should be in case they failed to find that fact. It follows that a reversal is not required by the absence of instructions regarding self-defense and the inferior degrees of crime.
The argument against this view is that the jury, although not convinced that the defendant had resisted arrest, may have felt that he ought not to escape punishment altogether, and may have been moved by that consideration to disregard the instructions of the court and return a verdict of murder in the first degree to avoid an absolute acquittal. If the element of resisting arrest were not in the case, the fact that the jury' were not given an opportunity to decide between first- and second-degree murder, according to whether or not they found the homicide to have been deliberate and premeditated, would have left more room for invoking this theory, because the one degree of the crime ordinarily so grades into the other as to give greater opportunity than is here presented for choice between them, and make the formation of a satisfying decision on the subject- the more difficult. But the question whether the defendant resisted arrest was a matter of physical fact, more readily and definitely determinable than one concerning a state of mind — and it was the outstanding issue of the case, about which everything else revolved. The possibility that the jury may have proceeded upon the ground suggested, appears to us to be too remote to be made a reason for ordering a new trial.
In behalf of the defendant, it is urged that the instructions of the court amounted to a peremptory charge to convict, because they, in effect, advised the jury that all that was necessary to require a conviction was that the sheriff should have attempted to arrest the defendant, and should have been killed by him. We do not think this a fair interpretation of the instructions. The distinction between resisting an arrest and resisting unjustifiable violence of the officer making the arrest is not obscure, but is one readily grasped by the jury, and the charge as a whole made it clear that the issue was whether the defendant resisted the lawful demands of the officer.
The court instructed the jury in these words:
“In every case where one person has a right to arrest or restrain another, the other can have no right to resist, since the two rights cannot coexist; and where a person thus having the right to arrest another is killed by the latter in the resistance of such arrest, the resistance is a crime, and the killing is a homicide in the commission of an unlawful act. No right of self-defense can arise out of such circumstances.”
This is criticised in the defendant’s brief, where it is said:
“In the first place, the court was absolutely wrong; the two rights can exist as we have heretofore shown by the citation of a number of authorities, whose reasoning cannot be questioned. The right to arrest can exist, but if that arrest is attempted to be made in an unlawful manner, the right to resist the same can also exist.”
The entire instruction quoted is transcribed literally from a recent text (13 R. C. L. 867), the first sentence being taken from a note in 66 L. R. A. 356, and based in part upon language used in State v. Albright, 144 Mo. 638, 653. We do not think the instruction open to the construction which the defense seems to place upon it. It does not negative the existence of a right to resist the use of undue force by the officer, and, under the evidence here, we do not think the jury were likely to so interpret it. Elsewhere the jury were told that “if . . . the defendant grabbed the warrant from the sheriff’s hands and refused to give it back to him, then it was the duty and privilege of the sheriff to use such force as necessary to make the arrest,” and also that “he would be justified in using such force as necessary in recovering possession of the warrant and in making the arrest.” They were also told that a defendant is bound‘to submit to a known officer, and yield himself immediately and peaceably, before the law gives him a right to> have the warrant read, or to inspect it, “and when in resistance the law shows him no favor.” The words quoted are criticised as not being the law. The statement is somewhat general, but we think it entirely true, and not misleading.
Complaint is also made of the giving and refusal of various other instructions, but if any error was committed in this regard it was with respect to the matters already discussed, and, upon the same reasoning,, we hold it to have been nonprejudieial.
The contention is made that the information was not properly verified, because the affidavit thereto was taken by a notary public. In some jurisdictions this is not sufficient, but our statute provides that notaries are “authorized to administer oaths pertaining to all matters wherein an oath is required.” (Gen Stat. 1915, § 6744.) This includes taking affidavits in criminal proceedings. In one case a different conclusion has been reached (Richards v. State, 22 Neb. 145), but we disagree with it. In another ease the ruling is affected by the absence of a statute. (Bowes v. State, 7 Okla. Cr. 316.) The competence of a notary public to administer the oath in such a case is upheld by other courts. (Mitchell v. State, 126 Ga. 84; State v. Mullen, 52 Mo. 430.) Moreover, no objection appears to have been made to the verification, and the irregularity, if there had been one, would have been waived. (The State v. Blackman, 32 Kan. 615, 5 Pac. 173.)
A motion'by the state to quash the first panel of jurors drawn was sustained. Upon the hearing, evidence of the county clerk was used which, on ¡account of his sickness, had been taken at. his house, the defendant not being present. The defendant asserts that his constitutional right to meet the witness face to face (Bill of Rights, § 10), and the requirement of the statute that no person informed against for a felony can be tried unless he be personally present (Gen. Stat. 1915, §8121), were both thereby violated. Counsel for the defendant were expressly given an opportunity to attend the taking of the testimony, and refused to avail themselves of it. No request was made by or in behalf of the defendant to permit him to be present, nor was any objection made to the proceeding until after the testimony had been introduced and the court had inquired whether the defense had anything to say before the'motion was passed on. The rights of the defendant in respect to being present when the testimony was given, both under the constitution and under the statute, may be waived (The State v. Way, 76 Kan. 928, 93 Pac. 159; The State v. Adams, 20 Kan. 311), and we hold that under the circumstances they were waived by the failure to ask permission to exercise them, and by the failure to make an earlier objection. (The State v. Stratton, ante, p. 226, 173 Pac. 300.)
A special venire was selected by the court from the assessment rolls. The defendant moved to quash it because it had not been shown (except by the clerk’s testimony) that there was no jury box containing a proper list of names, and complains of the overruling of the motion. This involves the same question, and requires the same ruling.
The case had been taken to Hamilton county for trial. A motion for a further change of venue on the ground of prejudice of the judge was made and overruled. Whether or not the evidence introduced by the defendant on the motion was sufficient to make a prima facie case, the statement of the judge himself showed abundant warrant for denying the motion. (City of Emporia v. Volmer, 12 Kan. 622.)
This motion for a change of venue was overruled on December 7, 1916. The court then set the case for trial on Monday, December 11. On December 2 a stipulation had been entered into by the attorneys for the defendant and the county attorney of Morton county, for the taking of the depositions of witnesses in behalf of the defendant at Bethany, Harrison county, Missouri, on December 9, the stipulation including a waiver of a special commission, and an agreement that the depositions should be taken and read in evidence and- used in all particulars “as though taken with all the provisions of law provided for taking the same having been fully complied with.” On the 7th of December the defendant’s attorneys objected to the case being set for December 11, on the ground that depositions taken in Missouri on December 9 could not possibly be filed, as the code of civil procedure requires (Civ. Code, § 359), at least one clear day béfore the day of trial, and that the county attorney who had made the stipulation had informed the defendant’s attorneys that he could not live up to the agreement — that John W. Davis, an attorney assigned to the prosecution by the attorney-general, had told him (the county attorney) he had no right to make such an agreement, and that it was a device on the part of the defendant’s attorneys to get perjured testimony. This colloquy took place between counsel:
Defendant’s attorney: “The attorney who now claims to represent the attorney-general, has here to-day, in open court, disavowed this agreement, and claims it was obtained by fraud and collusion. We would like to know at this time, whether he wants to stand by that disavowal, or whether he wants to go ahead and take the depositions.”
Mr. Davis: “I decline to be cross-examined. These gentlemen can take their-depositions. The law provides how they shall get their testimony. If' they have gone into some unauthorized agreement, they can take the consequences of .it. We are going .to he represented at the taking of those depositions, providing the distance is not too great for. us to reach there, and that will probably settle the controversy.”
Defendant’s attorney: “We don’t want to go on a wild-goose chase. You now state in open court that you are not going to stand by that agreement, do you?”
Mr. Davis: “You have gone into an agreement regarding the taking of these depositions, forty-eight hours before this trial, and if you do not get your depositions here and they are not lawfully made, we will try to suppress them. You can take your own chances on that, sir.”
Defendant’s attorney: “Our agreement was in regard to taking and using the depositions. It covered the using of them also.”
When the case was called for trial, on December 11, an application for a continuance was made by the defendant’s attorneys on the ground that they needed the evidence of the witnesses in Missouri, which they had not taken on December 9, on account of the matters already stated, and because, without a waiver, such depositions could not be used unless on file one clear day before the 11th, and that it would be impossible to get them on file that soon. The court overruled the application, saying to the defendant’s attorneys:
“The court, when you gentlemen were discussing this matter on last Thursday ■ — • I think right after Mr. Amidon had asked Mr. Davis whether they were going to stand on this agreement or not, or whether they were going to deny the agreement — and after you had discussed this matter for some little time, I said to you gentlemen that Mr. Davis had said something about if they could get there and cross-examine these witnesses, if they could make their arrangements to get there, they Aould do so and would appear and cross-examine them if they had the time in which to get there. If they could get there and cross-examine and take their testimony, they intended to do so, and I said then, that this matter then would not come up at all, in case they did get there and cross-examine, this would not have come up, and of course, if you gentlemen had appeared there and taken this testimony, you would then be in a different position. The court certainly would not have forced you into trial if those depositions had been suppressed, but you did not appear there, neither did your witnesses appear, and.the state had a representative there.”
We think it was a fair matter for the trial court to determine whether or not he should grant the continuance, in view of the fact that the attorney in charge of the prosecution had said that the state was going to be represented at the taking of the depositions if the distance was not too great for one of its attorneys to get there, and that that would probably settle the controversy. The prosecution had given notice that it would challenge the validity of the agreement (in case it failed, to have a representative at the taking of the evidence), but no ruling of the court had been made that the stipulation was collusive or unauthorized. Had the depositions been taken, it is clear that if they had been attacked the court would either have held them to be admissible or else have granted time for retaking them.
Objections are urged to the competency of a number of jurors on the ground that they had formed opinions on the merits of the case prior to their selection. Some of their statements had a tendency to support this claim. But the question upon which the acceptance or rejection of a juror turns is, not whether he says he has an opinion, but whether, as a matter of fact, he has such an opinion as under the law constitutes a disqualification. He may describe as an opinion a state of mind which could more accurately be called a mere passing impression. His actual mental condition forms a question of fact for the determination of the trial court upon oral testimony, and a decision made under such circumstances can be reversed by a court which has not had the advantage of seeing and hearing the jurors, only when it is clear that a wrong result was reached, or that there has been an abuse of discretion. (The State v. Stewart, 85 Kan. 404, 116 Pac. 489.) We think such a condition is not shown here.
Complaint is made of the overruling of various objections to the admission of evidence. Several answers that are objected to were stricken out, but it is asserted that prejudice nevertheless resulted because they were afterwards referred to by counsel for the prosecution. We do not think the probability of prejudice sufficient to justify a reversal. Witnesses were permitted to testify to the appearance of the defendant— that he looked angry, that he appeared to have been drinking, that he seemed cool and unconcerned, and that he seemed to be tempting the sheriff. There are cases holding such testimony incompetent, but we regard the modern tendency to the contrary as based on the sounder reason. (3 Wigmore on Evidence, § 1974.) A witness was allowed to testify that two or three seconds after the shot through the screen door the sheriff said to him, “I don’t want to hurt him. I am going to get a warrant just to please him.” He added that this was not in the presence of the defendant; but it was so soon after the shot that it may perhaps be considered a part of that transaction. What the sheriff said would of course not be admissible as evidence of the facts declared, merely because of his being the person the defendant was charged with murdering; but these expressions may have been competent as indicating his state of mind. (3 Wigmore on Evidence, § 1732.) In any event, we do not think their admission' sufficient to constitute a ground for reversal! A witness for the state testified that after hearing Van Wormer say, “Wait till I get my gun,” just before the fatál shooting, he ran away. The witness was asked whether this, was because he considered the defendant a dangerous man. Oyer objection, he was permitted to answer, and complaint is made of this. But, as he answered “No,” it is difficult to see how the defendant could have been prejudiced. The witness added something to this answer, but the court struck it out. The defendant insists that the effect was.injurious to him, because the question was then asked: “Are those the reasons for your running away?” and answered in the affirmative. No objection was made to this question or answer, and the witness had previously given his reasons, to which they could apply, namely, that he was afraid there would be some' more shooting,.and he did n’t want to be close.
The state introduced \in evidence the screen door through which the shot was fired. The defendant asserts that thereby his privilege'against self-incrimination was violated, because the door, belonging to him and in his possession, had been taken away without his consent. That the state obtained the door unlawfully is not a just ground for refusing to admit it in evidence, inasmuch as the defendant was not compelled to surrender or produce it by testimonial process or order .of the court. (The State v. Turner, 82 Kan. 787, 109 Pac. 654.)
The state was permitted to prove that the sheriff had a wife and five children, whose ages were shown. This was quite outside'the issues, but we think it would not be reasonable to suppose that the jury were influenced by it.
The court rejected evidence offered by the defendant intended to show that he was already under arrest when the sheriff returned with the warrant, and that the sheriff was so informed. As has already been said, we agree with the trial court that the purported arrest by the constable could not constitute a defense, nor have any mitigating effect. Some evidence offered for this purpose and rejected was doubtless competent as showing the circumstances of the homicide, but all the essential matters were brought out with reasonable fullness. Evidence of the extent of injuries received by the defendant in the struggle was ruled out, perhaps unnecessarily, but this was not a vital matter. The volume of evidence was great. Much of it had only a remote connection with the real controversy. We think all was admitted that was necessary to enable the jury to’ reach a just result.
A final complaint is made of the argument of counsel. It seems unnecessary to state in detail the specifications under this assignment. We do riot think the rules of propriety were so far transgressed as to call for a vacation of the judgment.
The judgment is affirmed.
ORDER STRIKING PETITION FOR REHEARING FROM FILES.
On July 15, 1918, a petition for a rehearing was filed in behalf of the defendant. On the same day an order was made to the effect that, in view of a suggestion that the defendant had failed to surrender himself to the sheriff of Hamilton county in accordance with the order of the court, the petition for a rehearing would not be considered on its merits until such surrender was made, and that unless it was made by July 26,1918, the petition would be stricken from the files. Such surrender not having been made, the petition for a rehearing is on the 29th day of July, 1918, ordered stricken from the files. | [
112,
-22,
-12,
-98,
43,
96,
-86,
-104,
89,
-96,
-32,
115,
-87,
-53,
5,
121,
43,
79,
85,
105,
-92,
-73,
3,
-31,
-78,
-77,
-15,
-57,
-77,
-55,
-4,
95,
8,
96,
74,
89,
102,
32,
-59,
92,
-122,
-128,
-87,
-12,
82,
26,
48,
47,
0,
-117,
37,
-114,
-29,
43,
30,
-29,
9,
40,
91,
-67,
80,
-15,
30,
-107,
-49,
22,
-109,
-125,
-102,
-121,
88,
60,
-103,
49,
0,
-8,
115,
-90,
-108,
-44,
109,
-103,
44,
-30,
7,
33,
-36,
-19,
-88,
-103,
47,
62,
-99,
-89,
-104,
56,
99,
4,
-74,
-35,
114,
116,
14,
-12,
-17,
21,
81,
108,
5,
-50,
-76,
-111,
-49,
56,
-110,
104,
-55,
-95,
52,
113,
-115,
-22,
125,
69,
81,
91,
27,
-112
]
|
The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action in the city court of Atchison to recover on a promissory note. On March 17,1915, judgment was rendered in favor of the defendants for $125. On March 20, 1915, the plaintiff filed a motion for a new trial, and on April 3, 1915, the motion was called for hearing. The docket of the city court recites the following:
“The defendants objected to the hearing of such motion for new trial for the reason the same had not been heard and determined by the court within five days from the date of trial, such objection was by the court overruled, and thereupon plaintiff filed the affidavit of H. C. Walcott and the defendants claiming surprise asked that further hearing of the motion for a new trial be continued to April 7th, 1915, at 9 o’clock a. m. and this was done.”
On April 7,1915, after the defendants had filed affidavits, the motion was denied. On April 17, 1915, the plaintiff appealed to the district court. In that court the defendants filed a motion to dismiss the appeal. That motion was denied, and a trial was had which resulted in a judgment in favor of the plaintiff for $300. The defendants then filed a motion for a new trial, which motion was overruled. Soon thereafter they filed an application for a rehearing of the motion to dismiss the appeal. That application was also denied.
The defendants contend that the district court should have allowed their motion to dismiss the appeal, and, in support of this contention, argue that the appeal should have been taken within ten days after the rendition of the judgment. The statute creating the city court of Atchison provides that—
“All the laws of this state relating to the powers, duties and jurisdiction of the justices of the peace, and practice, pleadings and proceedings in justice courts, which are not in conflict with the provisions of this act, shall apply to said city court and the judge thereof, and to the mode of practice therein, and to the power thereof, original, mesne, and final, so far as the same may be applicable.”- (Gen. Stat. 1915, § 3148.)
To effect an appeal from a judgment rendered by a justice of the peace, an' appeal bond must be filed in that court within ten days from the rendition of judgment. (Jus. Civ. Code, § 121, Gen. Stat. 1915, § 7824.) If such a bond is not filed within that time, and if proper obj ection is made, the district court should not try the action. (Dowell v. Caruthers, 26 Kan. 720; Struber v. Rohlfs, 36 Kan. 202, 12 Pac. 830; Bubb v. Cain, 37 Kan. 692, 16 Pac. 89; McCarthy v. Holden, 54 Kan. 313, 38 Pac. 261.)
The plaintiff argues that his appeal should not be dismissed, because the defendants waived all irregularities by participating in the motion for a new trial in the city court, by taking part in the trial in the district court, and by filing a motion for a new trial in the latter court. Section 110 of the justices’ civil code reads:
“The justice before whom a cause has been tried, on motion of the party aggrieved, at any time within five days after the decision or verdict, shall vacate the decision or verdict and grant a new trial, for the same reasons and upon the same terms and conditions as provided in the code of civil procedure in like causes; and he shall set a time for a new trial, of which the opposite party shall have at least three days’ notice.” (Gen. Stat. 1915, § 7811.)
In Kerner v. Petigo, 25 Kan. 652, this court said:
“Where a case is -tried before a justice of the peace without a jury, and .the justice renders a judgment therein, the justice has no power, five days thereafter, to entertain a motion for a new trial, and to grant the new trial.” (syl.)
Holding thp motion for a new trial under consideration for more than five days after judgment was an irregularity which might have been waived. (Scott v. Kreamer, Justice, 37 Kan. 753, 16 Pac. 123; Woodward v. Fish Co., 38 Kan. 283, 16 Pac. 456.) But the defendants, by their conduct, did not waive that irregularity, for the reason that they made timely and proper objection to the hearing of the motion in the city court, and to the jurisdiction of the district court. (Dickerson v. B. & M. R. Rld. Co., 43 Kan. 702, 23 Pac. 936; McIntosh v. Wheeler, 58 Kan. 324, 49 Pac. 77; Hartzell v. Magee, 60 Kan. 646, 57 Pac. 502; Thompson v. Greer, 62 Kan. 522, 524, 64 Pac. 48.)
The judgment is reversed, and the district court is directed to dismiss the appeal. | [
-16,
-24,
-92,
47,
-54,
-31,
-94,
-70,
65,
99,
39,
83,
-83,
-37,
12,
125,
107,
57,
117,
107,
68,
-73,
6,
65,
-14,
-13,
74,
-43,
-7,
-2,
-10,
119,
76,
50,
106,
-43,
6,
-56,
-127,
92,
-114,
-128,
-87,
-28,
-47,
40,
48,
113,
18,
27,
-47,
94,
-13,
107,
24,
-61,
-56,
45,
-54,
61,
-44,
113,
-110,
79,
127,
20,
-127,
119,
-98,
71,
80,
46,
-104,
49,
1,
-24,
114,
-10,
-122,
86,
97,
-101,
44,
102,
98,
1,
69,
-17,
-72,
-84,
111,
62,
-115,
-29,
-109,
9,
107,
44,
-74,
-39,
117,
20,
-121,
116,
-2,
-123,
25,
44,
6,
-113,
-108,
-101,
31,
58,
-80,
11,
-21,
-79,
16,
112,
-51,
-32,
92,
103,
59,
-101,
-113,
-76
]
|
The opinion of the court was delivered by
MASON, J.:
The register of deeds of Cowley county (which has from 30,000 to 35,000 population) brought an action to recover from the county the sum of $1,545.53, which he claimed to be due him under the statute fixing his compensation as such officer, for his services during the year 1917. His claim was held not to be well founded, and he appeals.
In each quarter of the year the county paid the plaintiff $500, and paid his deputy $200. It was not shown that he had any other clerical 'assistance, and the presumption is that he did not. In each quarter the fees collected exceeded $700, and the plaintiff contends that he is entitled'to be paid by the county a sum equal to one-half of such excess. The correctness of his contention depends upon the interpretation put upon the italicised words in the section of the statute reading as follows:
“The register of deeds of the several counties of the state shall receive the. following salaries per annum to be paid by the board of county com missioners of their respective counties for all services required of them, by any law of the state: Iri counties having a population of 2,000 and under, $600.00; provided, however, that in counties having a population of 2,000 or less, the county commissioners may in their discretion pay in addition to the sum of $600.00 an additional sum not to exceed $300.00 for the services of such register of deeds. In counties having a population of
Per annum
more than 2,000 and not more than 3,000................. $900.00
more than 3,000 and not more than 5,000................. 1,100.00
more than 5,000 and not more than 10,000................. 1,200.00
more than 10,000 and not more than 15,000................. 1,400.00
When the fees in any one quarter exceed $350.00, the register of deeds may retain one-half such excess fees.
more than 15,000 and not more than 20,000.................$1,500.00
more than 20,000 and not more than 25,000................. 1,600.00
more than 25,000 and not more than 30,000................. 1,800.00
more than 30,000 and not more than 35,000................. 2,000.00
more than 35,000 and not more than 45,000................. 2,200.00
more than 4^,000 and not more than 60,000.........J....... 2,400.00
more than 60,000 and not more than 70,000................. 2,800.00
more than 70,000 and not more than 90,000................. 3,000.00
The register' of deeds may be allowed for clerk hire in their respective counties: In counties having
Per annum
more than 6,000 and not more than 15,000................. $300.00
more than 15,000 and not more than 20,000...-.............. 500.00
more than 20,000 and not more than 25,000......'........... 600.00
more-than 25,000 and not more than 30,000................. 720.00
more than 30,000 and not more than 35,000................. 800.00
more than 35,000 and not more than 45,000................. 900.00
more than 45,000 and not more than 60,000................. 1,200.00
more than 60,000 and not more than 90,000................. 2,000.00
Provided, that whenever the fees collected by the register of deeds and paid over to the county treasurer for any quarter exceed the amount of salary and clerk hire paid to such register of deeds for the quarter, said register of deeds shall receive as clerk hire in addition to the clerk hire heretofore provided an amount equal to one-half of such excess; and provided, that when in counties having more than 15,000 and not more than 20,000 inhabitants the fees collected in any one quarter shall exceed the sum of $525.00; and in counties having more than 20,000 and not more than 25,000 the fees collected in any one quarter shall exceed the sum of $550.00; and in counties having more than 25,000 and not more than 30,000 the fees collected in any one quarter shall exceed the sum of $630.00; and in counties having more than 30,000 and not more than 35,000 the fees collected in any one quarter shall exceed the sum of $700.00; and in counties having more than 35,000 and less than 45,000 the fees collected in any one quarter shall exceed the sum of $775.00; and in counties having more than 45,000 and not more than 50,000 the fees collected in any one quarter shall exceed the sum of $900.00; then in any of such counties the register of deeds is hereby authorized by and with the consent of the board of county commissioners to expend as additional clerk hire so much of the money actually received by him in excess of the sums herein set forth as may be necessary to properly- transact the business of his office in such county.” (Laws 1917, ch. 193, § 1.)
The plaintiff puts stress upon the word “shall,” used unconditionally and without qualification, especially as contrasted with the expressions elsewhere found in the section which are plainly intended to lodge a discretion with the commissioners, and also upon the phrase “said register of deeds shall receive,” as indicating that the additional amount goes to him and not to an additional clerk; he argues that he is entitled to receive an additional sum equal to one-half of the fees collected in each quarter in excess of the amount paid by the county for his sálary and clerk hire, and that he is entitled to retain the money himself whether or not he employs any additional help, the county having no concern as to who does the work, so long as the records are properly kept.
The defendant puts the stress upon the phrase “as clerk hire,” especially as contrasted with ■ the clause relating to counties of not more than 15,000 population, permitting the register of deeds to “retain” one-half of the fees collected in one quarter in excess of $350; it argues that, even granting that the commissioners must necessarily appropriate to additional clerk hire one-half of the sum by which the fees collected exceed the quarterly salary and clerk hire already provided for, the county ■ can only be required to pay out the money to one who has been employed to render the needed services, and who has actually rendered them. In support- of this view the defendant invokes another statute reading as follows:
“That whenever the county commissioners -of any county in the state of Kansas shall allow any sum of money to any county officer for clerk-hire or for an assistant in his office, the said sum so allowed shall be available' for the payment of any such clerk-hire or assistance, upon itemized and verified vouchers presented by the clerk or assistant employed in such office, and such voucher shall be approved by the county officer in whose office such clerical work or assistance is performed. All payments made on account of such voucher shall be made directly to the clerk or assistant performing such services, and in no case shall any part of the moneys so allowed fey 'the county commissioners be paid to the county officer in whose office such work or assistance.is performed.” (Gen. Stat. 1915, § 2584.)
Various decisions are cited in the briefs as bearing on the question so presented, but we do not regard the statutes which they interpret as sufficiently like the one under consideration to make it desirable to review them, although a quotation from The United States v. Dickson, 40 U. S. 141, in Cloud Co. v. Ott, 99 Kan. 216, 220, 161 Pac. 629, has a tendency to sustain the view urged by the plaintiff. The language of the part of the statute the meaning of which is in dispute is quite ambiguous, but the court is of the opinion that it should be construed in the light of the evident general policy of the section taken as a whole, to grade the personal compensation of the officer, not alone by the actual labor he performs, but also by the extent of responsibility he assumes, as measured by the volume of business transacted — a policy the fairness of which is obvious. Giving weight to this purpose, the court concludes that the meaning of the italicised language is, that where the fees collected in any one quarter exceed the $500 quarterly salary of the register and the $200 allowed as clerk hire, the officer is to receive for his own benefit one-half of the excess, the phrase “as clerk hire” meaning in the nature of clerk hire, or in lieu of clerk hire, implying merely that if an additional clerk is employed he must be paid by the register. This interpretation having been placed upon the words directly in dispute, the final clause of the section supplements it by providing that while one-half of the excess fees shall in any event inure to the personal benefit of the register, the commissioners may in their discretion allow any part of the remainder which they see fit to be used for the employment of additional clerical help. ' The decision is reversed and the cause remanded with directions to render judgment for the plaintiff. | [
-14,
-18,
-16,
125,
-118,
32,
10,
-104,
88,
-127,
-90,
123,
-81,
-62,
16,
107,
-29,
25,
81,
104,
71,
-13,
23,
-21,
-78,
-77,
-21,
-59,
-67,
76,
-12,
-10,
69,
48,
10,
-43,
103,
-30,
-59,
80,
-50,
-124,
-85,
77,
-39,
64,
52,
57,
80,
75,
21,
-97,
-13,
42,
28,
67,
104,
46,
-37,
-85,
17,
-15,
-98,
-115,
95,
13,
17,
103,
-98,
-125,
-40,
-82,
-104,
61,
-128,
-23,
123,
-90,
-122,
84,
79,
-103,
44,
110,
102,
17,
-67,
-17,
-8,
-103,
14,
-6,
-99,
102,
-110,
56,
-38,
40,
-106,
-99,
126,
80,
70,
116,
-23,
4,
29,
108,
27,
-113,
-42,
-77,
-115,
110,
-104,
3,
-57,
-125,
16,
113,
-51,
-30,
93,
103,
18,
-101,
-97,
-2
]
|
The opinion of the court was delivered by
Dawson, J.:
This appeal chiefly concerns the sufficiency of the plaintiff’s evidence to establish his two causes of action against defendant — the first count being for damages sustained by plaintiff in the purchase of worthless bank stock in reliance on false and fraudulent representations of the defendant, and the second being for rescission of a contract for the purchase of land by plaintiff under duress. In the second, also, plaintiff asked for the return and cancellation of a note for $2,500 given to defendant in payment for the land purchased. To the second cause of action the defendant filed a cross petition, in which he prayed judgment for the amount of the note. -, •
A demurrer to plaintiff’s evidence in support of his first cause of action was sustained; and judgment on the plead ings and on plaintiff’s evidence was rendered for defendant on the second cause of action.
The errors assigned relate to these rulings.
Touching the first cause of action, the evidence for plaintiff tended to prove the following facts:
In July, 1913, the plaintiff, who had been chiefly engaged in school work for thirty years, sought to change his vocation and engage in the banking business. To that end, he called on a Denver broker, A. J. Smith,' who informed him that a controlling interest in the People’s Home Bank of Rocky Ford, Colo., was fpr sale by its owner, the defendant, George M. Coffman, who- was the founder, president, director, and principal managing officer of that bank. Plaintiff went to Rocky Ford and interviewed Coffman, and the latter discussed the bank’s condition, its earnings, and the price of the bank stock, and Coffman gave his failing health and that of his wife as his reason for selling. ' Bushey, the plaintiff, returned to Kansas, and shortly afterwards he opened a correspondence with Coffman with a view of purchasing Coffman’s bank stock. On August 5, 1913, the defendant Coffman wrote to Bushey:
“Yours at hand, and I want to say that I think you are needlessly alarmed about my notes, I never saw a bank that had $140,000.00 or $150,000.00 worth of notes, that some of them were not at least doubtful. I don’t believe we have over $500.00 worth, but that are good, and if handled properly can be collected and yet it might be more than that amount would prove bad, but that is all in the game. Our gross earnings this year will be $15,000.00 or more, that means that after all expenses are paid together with 10% dividend, we will have over three thousand dollars to take care of bad paper or to carry to undivided profits. I figure that we can pay all expenses which includes $5,000.00 a year salary, 10% dividends, carry $1,000.00 a year to surplus, and then have $2,000.00 left, either to take care of bad paper or to carry to undivided profits. That is the kind of a business I have. The book value is better than $125.00. I could sell all my stock to local parties inside of six months in small lots at $130.00. If I should sell to you at $150.00 and pay Smith of Denver $5.00 a share that would leave me about $2,000.00 profit for building up this business, and then you want me to guarantee all notes. I could not think of it for a minute. If you should come here as you suggest, some one would start the rumor that I was trying to sell and then if you should decide not to buy, they would say that there was something wrong with the bank. No, Mr. Bushey, you have every chance to find out whether I am a man of my word, and when I tell you we have a good business, that we have a good class of notes, you will have to take my word for it, or not. Since you was here, we -collected $810.00 charged off paper, and carried that to undivided profits. We have two or three hundred that are more than six months past due, that we are charging off. Some of them we hope to have paid before the end of the year. ,If you want a good business in a good town, you could afford to charge off $1,000.00 a year bad paper, and then have a splendid business. Of course I don’t think there is any danger of any such loss, but if there was you would be away ahead of the game.”
Other excerpts of letters from Coffman to Bushey read:
“Aug. 16th; 1913.
“Yours of the 14th inst. at hand, and in reply would say you would have to take one hundred fifty-eight shares (158) ... Of course if I remained as President I could not give possession of house while I remained as President, as that would give away the deal. The boys and I would stay with you until you had a chance to get acquainted, and the run of the business. Of course while we remained, we would expect same salary we are drawing now. ... I would have no objection to have Mr. Smith of Denver meet you here on the Sunday you come, if Mr. Smith is careful not to let these other bankers get on to the reason of him being here. You see we are crowding the other banks very close on the business, and they are very jealous, and would seize on anything to stop our growth. In fact, if you or Mr. Smith let this out, I will deny the whole thing and it will be all off. ... I enclose statements of the three banks. You will notice we have $10,000.00' more deposits than the First; and only $20,000.00 behind the Rocky Ford National, so we can’t afford to take any chances. Things are looking so good that I am sorry I ever made this offer, and I will be very thankful if you decide not to take it, but my word is passed, and I always make good.”
“Aug. 23rd, 1913. . . .
“You are certainly a suspicious man. I am willing to be perfectly fair with you, and if you come here again, and really desire a good business, I am satisfied you will find that I will treat you fairly and will advise you honestly, what I think the best way to handle the business, so as not to lose any of the business that I have worked so hard to get. Of course you can put this off as long as you see fit, but I will not consider myself under obligation to hold the business for you. Other parties want it, but frankly, I am not at all anxious to sell. I think I am making a mistake in selling at price I have made you.”
“8-27, 1913. . . .
“Yours just received and will say a bank is like a woman, the least breath of suspicion sometimes ruins the reputation, so be careful that you don’t mention the name of our bank when you consult with your friends. I tried to impress this on your mind when you were here.”
The evidence for plaintiff tended to> show that on the faith of these written representations of Coffman, and further oral representations to the same general effect made by him prior to the writing of these letters and afterwards, Bushey pur chased from Coffman 158 shares of stock in the bank for the sum of $23,700, at the rate of $150 per share, par value being $100 per share; that Bushey paid cash for 151 shares, and Coffman retained the remaining 7 shares temporarily, it being part of the deal that Coffman’ should remain as president and director and that Coffman’s two sons should remain as employees of the bank until Bushey had familiarized himself with the bank’s busness and with the local situation. , One of the inducements of Bushey’s purchase was the promise of Coffman to teach Bushey and Bushey’s son “all about the banking business. ... I will see that you make good . . . and we’ll stay with you,as long as it is necessary.”
The sale of the stock was made to Bushey early in September, 1913, and thereupon he was elected vice-president and commenced work in the bank. In January, 1914, Coffman retired as president and Bushey assumed its management. Ere then, however, and ydiile he was serving as vice-president he learned that Coffman’s pretensions as to the bank’s condition were partly untrue, but pot until after Coffman had retired did he fully learn how grossly the bank’s condition had been misrepresented to him. Bushey served as president from January, 1914, until January, 1915, and during that time he discovered that many loans of the bank were merely repeated renewals of older loans, sometimes with and sometimes without the earned interest added to such renewals, and that-the makers of these notes would not or could not pay, that many of the makers were of poor financial rating or unworthy of credit, and some were insolvent. In September, 1914, Bushey sold his interest in the bank at a nominally high figure, but in such sale he was required to guarantee his proportionate share of. the bank loans based upon the ratio of his stock ownership to that of the bank’s entire capital; and some time later, in January, 1915, the bank commissioner of Colorado required these worthless loans, aggregating about $45,000, to be charged off from the bank’s resources, which completely extinguished the bank’s total capital of $30,000, and created an additional shortage; and the stockholders were given but a few hours to assess and collect from among themselves $140 per share as a condition of permission to keep the bank open and to avert or postpone its dissolution for insolvency.
Plaintiff’s evidence is somewhat obscure as to whether he realized anything whatsoever by the sale of his stock in September, 1914, his counsel’s interpretation of his evidence on that point being that he received nothing, while counsel for' defendant say that Bushey realized something out of the nominally high figuré specified in his contract for the sale of it. However that may be, the evidence for Bushey, read in the favorable and auspicious light with which such evidence must always be viewed when tested by demurrer (The State, ex rel., v. Gerhards, 99 Kan. 462, 464, 162'Pac. 1149), tended to show that he was completely and thoroughly swindled by the defendant; that defendant grossly, inexcusably, and falsely represented to Bushey that the bank was in a flourishing condition, that its business was prosperous and desirable, when the facts were sadly to the contrary — with all of which Coffman was thoroughly familiar — ; that Bushey relied upon Coffman’s statements in purchasing the bank stock; that one of the conditions imposed by Coffman surrounding the transaction of purchase and sale was that Bushey was not to make an independent and effective inquiry among those who might know or be expected to know the true condition of the bank and its business, but that he should rely upon Coffman’s word of honor. (12 R. C. L. 375.) “You will have to take my word for it,” wrote Coffman; and again he wrote, “If you or Mr. Smith, let this out, I will deny the whole thing and it will be all off.” (Greisa v. Thomas, 99 Kan. 335, syl. ¶ 5, and pp. 340, 341, 161 Pac. 670.)
It does not seem necessary to set out the facts as developed by the evidence at greater length. The falsity of Coffman’s representations inducing the sale and Bushey’s reliance thereon were shown; Coffman’s familiarity with the bank’s condition was shown; the utter worthlessness of the bank stock was shown; the total loss of the consideration paid for the stock was shown; and the consequent damage to Bushey- was established. (12 R. C. L. 433.) No waiver was pleaded, and it may be d'oubted if any estoppel was developed in the cross-examination of plaintiff’s witnesses. Certainly there was none under the scrutiny of a mere-demurrer to the evidence. This is not saying that a jury would necessarily arrive at the conclusion that Bushey had committed no acts of estoppel. A court, how ever, has no such privilege in ruling on a demurrer to the evidence. We do not overlook the fact that Coffman did not guarantee the bank’s notes, that he declined to insure their payment. That does not release him in the slightest degree from the obligation which the law imposes upon him in favor of the person who purchased his bank stock in reliance upon the truthfulness of his representations concerning it. If Coffman consummated the deal on the theory that the law would excuse his fraudulent representations because of his literal declination to guarantee the bank’s notes — and his correspondence is susceptible of that interpretation — his artifice and duplicity are the more reprehensible and his deliberate purpose to deceive and to defraud Bushey becomes only the more clear. (Hindman v. First Nat. Bank, 50 C. C. A. 623, 112 Fed. 931; Boles v. Merrill, 173 Mass. 491; Handy v. Waldron, 18 R. I. 567; 1 Benjamin on Sales, 555 et seq.; 20 Cyc. 13, 14; 2 Mechem on Sales, § 36. See, also, article on Fraud and Deceit in 12 R. C. L. 248, 294, 303, 310, 319, 323, 324, 380, 409.)
Neither did Bushey waive or condone the fraud practiced upon him, by paying for the seven remaining bank shares of Coffman. He was then altogether too deeply enmeshed in the matter to rescind and repudiate. His contract with Coffman was then partly executed, and that rendered it impracticable for him to rescind. His only practical redress was to pursue the course already undertaken by him, and to look to Coffman later for damages when their extent could be accurately ascertained. (Van Natta v. Snyder, 98 Kan. 102, 157 Pac. 432; Geiger v. Cardwell, 99 Kan. 559, 163 Pac. 613; McKenna v. Morgan, 102 Kan. 478, 480, 170 Pac. 998.) The case of Mathews v. Hogueland, 98 Kan. 342, 157 Pac. 1179, cited by appellee, related to a sale of bank stock without either knowledge or intent to defraud and is altogether inapplicable to the present case.
Touching the second cause of action, there could be no judgment for defendant on the pleadings, for the plaintiff’s petition had raised an issue of illegality — duress—and defendant’s answer traversed the pertinent facts relating thereto. The addition of the matter pleaded by defendant as a cross petition did not require a denial by defendant under oath, since the want of such verification confessed nothing but what plaintiff’s pleadings had already conceded — the execution and delivery of the note — and the illegality involved in the question of duress remained in issue. (Hill v. Republic County, 99 Kan. 49, 51, 160 Pac. 987.) As to the evidence of duress, it was fairly established, if a jury cared to believe it — and on demurrer the trial court was bound to treat it as true — that associated with the bank-stock bargain and negotiated about the same time, the parties agreed to exchange some Colorado land of defendant for some Missouri land of plaintiff; but in December, 1913, about the time plaintiff began to learn of the bank’s infirmities, Coffman threatened to leave the bank and take his sons with him,^unless plaintiff would purchase the Colorado land outright, ignoring the prior bargain of the parties for the exchange of the lands. Coffman said:
“Now, Mr. Bushey, you have had your way about this land deal, now I will have mine. ... I will make you ,a price of $2,500 and I will take your note for two years but you will return that $150 to my credit and take this land and make me out á note or me and my boys walk out of here and never be back in your bank and your bank is bust.”
Bushey testified:
“I says, why, Mr. Coffman, you and your boys agreed to stay here as long as I wanted. He says, ‘that was on the condition that everything was agreeable,’ and I was scared and I turned around and walked out of the bank. I was excited.”
While the cross-examination of Bushey slightly tended to develop his later acquiescence in this enforced bargain by his payments of the semiannual interest on the note, etc., yet from the precarious situation of the larger related transaction — the swindling of Bushey in the bank-stock deal, the impending insolvency of the bank, the threats of Coffman and his power to precipitate the collapse of the bank — there was ample evidence,. if believed by a jury, to prove that the coercion of Bushey and the duress imposed upon him by Coffman continued throughout the period covered by the interest payments on the note given for the Colorado land. It would amplify this opinion far beyond all reasonable limits to cover other minor incidents developed by the cross-examination of plaintiff’s witnesses. The court has perused the voluminous abstracts with laborious care, and neitjier therein nor in the able brief of defendant’s counsel can we discern the propriety of taking the second cause of action from the jury. The most that can be said for the argument presented by defendant’s counsel is that it will be good debatable matter for a jury’s consideration.
Other matters urged by plaintiff require little discussion. One of these we note. The opinion evidence of Rocky Ford bankers and other local business men touching the financial standing of the makers of the notes,. the worthlessness of which exhausted the bank capital and rendered valueless the stock sold to Bushey, was excluded. This evidence was competent. Bankers who have long been engaged in their line of business ought to know, and usually do know, the financial standing of the average citizen of their community who may seek or need credit at a local bank; they know or ought to know his ability to meet his obligations and his disposition to do so. They become experts in their line, just as lawyers and doctors and other especially skilled persons do in theirs. (3 Wigmore on Evidence, §§ 1917-1923.) The competency of the testimony of the Rocky Ford bankers and business men could readily have been determined by applying the ordinary work-a-day rule: Can the jury get any appreciable help from these witnesses touching the financial standing, trustworthiness and responsibility of the makers of these notes? (3 Wigmore on Evidence, § 1923; and see, also, Railway Co. v. Utilities Commission, ante, p. 111, 172 Pac. 1022.) Since evidence touching .a person’s reputation for truth, sobriety, industry, and his reputed standing for citizenship and morality is ordinarily competent and admissible, such evidence ought logically to be admissible to show his reliability and promptness in paying his debts and his ability to do so. (Abbott’s Proof of Facts, 3d ed., 336.) Such testimony may be greatly discounted by cross-examination, but that would only depreciate its evidentiary value and would not affect its competency.
The judgment is reversed and the cause remanded for a new ■trial. | [
-14,
106,
-80,
-114,
26,
-32,
40,
-70,
97,
-95,
39,
83,
-23,
-61,
20,
101,
-10,
61,
81,
106,
-58,
-77,
22,
-54,
-46,
-13,
-15,
-43,
-79,
93,
-28,
-44,
76,
32,
-54,
85,
102,
-64,
-63,
-100,
-50,
4,
-72,
-52,
-33,
96,
48,
123,
112,
67,
49,
-50,
-13,
42,
24,
-50,
105,
44,
-21,
-72,
-16,
-15,
-85,
77,
109,
18,
33,
36,
-100,
71,
-48,
46,
-112,
-79,
1,
-23,
114,
-74,
-58,
-12,
97,
-87,
8,
98,
102,
19,
85,
-17,
58,
-120,
46,
121,
-97,
-90,
-74,
88,
1,
105,
-98,
-103,
-3,
16,
3,
-2,
-4,
13,
24,
108,
3,
-117,
-106,
-77,
-113,
62,
-101,
19,
-1,
11,
52,
112,
-113,
-30,
92,
69,
90,
-109,
-114,
-108
]
|
The opinion of the court was delivered by
Dawson, J.:
This was an action for the purchase price of two automatic boiler cleaners which the plaintiff had sold to' the defendant subject to a trial test of sixty days. The written contract and terms of sale provided—
“The Acme Iron Company has hereby sold and agrees to ship to Henneberry & C'o., of Arkansas City, Kansas, No. 2 No. 10 Automatic Steam Boiler Cleaner on a trial test of 60 days. The Acme Iron Company agreeing to ship and attach, or have same attached as promptly as possible to said purchasers boilers, and if satisfactory at the expiration of sixty days said purchaser agrees to pay said Acme Iron Company the sum of $320.00 and to honor and pay demand or sight draft for same 60 days from date of attachment. If not satisfactory the said purchaser shall notify said Acme Iron Company, in writing, and if same cannot be made satisfactory, shall deliver said cleaner and each and every part of same, properly crated or packed for shipment, to the freight depot and notify The Acme Iron Company, that same is subject to its order, otherwise this agreement shall become payable in accordance with its terms.”
On September 28, 1914, the defendant wrote to the plaintiff as follows:
“This is to advise you that Mr. Newcomb has completed the installation. of two of the Acme 2 of the Acme Automatic Steam Boiler Cleaners, size Nos. 10s on our plant to-day, on a 60 day trial test, and all piping and fittings are apparently connected in a satisfactory manner.”
One of the defenses pleaded was that on November 28, 1914, the defendant notified the plaintiff by letter that the boiler cleaners were not satisfactory. The letter reads:
“The Acme Iron Co.,
“366 LaFayette Avenue,
“Kansas City, Kans.
“Referring to your letter of the 27th, Mr. Henneberry instructed me before he went east, to request an extension of time on the equipment put on our boilers by your company.
• “He told me to ask for another sixty days on account of certain conditions in the boiler room which did not enable us to get proper tests on the first sixty days.”
On the preceding day, November 27, the plaintiff had addressed a letter to the defendant reminding the latter that payment was due that day (it was not due until next day, the 28th), and asking defendant to remit payment. This letter added—
“Our Mr. Newcomb will probably be in Arkansas City 'about the 28 and should you see him and prefer to hand him a check to cover the amount, it will be satisfactory with us and he will receipt for same.”
About November 29, Newcomb called on defendant and presented plaintiff’s bill (which was' after the sixty days’ trial period had expired), and defendant’s secretary and treasurer told him—
“A. I told him that if we did n’t get an extension of time to test them further the cleaners were condemned.
“Q. What did he say then? A. He stayed around there a while then went to the boiler room but he did n’t come back to see me any more.”
Later, further correspondence passed between the parties showing the divergence of their views touching the defendant’s liability, its claim of right to further time to test the cleaners and its determination to renounce and repudiate the contract unless further time was given, and the plaintiff’s insistence upon the literal terms of the original contract with offers of additional time for payment. But the issue between the parties properly turned on the main facts above quoted.
Defendant prevailed below, arid plaintiff appeals, the gist of the errors assigned being a complaint as to the net result.
It will be observed that the contract provided, subject to qualifications therein incorporated, that the period for the trial test was sixty days, and the contract also provided that the defendant would honor a draft for the purchase price “60 days from date of attachment.” Since the attachment of the cleaners was completed on September 28, the plaintiff was entitled to draw a sight draft on defendant on November 28; in other words, payment was due on the latter date. Analyzing the qualifications of the contract, such payment was to be made in sixty days if the cleaners were satisfactory. If they were not satisfactory, defendant was to notify plaintiff in writing; and, by implication, plaintiff was to have an opportunity to make them satisfactory. Within what time should written notice of dissatisfaction be given? Certainly before the time when defendant’s sixty days’ obligation would become absolute. This is the fair interpretation of the contract. It will not do to say that the notice of dissatisfaction was not due until sixty days plus a reasonable time thereafter. Unless the plaintiff had written notice of dissatisfaction before the time when it was entitled to draw its sight draft, the qualifications in the terms of the contract should go out of the case, and the defendant’s obligation would become absolute.
But observe the written notice of dissatisfaction upon which defendant relies. It was a request for further time because of “conditions in the boiler room.” This letter gives no intimation of dissatisfaction with the cleaners furnished by plaintiff. Moreover, the obligation to pay was absolute when that letter was written, for the time of the trial test had then expired.
An attempt was made in the trial court to show that Mr. Newcomb, the plaintiff’s special agent authorized to receive payment for the cleaners, had granted an oral extension of time to test the machinery. The evidence to support that contention, in substance, is quoted above. Even if Newcomb had been authorized to make such extension (and evidence of that authority was wanting), the evidence quoted does not warrant the interpretation of a grant of extended time. Furthermore, the course followed by defendant after the visit of Newcomb was inconsistent with the terms of any extension-agreement, for, had such agreement been made, the defendant would have continued to be bound to notify the plaintiff of defect or dissatisfaction in the cleaners and to give plaintiff a fair opportunity to remedy any defects. Instead of this, however, after an argumentative' correspondence with plaintiff, defendant summarily removed first one of the cleaners and then the other. If it could be said that there was an agreement for an extension of time to test the cleaners, and if the questions be waived as to who made such agreement and upon what consideration it was made, yet even that suppositive agreement was breached by the defendant by its failure to give written notice and failure to give plaintiff an opportunity to remedy defects and make the machinery satisfactory.- Viewed from any aspect of this case, no sufficient defense to plaintiff’s cause of action was established; the defendant is irrevocably bound by its contract,, and as all the material and controlling facts are established, the judgment must be reversed and judgment for .plaintiff directed.
It is so ordered. | [
-14,
104,
-72,
-51,
24,
96,
56,
-101,
70,
-96,
39,
83,
-19,
71,
17,
121,
95,
125,
80,
105,
-60,
-77,
1,
106,
-46,
-13,
-15,
-39,
57,
93,
-12,
94,
76,
36,
-54,
-107,
-94,
-64,
65,
28,
-54,
0,
-87,
-32,
-45,
66,
52,
-7,
112,
74,
1,
6,
-13,
46,
25,
-49,
104,
56,
-21,
56,
-48,
-7,
-94,
-115,
45,
22,
32,
36,
-108,
71,
-56,
14,
-104,
21,
9,
-24,
113,
-90,
-58,
-12,
39,
-85,
8,
102,
99,
35,
-111,
111,
-8,
-56,
39,
-2,
-115,
-90,
-80,
88,
-93,
45,
-66,
-99,
32,
18,
-89,
-2,
-5,
21,
24,
108,
2,
-125,
-92,
-61,
15,
118,
-104,
13,
-17,
-89,
32,
117,
-116,
-80,
92,
7,
63,
-109,
-98,
-72
]
|
The opinion of the court was delivered by
West, J.:
This is an appeal from a conviction of murder in the first degree, upon the charge of having administered carbolic acid to one Agnes Smith. The defendant is a colored physician about 33 years of age, who since a boy of 13 has much of the time been in the employ of Asa Smith, who helped him in securing a general and a medical education. The defendant used Mr. Smith’s horse and buggy in making his professional calls. For many years before the homicide he called at the Smith place nearly every morning and fed the horse, after which he would make his calls and return with the rig from 10 to 11 o’clock in the forenoon. Agnes Hammack had lived with the first Mrs. Smith a short time before the death of the latter. Mr. Smith had partially educated Agnes, and she became his second wife in 1916, being about 24 years old when she died. About 11 o’clock in the forenoon of May 16, 1917, the defendant was seen by several witnesses riding in the Smith buggy in the alley driving towards the barn, between 11 and 12 o’clock he came to the home of Mrs. Lulu Smith, where he remained for dinner, and, after stating that he did not feel well, lay down and went to sleep and slept until about five o’clock. The defendant himself testified that on the morning in question he was at the Asa Smith home about 8 o’clock, that he went in the short way and around the house and spoke to Mrs. Smith when at the barn, and fed the horse, harnessed him and, when he finished eating, hitched up and made some calls; that later he returned the horse and put him up, and started to his mother’s to tell her he would not be to dinner, went to his office and then down to Mrs. Lulu Smith’s; that he left Asa Smith’s between 10:30 and 11; that after he had dinner he did not feel well and lay down and went to sleep, having been a frequent visitor at the Lulu Smith place for years; that after supper he started for his office and heard that men were hunting for him and accused him of being the cause of Mrs. Smith’s condition, and, being afraid of a mob, he returned to Lulu Smith’s and stayed all night.
Mrs. Neighbors, who lived next door to the Asa Smith place, testified that about 11:30 in the morning she heard screams from Mrs. Smith; that shortly thereafter she went to her door and, finding her there, asked her if it was gas, and Mrs. Smith said “No, no”; that she and Mrs. Dixon assisted in carrying her into the house; and that she called for Mr. Athy, and they all carried Mrs. Smith into Mrs. Neighbor’s house and laid her on a couch, and then called Dr. Albert Smith and Dr. Board-man.
Mrs. Williams testified that she lived with Mrs. Neighbors, and that she heard screams about 11:30 from the Smith home and heard Mrs. Smith say, “Oh, Mrs. Neighbors, oh, Mrs. Neighbors.”
Agnes Smith was found to be burned with carbolic acid. Dr. Boardman testified that—
“'•The odor was very strong. The acid wai up in her hair, over her face, and down on her upper chest. The acid was upon her cheeks, around on the hack of her neck and around her ears. Her eyes were entirely burned. One had turned entirely white. . . . she was unconscious.”
The testimony showed that from carbolic poisoning she died May 24. An empty bottle was found on the dining-room floor, wrapped in some kind of wrapping paper, which smelled of carbolic acid. It had no label on it. The stopper was found in the front room near the door. On May 19 the defendant, who was then in jail at Columbus, was examined and found to have spots on his hands that were rougher than the general skin. There were marks, discolorations on both hands, spots that were rougher than the- general skin. One physician testified that he asked the defendant where he got the burns, and, as the witness remembered, he said he did not know. There was also medical testimony indicating that in the opinion of the physicians certain marks on the throat of Mrs. Smith were not caused by acid, but by pressure. On May 17, having been informed by Dr. Boardman that she could not live, Mrs. Smith made a dying statement, of which the following portion was . admitted in evidence:
“Parsons, Kansas. At Asa Smith’s home. May 17, 1917. I know that I am about to die and this is my statement in the fear of death. Bob Smith came in at about 11 o’clock a. m., May 16th, and says why don’t you treat me better — why have you got it in for me? I picked up some scissors, off the table, and he started for me and he took them away, from me and seized me by the throat and choked me and threw me .on the floor. He choked me and poured something in my mouth and face and ran out, and I got up and got to Mrs. Neighbors’ and lost consciousness. her
Agnes x Smith mark.”
A sister and the mother of the defendant testified that, some two months after the arrest, the -sister went to his office in Parsons for the purpose of removing his goods, and discovered a small bottle with some carbolic acid in it, which she took to her mother, who had asked for some disinfectant, the mother ■testifying that she used it for that purpose. The1 defendant ■testified that he had occasion to use carbolic acid on the 15th of May, and sent his office boy for it on that day, and then went down and got it himself and used some of it on two patients, and set the bottle on a little table in the corner. Two 'witnesses searched tiñe office of the defendant on the day of the tragedy and testified that they found no such bottle as that exhibited by the defendant, one of them testifying that such bottle was not in the office on that day. In respect to the spots on his hands the defendant testified that, he had used iodine in treating patients, and described the spots which iodine would cause. The defendant not only denied all guilt and all motive therefor, but brought numerous witnesses to testify as to his high standing as a peaceable, law-abiding citizen. He testi fled as to the poor health, nervous condition, and suicidal tendency of Agnes Smith, of frequent curses and abuses heaped upon her by her husband, and of his repeated assurances to her that he did not love her; that Mr. Smith had told him he could not have any peace at home and was afraid his wife would kill him when he was asleep; that during the past winter he brought his gun to the barn and hid it, telling the witness that the night before he found his wife standing over him with it; that on another occasion Mr. Smith called him and told him his wife had attempted to commit suicide with chloroform, and wanted to know what to do; that another time she attempted suicide, and Smith told him to be careful, that his wife' was liable to injure either him or the defendant; that his relations with Mrs. Smith had always been of the best until Mr. Smith began poisoning her mind against him, by telling her he thought more of the defendant than of her; that on the morning of May 16, 1917, Mrs. Smith asked her husband to kiss her goodbye, which he refused to do, responding with curses. He testified that on one occasion Jack Connors went to the Smith house with him, Mrs. Smith having asked the witness to tell Connors that she wanted'to see him; that on Smith’s return from Oswego that day he asked the witness if any one had been at the house and was told that Jack Connors had been there; that some weeks afterwards Mrs. Smith called him to the house and asked him to tell Mr. Smith that she had not asked for Connors to come to the house, which he refused to ■ do; that when she asked her husband if he would take the defendant’s word before hers he said he would, and that he thought more of him than he ever would of her. One witness testified to some remark made by the defendant as to why Smith did not get a divorce from his wife. Asa Smith denied having told the defendant that he found his wife standing over him with a revolver or that he hid the knives and revolver to prevent his wife from using them, and denied having told her some of the things testified to by the defendant. A witness for the state testified that on the morning of the 16th, when Mr. Smith left, his wife walked out to a little flower bed and spoke to Mr. Smith, who looked around, and she said good-bye and waved at him. A neighbor testified to a conversation with Mrs. Smith over the telephone, just before the tragedy, in which -Mrs., Smith appeared very cheerful and was joking. There was also testimony indicating that Mr. Smith, who took 'a short journey on the 16th, found in his grip a note from his wife, accompanying a necktie she had made, expressing her love and eongratu-' lations upon his sixtieth birthday.
The defendant assigns numerous errors touching the instructions, the reception and rejection of evidence, and the overruling of challenges to certain jurors.
Complaint is made that the court overruled challenges for cause to jurors Dean and Roller. Each of these jurors, after having been examined by the parties, told the court in substance that he knew nothing concerning the facts of the case, and that his mind was in such condition that he could sit and try the case as fairly and impartially as though he had heard nothing about it. In The State v. Stewart, 85 Kan. 404, 116 Pac. 489, it wp.s held that if upon the evidence the trial court decides that the juror is free from bias, prejudice, or interest, and has not a disqualifying opinion, its decision will not ‘be disturbed on appeal unless disqualification appears as a matter of law, or an abuse of discretion is disclosed. A similar rule was announced in The State v. Pearce, 87 Kan. 457, 124 Pac. 814; The State v. Molz, 91 Kan. 901, 139 Pac. 376; The State v. Compton, 94 Kan. 642, 146 Pac. 1161; The State v. Mullins, 95 Kan. 280, 291, 147 Pac. 828. The case falls within this rule.
Another juror stated that he had heard that Agnes Smith had made a dying statement. He was then asked whether he had an opinion that when making the statement she believed she would not recover. An objection to this question was sustained. The only possible competent question would have been as to whether he had an opinion on the subject, and not to state what his opinion was. Appellant’s abstract states that the juror would have answered the question by stating that he did have an opinion on that question. The juror testified that he was not acquainted with Agnes Smith in her lifetime and knew, of no reason why he could not be a fair and impartial j uror; did not entertain an opinion that1 she had been assaulted; and did not remember having talked with anybody about the crime. Under the circumstances shown, it was not material error to sustain the objection to the question propounded.
The defendant, while on the stand, was asked on cross-examination whether or not in May, 1916, he had called Asa Smith to Muskogee, and, over objection, answered that he had. He was then asked whether he then stated to Asa Smith that he was the father of the unborn child of the Jackson girl at Parsons, to which he replied, “I certainly did not.” Asa Smith was called in rebuttal and testified that at the time and place in question he did make such statement. This is complained of as material error. The general rule is that one on trial for a given offense cannot be proved guilty of other and different offenses, and that, while the defendant may be thoroughly cross-examined as to his former conduct, the state is bound by his answers on collateral matters and cannot offer evidence in rebuttal. The general reason for the latter rule is that otherwise all manner of outside issues would enter, and the main controversy might become confused and confounded with various other questions, to the distraction of the jury and the delay of justice. It is urged, however, that as the defendant had placed his own character for a peaceable and law-abiding citizen in issue and introduced numerous witnesses in support of his reputation as such that it was proper for the state to show by way of rebuttal that he made the admission testified to by Mr. Smith. In The State, ex rel., v. Stout, 101 Kan. 600, 168 Pac. 853, the defendant in a bastardy proceeding was asked on cross-examination if he had been guilty of improper conduct with a young girl other that the relatrix, and he denied that he had. It was held to be purely collateral, by which the state was bound, and it was decided that it was reversible error to permit the state to contradict this denial by evidence of another and distinct offense. In the opinion it was said:
“The evidence was offered for the purpose of impeaching his testimony. ... A belated attempt is made in the briefs to excuse the admission of this testimony on the ground that it rebutted the evidence of good character offered by the defendant; and further, that it was admissible to rebut statements made by his counsel in the opening statement to the effect that the defendant did not associate much with girls, was not given to running around with them, but was a good, quiet, clean boy.” (p. 605.)
In concluding the discussion it was said:
“Besides, being a collateral matter, the prosecution was bound by defendant’s answer.” (p. 606.)
Evidence of general good reputation is not to be rebutted by-testimony of specific instances of misconduct. (The State v. Frederickson, 81 Kan. 854, 106 Pac. 1061.) It was error, therefore, to receive the testimony, but considering the nature of the offense for which the defendant was on trial, the fine reputation accorded him by his character witnesses, and the remoteness of the one remark at Muskogee, the error does not impress the court as one of sufficient importance to constitute material prejudice requiring a reversal.
It is urged that the note found in the grip of Mr. Smith on his return was improperly received in evidence, but one theory of the defense was that the deceased committed suicide, and, in view of this and of the abuse on the part of the husband testified to by the defendant on the'morning of the tragedy, this note, together with the testimony of the witness who claimed that the wife waved the husband good-bye, and of the neighbor who told of her cheerful conversation over the telephone a few minutes before the tragedy, was competent as touching Agnes Smith’s state of mind.
Mrs. Neighbors, who testified that the screams seemed to come all from the same place, was asked if on the preliminary examination she had not testified that they did not sound as if they came all from the same place, to which she replied that she did not know what she said at that time. The question was then read from the record, and she was asked if she did not answer as there shown, and an objection to the question was sustained, of which complaint is made. The witness might well have been permitted to answer, but it is impossible to see how the refusal worked any prejudicial error to the defendant. She had already testified that she did not know what she said on the preliminary, and even if at that time she had stated that the screams did not seem to come from one place, and even if such had been the fact, there can be no doubt from whom they came, and the immediate place does not appear to be of material importance. Neither would the discrepancy, if shown, have sufficiently tended to impeach or impair the credibility of the witness to be of material significance.
Dr. Albert Smith was asked the nature of Agnes Smith’s ailments at different times when he called upon and treated her, but was not permitted to answer. The defendant complains of this as a deprivation of his right to show her highly nervous and hysterical condition naturally tending toward suicide. When the defendant was on the stand he was permitted to go into this matter, and, had he desired the testimony of Dr. Smith on this point, he might have introduced him as his own witness. It was not error to sustain an objection to .going into this matter on cross-examination of the state’s witness.
The testimony of those who examined the defendant’s arms in the jail is complained of, but we think'it was competent for whatever the jury may have properly deemed it worth after listening to the defendant’s own version of the matter, and there was no error in its reception.
Certain instructions touching the dying .declaration of the deceased were refused, but we have examined those given and have found them to be entirely fair to the defendant and in accord with the law, hence, no error in this respect was committed.
Neither do we find any error touching the admission of evidence as to finding a carbolic-acid bottle, nor in permitting certain witnesses to testify whose names were not spelled exactly right on the back of the information, nor in sustaining objections by the state to questions asked Asa Smith as to various matters touching his relations and correspondence with his second wife before their marriage.
Complaint is made that John J. Connors was permitted to testify, on rebuttal, to a conversation had with Agnes Smith at the time the defendant invited him to call at the house. Very little of this testimony was permitted by the court, as the record shows, and, in view of the defendant’s own testimony, no error as to him was committed in respect thereto.
Mrs. Walcott was permitted, in rebuttal, to tell of a conversation of Agnes Smith touching the visit of Jack Connors, and that the trouble over that matter had been adjusted. Mr. Smith, when on the stand, testified to the same adjustment, apparently without objection, and, while the testimony of Mrs. Walcott as to the conversation with Agnes Smith was not competent, it does not appear to have materially prejudiced the defendant. In fact, it is substantially admitted in his brief that a number of these matters were hardly material.
This leaves the one remaining question as to the competency of the dying declaration and the testimony pertaining thereto.
The defendant claims that the dying declaration was admitted improperly, because not shown to have been made under actual fear of impending death, and, also, that after its admission numerous witnesses were permitted to testify to the statements therein contained, and also to other statements which were incompetent. ' It' being impossible to understand the situation from the abstracts, the transcript was sent for, and there it appears that the jury were excused for the purpose of allowing the court to pass upon the statement before testimony in regard to it was offered. The court examined the written statement and underscored certain words to be excluded therefrom, admitting the remainder as already set forth. The jury'being recalled, Dr. Boardman testified, among other things, that he was at the Asa Smith home on the afternoon of the 17th with a number of others; that Agnes Smith said she felt that she could not get well and was going to die; and that the' written statement contained substantially what she. said. His attention being called to the portions stricken out by the court, he then recited substantially the remainder; he stated that after she made the statement he wrote it down the best he could from memory and read it to her; that she corrected one little statement and then signed it, that is he wrote her name and she touched the pen and made a cross. From the statement as written and signed the court excluded the following:
“All I told Mr. C. E. Pilé and Mrs. Billbruck, Mrs. Walcott and Dr. Smith and Mrs. Kersey and E. W. Boardman yesterday was true. . . . 1 told him to get out of the house and ... I feared he would rape me.”
On cross-examination he stated that he wrote the paper in the other room; that before that he had asked her if she thought she was going to get well, and explained to her that it would be necessary to have a statement in order to present the matter to the court, and that it was necessary that it should be a dying statement; that hé possibly told her it would be necessary to put in the statement that she was about to die; and that on two or three different occasions before and after this she had said she was going to get well, in which he encouraged her as a means for her benefit.
Doctor Smith testified that after the statement was made and signed it was signed by those present. He then testified substantially to the language contained in the statement; that Doctor Boardman had told him he was going to get a statement of Mrs. Smith, and then Mr. Pile had said it was necessary to have the dying statement say that she was about to die, and that it was necessary to have her dying statement; he was not sure that he said it was necessary to have the dying statement say that she thought she was about to die. Doctor Boardman came in from somewhere and wrote the statement, arid Doctor Boardman. said to Agnes Smith that she realized she was in a serious condition and was about to die, and he would like a statement from her. A few miriutes before that Doctor Boardman had told, him that he thought she was going to die and it was necessary to get a statement; that Agnes Smith apparently got better after this, up to forty-eight hours before her death, and stated that she was going to get well, and that the witness made similar statements for the purpose of encouraging her. •
Mrs. Walcott testified that just before the statement was made the doctor said it was impossible for Mrs. Smith to live. Witness then- detailed the statement made by Mrs. Smith, including one to the effect that the defendant asked her if there was a rat trap there that belonged at the barn, “and she said she thought there was, in the storeroom adjoining the house,” and witness understood her to .say that, “she got the trap and started back in her dining room as he opened the door and followed her in,” also that “he put his hand toward his pocket and she thought he was going to shoot her and she said ‘don’t shoot me’ and he said T have got something worse than shooting.’ ” On cross-examination it appeared that part of this stateinent may have been made the day before, the witness saying it was very hard to distinguish between the statements on the two succeeding days. She thén undertook to repeat the one made on the 17th, which corresponded quite well with the one received in evidence. Whatever of this statement which included only what was said on the day previous was of course incompetent, because then there was no fear of impending death, and it was all received over that objection of the defendants But there was no motion to strike out any part of the entire statement after the witness had told her story.
Hazel Reamer, sister of the deceased, testified that after the statement was made Doctor Boardman wrote it and took it to Agnes Smith and read it to her and asked her if it was correct, and she said it was, and the witness identified it, except as to the words excluded, as the one she signed as a witness, and testified in detail to the statement substantially contained therein, adding a reference to the rat trap and a statement as to being all dressed but the outside skirt; that before the statement was written Doctor Boardman had talked with Mrs. Smith and told her she was going to die; that Doctor Board-man told her she was about to die, and to make this hold good in 'court she would have to make a statement, something to that effect.
After this testimony, the declaration, except the excluded words, was again admitted by the court. The jury were instructed that it was exclusively within their province to weigh and determine the truth or falsity of the declaration, taking into consideration the facts that the defendant was not present, that there was no opportunity for cross-examination, and that the declarant was not subject to prosecution for perjury; that if they believed from the evidence beyond a reasonable doubt that at the time of making the same she was of sound mind and believed that death was impending and entertained no hope of recovery then they should give such declaration, if proved, such weight and credit as in their candid, fair, and truthful judgment it was properly entitled to. It is clear that the written declaration of May 17, as deleted by the court, was treated and considered as the only one before the jury, no reference to any other statements being found in the careful and full instructions on this point, the charge referring to it as “the written statement,” “such declaration,” and “the declaration read to you.”
The written declaration itself was confined to the assault and the circumstances immediately attending it, within the rule laid down in The State v. O’Shea, 60 Kan. 772, 57 Pac. 970. If the statements testified to by Mrs. Walcott and Mrs. Reamer had been shown to have been made under the fear of impend ing death, they would have been within the rule properly for consideration by the jury. In view of the entire situation, the inclusion by these two witnesses of the items not clearly shown to have been contained in the statement of May 17 cannot, in view of the careful instructions and restriction of the dying declaration to that contained in the writing admitted in evidence, be deemed to constitute prejudicial error against the defendant.
• While dying declarations, to be admissible, must be made under a sense of impending death, it is not necessary that the declarant state that he is expecting immediate death, nor is it necessary to show that the deceased was apprehensive of immediate dissolution, it being sufficient to show that she had abandoned all hope and regarded her death as impending and certain as the result of the injury inflicted. (The State v. Wilson, 24 Kan. 189; The State v. Aldrich, 50 Kan. 666, 32 Pac. 408; The State v. Reed, 53 Kan. 767, 37 Pac. 174; 21 Cyc. 977.)
At least it must be said that there was sufficient evidence touching the fear of impending death to take the case to the jury and to support the conclusion reached by them and approved by the trial court. As said in The State v. Furney, 41 Kan. 115, 21 Pac. 213:
“It was a question of the admissibility of evidence and was governed by the same rules that govern the admission of all other evidence. The question is, was there sufficient evidence to sustain the ruling of the court? The court passed upon this question and there is abundant evidence to sustain the ruling.” (p. 118.)
The record leads to the inevitable conviction that the cruel and atrocious crime charged was committed, and that whatever influences actuated him, or whatever their source, the defendant was legally found guilty.
The judgment is affirmed. | [
112,
74,
-19,
-97,
58,
-32,
10,
-104,
114,
-61,
-76,
115,
-87,
67,
13,
41,
-93,
125,
85,
41,
-44,
-73,
19,
97,
-110,
-45,
107,
-43,
49,
-56,
-12,
-33,
77,
40,
74,
29,
-90,
74,
65,
84,
-114,
5,
-23,
-47,
90,
-112,
48,
59,
-100,
15,
-91,
30,
-53,
46,
22,
103,
41,
56,
91,
-83,
-36,
-16,
-118,
-123,
-51,
22,
-77,
102,
-66,
-91,
90,
124,
-39,
49,
8,
-4,
115,
-108,
-126,
-44,
108,
-103,
12,
98,
98,
49,
85,
105,
40,
-54,
31,
-66,
-99,
-89,
24,
81,
0,
-124,
-66,
-103,
123,
80,
-122,
120,
-1,
69,
16,
112,
-55,
-101,
-98,
-79,
87,
57,
-108,
-102,
-29,
-83,
32,
113,
-51,
98,
92,
-59,
114,
-109,
-114,
-112
]
|
The opinion of the court was delivered by
Dawson, J.:
The plaintiffs sued the defendant for the death of their twelve-year-old son who was killed at Garden City. Although no witness saw the main incidents of this accident, it seems that the boy must have climbed upon the side of a freight car, and that his foot had been caught, and that he had fallen off or had attempted to jump off. The car was part of a long freight train moving westward. When first seen, the boy’s foot was caught in the angle of the iron frame which connects the set of wheels or truck at the front end of the freight car, and he was being dragged along the ground by the train. One of his legs had already been run over before the lad was discovered. The car to which the boy was caught was at some distance from the caboose, and at a still greater distance from the engine. When the train stopped, the boy was released from the car at about 1,200 feet west of a bloody place on the track, which indicated that a car wheel had there run over him. He died shortly afterwards. The engineer and conductor testified that the train was moving about five miles per hour. Another witness who saw the boy dragging from the car truck, and who ran alongside and attempted to release the boy, said that he had to run at “about fifteen miles per hour” to keep up with the moving train. The boy was shown to have been a bright, healthy lad who helped his mother in her bakery business and delivered goods about town.
Defendant’s demurrer to the plaintiff’s evidence was sustained, and this is assigned as error.
Counsel for plaintiff say:
“On the demurrer to the evidence it must stand admitted that the instant that Kermit Sherman was caught by the train he was helpless and no longer charged with negligence; that the train was running fifteen miles per hour when the ordinance of said city limited its speed to not more than seven; that the head and rear brakemen were not in their proper positions on the train and if they did n’t see Kermit Sherman wi.en he was first caught by the train it was due to this fact; that the boy was dragged for 1,200 feet or four blocks in the principal part of the city; that the place where the accident occurred was frequented by trespassers and licensees; that the train could have been stopped in from 50 to 75 feet; that the train might have been stopped in time to have prevented his injuries had the brakemen been in their proper positions.”
It is the law of this state that the only duty of a railway company to a trespasser is to refrain from willfully injuring him. (A. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 558, 38 Pac. 804; Railway Co. v. Prewitt, 59 Kan. 734, 54 Pac. 1067; Burgess v. Railway Co., 83 Kan. 497, 112 Pac. 103.)
In some jurisdictions a duty is imposed upon railway companies to keep a lookout for trespassers, where the presence is to be expected (see note in 8 L. R. A., n. s., 1069, et seq.), but that rule may be founded on local statutes, and the decisions so holding go no further than to impose such duty to look out for trespassers on the tracks; none of them suggests a duty on the railway company to watch out for such trespassers as may be inclined to climb upon the freight cars of its trains, either while such trains are standing or in motion. Even in congested switch yards, in this state, the railway’s duty is merely to avoid willful injury to a trespasser. (Malott v. Railroad Co., 99 Kan. 115, 160 Pac. 978.)
When discovered, the boy had already been run over by the trucks of the freight car, and his maimed body was being dragged by the train. The fact, if it be a fact, that the train was going fifteen miles an hour had nothing to do with the ac cident. (Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 395.) Where the brakemen were stationed on the train is of no consequence, for no duty was imposed on them to keep an outlook that this boy did not attempt to climb on the freight car. The law does not require a railr'oad company to be on the alert against the invasion of a freight train by trespassers.
In Hanley v. Railway Co., 61 Kan. 237, 59 Pac. 271, it was decided :
“Where a trespasser goes under a train and upon a brake of a car in an attempt to steal a ride, no duty of the railroad company arises in his favor until he'is discovered by some one in charge of the train, nor can a recovery be had for injuries caused by falling from his perilous position unless the company was guilty of willful and wanton neglect of duty in not stopping the train and removing him after his peril was discovered.” (syl. ¶ 2.)
In Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282, it was held:
“1. As a general rule, a railroad company owes no duty to trespassers who jump on and off its moving trains for the purpose of stealing rides, except not recklessly or wantonly to injure them after their peril is discovered.
“2. An intelligent boy, twelve years of age, who was familiar with the running of railroad trains, and who knew and appreciated the danger of getting on and off a moving train, climbed upon a slow-moving train and was injured while getting down from one car and attempting to climb upon another. Held, that he was a conscious trespasser and responsible for his own negligence and injury.
“3. The fact that the plaintiff and other boys had previously jumped on and offNthe cars of the company, without remonstrance from the employees of the company, did not amount to an invitation from the company to plaintiff to hop on and off its moving trains thereafter, nor make the company liable for an injury resulting from such reckless conduct.” (syl.)
In A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 112, 26 Pac. 403, id. 27 Pac. 824, it was said:
“If it were the duty of the trainmen to keep a lookout to prevent thoughtless children from climbing on or under their train when crossing the public street at a slow rate or when piomentarily stopping in a public street, before crossing another railroad, then the brakeman or trainmen, instead of being at their usual or proper places upon the cars to handle the brakes, give signals, etc., should be upon the ground, near by the several cars of- the train, watching the cars or patrolling the ground around the cars, to prevent children and others from getting on or under them. . . .
“The only alleged negligence found by the jury was that the brakemen or trainmen were no-t at their proper places. Nothing else was found. If they had been at their usual or proper places on the cars for the operation of the train, they would not, in the performance of their usual or general duties, have been watching, or looking out to prevent children or others from climbing on or under the cars, when the train was in motion, or when it momentarily stopped.” (p. 114.)
(See, also, Tennis v. Rapid Transit Rly. Co., 45 Kan. 503, 508, 25 Pac. 876; Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846; Gamble v. Oil Co., 100 Kan. 74, 163 Pac. 627.)
There was no evidence that the train was not promptly stopped when once the boy’s situation was discovered. The enginemen were under no duty to watch for and respond to signals given by a bystander or stranger running alongside the train, and there is no evidence that they saw or understood those signals.
There was no evidence of negligence on the part of the railway company; the negligence of the unfortunate boy was fully established by circumstances; and the judgment of the trial court cannot be disturbed.
Affirmed. | [
-16,
106,
-100,
-81,
26,
99,
42,
88,
117,
-25,
-28,
83,
-115,
-57,
25,
49,
-1,
55,
-47,
51,
116,
-109,
23,
-93,
-110,
-45,
123,
-59,
51,
89,
100,
-33,
77,
18,
74,
-43,
102,
72,
-59,
94,
-50,
-68,
-87,
-28,
27,
16,
-96,
122,
22,
15,
49,
14,
-13,
42,
24,
-17,
45,
61,
-5,
-87,
-48,
113,
-62,
7,
60,
22,
-94,
32,
-98,
-93,
88,
24,
-40,
49,
32,
-4,
115,
-92,
-125,
-4,
97,
-119,
-116,
-30,
102,
33,
29,
101,
-68,
-120,
46,
30,
-97,
-89,
30,
48,
41,
15,
-105,
-33,
99,
16,
14,
-8,
-8,
69,
75,
100,
3,
-49,
-76,
-111,
-49,
33,
-108,
-69,
-21,
37,
34,
117,
-50,
-78,
93,
6,
123,
-101,
-97,
-66
]
|
The opinion of the court was delivered by
Mason, J.:
On November 11, 1911, J. O. Foresman, the owner of a tract of land, and his wife, Susan C. Foresman, signed and acknowledged a deed purporting to convey it to their son, Ernest M. Foresman. On April 22, 1916,. J. O. Foresman died, survived by his wife, .one daughter and two sons, leaving a will giving all his property to his wife for her life, with a remainder to their children living at the time-of her death. The will contained a description of three tracts of land (not including that already referred to) under the cap tion “My Land Described,” with a. provision that “the land” should be given to his two sons on condition of their paying the daughter one-third of its appraised value. On February 1, 1917, John H. Foresman, the other son, brought an action for the partition of the real estate described in the deed already referred to, making his mother, his sister and his brother defendants. His brother filed an answer and cross petition in which he claimed to be the absolute owner and to be in the possession of the tract described in the deed and asked to have his title quieted against all the other parties. The plaintiff and his sister filed pleadings denying that the deed was ever delivered to their brother and asking that the land therein described be partitioned with the rest. A trial resulted in a judgment in favor of Ernest M. Foresman, and his brother and sister appeal.
In the brief of the appellants it is said that the sole and only question at issue in this appeal is whether or not the said warranty deed from J. O. Foresman and Susan C. Foresman, to Ernest M. Foresman, was delivered by J. O. Foresman to Ernest M. Foresman during the lifetime of J. O. Foresman. Error is assigned, however, upon the refusal of the court to grant the appellants a jury trial upon that issue, and while the question is not further argued in the brief, the statute (Gen. Stat. 1915, § 7179), and Gordon v. Munn, 83 Kan. 242, 111 Pac. 177, are cited in support of the assignment. The action was brought as one for partition, and'nothing more. As Ernest M. Foresman was in possession of the tract in controversy under a claim of exclusive ownership, an action of partition could not be maintained against him without joining a demand for ejectment. (Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074.) If the plaintiff had prayed for possession, under suitable allegations, the defendant who opposed his claim could as a matter of course have demanded a jury. But the trial of the issue as to the delivery of the deed was had upon the cross petition of Ernest M. Foresman and the denials of the adverse parties, and his pleading was a plain statement of a cause of action for affirmative relief — the quieting of his title, a matter of equitable cognizance, triable without a jury. (Larkin v. Wilson, 28 Kan. 513; Note, Ann. Cas. 1913D, 168.) If the plaintiff had seen fit to bring an action of ejectment against the claimant under the deed he could have had a jury trial. Having chosen to sue only for partition he is .not in a position to complain of being denied a jury. The cross petitioner is not in the attitude of one who is invoicing an equitable remedy for the possible purpose of avoiding the submission of his claim to a jury. He availed himself of the ordinary procedure open to a person in possession of realty whose ownership is questioned — an action to quiet title.
Upon the merits of the case the question is merely whether there ,was any substantial evidence to support a finding that the deed was delivered. The grantee was of course incompetent to testify/as to what took place between his father and himself; but a neighbor testified that in the early part of 1916 his father told her that during a recent illness he had given Ernest the deed, adding,- “You know a deed is not good until it is delivered, and I gave Ernest his deed that night.” The widow testified that her husband told her he had given Ernest his deed, and that “he would like to have Ernest have it recorded if it were not for the fact that Homer [the plaintiff] would act like he did.” Of a subsequent conversation with her husband she said: “He told me that he had given Ernest his déed, and he didn’t want him to have it recorded now, and he wanted me to take it and take care of it and if he should go [die] to deliver it to Ernest and let him have it recorded.” She added that the next day he took the deed from his coat pocket and handed it to her, saying: “You put this with your papers now and take care of it, and if I should go first, deliver it to Ernest and let him have it recorded.” She took the deed and kept it until after her husband’s death, when she handed it to Ernest, who had it recorded.
We regard this evidence, with the inferences permissible therefrom, as capable of such interpretation as to sustain a finding, which the court must be regarded as having made, that J. O. Foresman delivered the deed to his son with the intention that the title should thereby pass; that he then had the document returned to him and retained it in his possession in order to be assured that it should not be recorded during his ■lifetime, because he wished to avoid the comment that might result from knowledge of its execution becoming public. The return of a deed to the grantor immediately after its delivery, for a purpose not inconsistent with an intent that the title shall pass, does not prevent the vesting of ownership in the grantee. (8 R. C. L. 987.) And the return of a deed to the grantor under an agreement that he should retain it until his death, when it should be recorded, has been held — properly, as we think — to show a purpose to insure its being withheld from record, and not to impair the effect of the prior delivery. (Blackford v. Olmstead, 140 Mich. 583.)
It is argued against this view that the expression of the grantor — “If I should go first, deliver it to Ernest and let him have it recorded” — indicates that he did not intend that it should take effect as a deed, unless he should die before the grantee. It seems quite as reasonable to suppose, however, that he meant merely to provide for its record in. case his son (or- wife) survived him, intending otherwise to see to the recording himself. His statement that a deed was not good until it was delivered tended to show that he understood the law and meant for the title to pass at once.
A witness stated that the grantee had said that the deed was not delivered to him until after his father’s death, but he denied this. He told on the stand of his having “received” the deed from his mother at that time. If he had spoken of the transaction by 'which the document finally came into his physical possession as a delivery, it could not have been conclusive evidence, if any evidence at all, that the title had not already vested in him — his ownership could not be lost by his failure to use words in their exact technical sense. In handing him the document after her husband’s death his mother in a sense “delivered” it to him, but the fact 'is without significance if what the law recognizes as such a delivery as to pass title had already'been made.
In behalf of the plaintiff and his sister, evidence was introduced tending to show that no delivery of the deed had taken place — that at thé time the grantee claims to have first received it his father in reality merely showed it to him and said he didn’t want him to have it until after his death. The credibility and weight of this evidence were of course matters upon which the decision of the trial court is final.
The judgment is affirmed. | [
-15,
108,
-12,
60,
10,
-32,
-118,
-104,
112,
-96,
37,
83,
111,
-38,
17,
109,
114,
77,
81,
104,
-60,
-9,
31,
-63,
-46,
-13,
-79,
-43,
-72,
-56,
-12,
87,
76,
32,
10,
-43,
-58,
-62,
-51,
84,
-114,
-123,
-118,
109,
-39,
112,
52,
49,
18,
75,
85,
-113,
-13,
44,
57,
-61,
44,
46,
-37,
41,
-112,
-72,
-85,
-123,
127,
18,
-111,
6,
-40,
-121,
72,
-114,
-112,
49,
-120,
-32,
83,
-74,
-106,
116,
73,
25,
8,
46,
103,
49,
-35,
-17,
-8,
-104,
14,
-69,
-115,
-89,
22,
88,
-117,
97,
-76,
-100,
121,
64,
79,
118,
-18,
21,
28,
-8,
9,
-113,
-42,
-127,
-115,
120,
-128,
-125,
-5,
-123,
48,
113,
-55,
-94,
93,
103,
113,
-69,
-113,
-4
]
|
The opinion of the court was delivered by
West, J.:
The petitioner brought this proceeding to obtain the custody of his infant daughter from her grandparents, the respondents. From an adverse judgment the latter appeal. In their brief it is stated that the one question involved is the fitness of the father to be intrusted with the custody and guards ianship of his child.
The record presents a somewhat anomalous situation. The petitioner married a daughter of the respondents before she had reached the age of eighteen, and when their little daughter, born the following year, was. some eight months old, the mother died in convulsions which the respondents clkim were caused by poison administered by the petitioner. From what purports to be a copy of the journal entry and the remarks of the trial court when the case was decided, it appears that the burden of proof was placed on the respondents, and it is recited:
“And thereupon the said respondents having introduced their evidence rested their case; whereupon the petitioner demurred to the evidence of said respondents for the reason that the evidence did not sustain the allegations in said respondents’ return to the writ. And the court having heard the arguments of counsel and being fully advised in the premises, sustained said demurrer and finds that the petitioner; Arthur Underwood, as the father of said minor child, Arleen Underwood, is entitled to have the care, custody, and control of her.”
A motion for new trial was filed on the grounds that the decision was contrary to the law; that it was contrary to the facts and the evidence; that it was given under the influence of passion and prejudice; that the court erred in sustaining the petitioner’s demurrer to the evidence of respondents; and also on the ground of newly discovered evidence. The notice of appeal recites that the respondents appeal “from the judgment rendered against them .. . . wherein it was adjudged that the petitioner have the custody and possession of Arleen Underwood, and also appeal from the order of the court overruling respondents’ motion for a new trial in said cause.” Assignments of error are made upon the sustaining of the demurrer to the evidence; that the judgment is contrary to the law and contrary to the evidence; on the overruling of the motion for new trial; and in giving the custody of the child to appellee and not to the appellants.
It is argued in the brief of the respondents that the evidence shows the petitioner to be unfit to have the care and custody of the child, and it is said:
“The evidence shows that his conduct during her last illness and subsequent to her death is such that brands him unquestionably as being the means and cause of her death. . . . Under the circumstances, and in view of these uncontradicted facts, will this Court now say that he is a fit person to have the custody and rearing of this little girl, who is ,now only a year and a half old? . . . What clearer or more satisfactory proof does the court desire than we have already submitted, to show the unfitness at this time of the appellee to care for and have the custody of this little girl? We believe we have shown by ample testimony that the' father, the appellee in this case, is unfit.”
Hence, while the case on oral argument was presented as one involving the sustaining of a demurrer to the evidence, it appears upon an examination of the record that not only the trial court but also the parties have, treated the matter as a full and final submission after all the evidence of the respondents was in.
On rendering the decision the trial court, after going over the facts and circumstances to quite an extent and coming to the night when the poison was alleged to have been administered, said:
“Now outside of what took place in that room that night out at Salina, there is not a syllable of testimony that tends to show in the slightest degree that he is not as fit to have that child of his own as he was to have the child of these two other people in his home as his wife.”
Then, after referring in detail to the occurrences of that night, it was further said: '
“This young woman died and there was an analysis made of her stomach, and only the merest, faintest trace — one fifty-thousandth part of a grain — of strychnine was found in the stomach, and that too, after there had been a small amount of strychnine injected into her body hypodermically some time before the time she died. It seems to me that it does n’t even create the suspicion that she died from strychnine poison. But if she did, then what a leap in the dark it is to conclude that her husband gave it to her.”
And after still further reviewing the testimony it was said:
“The young woman died, and, as I view it, without any interference on the part of the husband, and the law says the husband may have the child; that he shall have it, and that will be the decree of this court.”
It appears that the petitioner was prosecuted for the murder of his wife and acquitted, and while there is ip the record some evidence which might be deemed, not only consistent with the theory of his guilt, but possibly somewhat tending to establish his guilt, there was hardly a serious approach to the sufficiency of evidence required under the rule that in order to deprive the parent of the custody of his child his unfitness must be established by clear and convincing evidence.
Were the question presented only one of merely sustaining a demurrer to the evidence of the respondents, a claim of technical error would doubtless have to be conceded; but with the evidence before us, and the extended review thereof by the trial court, and the repeated declarations as to its utter insufficiency, it cannot be said that any error was committed in awarding the custody of the child to the petitioner upon full consideration of the entire evidence, which was in fact done. (See The State v. Order of Eagles, 100 Kan. 480, 164 Pac. 1063.)
Treating the case, therefore, as one decided upon its merits, the decree is affirmed. | [
-80,
-18,
-76,
-68,
42,
96,
106,
56,
98,
-29,
-89,
-13,
43,
-62,
28,
105,
122,
47,
80,
122,
-63,
-73,
22,
-63,
-14,
-13,
-77,
-41,
-13,
-52,
-19,
126,
76,
48,
-54,
-43,
102,
-54,
-47,
-48,
-114,
1,
-88,
-19,
-40,
-62,
50,
123,
94,
15,
49,
-97,
-29,
42,
28,
-58,
40,
47,
123,
-67,
-112,
-8,
-117,
23,
-113,
22,
-77,
-74,
-68,
-59,
72,
46,
24,
49,
0,
-20,
115,
-90,
-122,
116,
75,
-103,
8,
102,
102,
-96,
109,
-25,
-72,
-120,
46,
14,
29,
-89,
-46,
88,
9,
-19,
-66,
-35,
116,
20,
47,
122,
-21,
84,
60,
-28,
4,
-117,
86,
-71,
13,
-86,
-40,
26,
-29,
-87,
16,
113,
-47,
32,
92,
1,
51,
-111,
-98,
-98
]
|
The opinion of the court was delivered by
WEST, J.:
The defendant signed a note with another person, who was the borrower and real principal, and when sued thereon he pleaded that it was agreed between the plaintiff and himself at the time he signed the note that before he could be held thereon or réquired to .pay any portion thereof the plaintiff would exhaust certain chattel-mortgage security given by the principal, and 'that the defendant should be held for the balance only; that afterwards the plaintiff released its security without his knowledge and consent, although the property mortgaged was of more value than the amount of the note. The defendant further pleaded that the mortgaged property was sold by the principal, with the consent of the plaintiff, for $175, taking the purchaser’s note for that amount due in thirty days, and a collateral note from the purchaser for $250 secured by a real-estate mortgage, both of which notes were indorsed and delivered to the plaintiff, who consented to the sale; and that by reason of these facts he, the defendant, had been damaged in the sum of $175 by the failure of plaintiff to carry out its agreement with him, which damage he claimed as a set-off and counterclaim. The trial court held that, having signed the note as a j oint maker, the defendant’s counterclaim could not be considered.
The defendant appeals, and contends that this case falls within the rule of Carter v. Wilson, 102 Kan. 200, 169 Pac. 1139, and that the bank having, without his knowledge or consent, released the mortgaged property to the principal and then undertaken to recover from the defendant, he is not liable.
The plaintiff relies on the negotiable-instruments law (Gen. Stat. 1915, § 6587), and on numerous decisions of this court, in. support of its contention that the plaintiff is liable as a joint maker.
To this the defendant replies that, even if under the statute he became primarily liable, he is entitled to be heard upon his cross complaint as to damages.
Concerning the decision in Carter v. Wilson, it may be said that “this thing was not done in a corner.” It was made plain in the opinion that no objection was made to the defense stated in the answer, that the court found the essential facts, and that the findings were not challenged, the only question presented being whether they sustained the judgment. So, in order to make the present case apply, the testimony in support of the answer must have been received without objection, which was not the case.
The fact that the defendant was a surety only does not help him. (Gen. Stat. 1915, § 6523; Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429; Bank v. Jeltz, 101 Kan. 537, 167 Pac. 1067; Bank v. Dickinson, 102 Kan. 564, 171 Pac. 636; Bank v. Hoyt, 103 Kan. 44, 172 Pac. 994.)
A contemporaneous oral' agreement contradictory of the plain terms of the instrument could not be shown, because the result would be to render unsafe all reliance on such instruments. (Getto v. Binkert, 55 Kan. 617, 40 Pac. 925; Van Fossan v. Gibbs, 91 Kan. 866, 139 Pac. 174; Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429; Bank v. Watson, 99 Kan. 686, 163 Pac. 637; Investment Co. v. Gamble, 102 Kan. 791, 171 Pac. 1152; Lonnon v. Batchman, 103. Kan. 266, 173 Pac. 415.)
The question remains whether such an agreement can be shown in support of a counterclaim or set-off as attempted in this case. If it could, then to break down a promissory note it would be necessary only to aver and prove the breach, of an agreement as a cause of action, which breach could constitute no defense to an action on the note. Of course, the law does not permit such a change .of form to work a change in character.
The judgment is affirmed. | [
-109,
122,
-124,
29,
-102,
96,
58,
-102,
-63,
32,
-89,
115,
121,
-62,
28,
109,
-26,
105,
-43,
106,
85,
-77,
38,
65,
-46,
-78,
-15,
93,
-67,
-17,
-28,
23,
77,
48,
-62,
-43,
102,
-126,
-63,
86,
78,
4,
8,
68,
-7,
72,
48,
27,
84,
73,
65,
-107,
-13,
45,
29,
78,
109,
42,
107,
49,
-16,
-8,
-117,
-123,
95,
21,
51,
53,
-40,
79,
-8,
42,
-112,
51,
1,
-24,
114,
-74,
-122,
-12,
105,
26,
40,
98,
99,
50,
77,
123,
-104,
-103,
46,
-17,
15,
-90,
-47,
88,
43,
32,
-65,
-99,
103,
16,
38,
-10,
-6,
29,
28,
108,
15,
-113,
-42,
-77,
11,
126,
-102,
-53,
-9,
-125,
37,
97,
-49,
32,
92,
99,
122,
-101,
-98,
-43
]
|
The opinion of the court was delivered by
MASON, J.:
In this case it was held that the wife of a member of a fraternal beneficiary association, by an agreement with her husband which was carried out on her part, had acquired a vested right in his certificate in which she was named as beneficiary, so that, notwithstanding a subsequent attempted change, she was entitled to its proceeds upon his death. In a petition for a rehearing it is said that this court overlooked and disregarded the effect of a by-law providing that “any agreement entered into by a member not to change his beneficiary, shall be null and.void.” It is true that the abstract shows the existence of such a by-law, but we are unable to discover any reference to it in the brief. In that situation we cannot regard its effect as fairly involved in the case. Possibly this provision is one which the association could waive even after the death of the member, and which it may be regarded as having waived by the payment of the money into court for such disposition as should be found just as between the conflictory payment, although by the weight of authority the rule is otherwise as to by-laws regulating the manner of effecting a change of beneficiary. (19 R. C. L. 1297, 1298.) But as the question has not been argued here, and presumably was not passed upon by the district court, we do not regard it as before us for decision.
The petition for a rehearing suggests that the appellant should at least be allowed the amount of the assessments paid by him. We think that so far as concerns payments made before the attempted change of beneficiary he has no legal claim for reimbursement out of the money in the hands of the court, but that the pule is otherwise with respect to the payments made after the issuance of the new certificate naming him as beneficiary. (29 Cyc. 163.) A specific claim of that character has not been made, and the amount involved is not shown. To protect the interests of the appellant in that regard the affirmance of the judgment is made without prejudice to a right on his part to (apply to the district court for reimbursement of the amount of.assessments paid after the new certificate was isshed.
The other grounds urged in the petition for a rehearing have been considered, but the court remains of its former opinion, and the petition is denied. | [
-110,
-4,
-48,
-4,
10,
96,
-94,
-104,
80,
-128,
35,
81,
59,
-37,
0,
107,
97,
125,
97,
107,
-41,
-73,
55,
72,
-46,
-13,
-47,
-57,
-79,
-36,
-9,
31,
76,
32,
10,
-43,
98,
-117,
-51,
80,
6,
-122,
-102,
69,
-7,
4,
52,
55,
-42,
15,
117,
-37,
-109,
44,
21,
-58,
41,
44,
125,
45,
80,
-16,
-82,
13,
127,
21,
49,
36,
-4,
111,
-40,
46,
24,
49,
8,
-32,
83,
-90,
-122,
116,
43,
-67,
9,
98,
99,
-128,
113,
-17,
-104,
-104,
15,
18,
29,
-90,
-108,
89,
41,
105,
-75,
-101,
127,
52,
-90,
116,
-28,
21,
31,
-92,
17,
-33,
-42,
-111,
-51,
124,
-104,
14,
-1,
-125,
48,
113,
-56,
-22,
92,
99,
122,
-101,
-105,
-102
]
|
The opinion of the court was delivered by
Burch, J.:
The action was one by the petitioner to obtain custody of his infant daughter. Judgment was rendered in his favor, and the respondents appeal.
The child’s mother died when it was about six weeks old. Just before her death the mother expressed a desire that her parents, the respondents, take the child, and they did so. They have cared for it in a manner entirely compatible with its welfare, and doubtless the child would be well nurtured if left with them. The child’s father, however, has established his residence in another city, and desires his daughter to be with him. He has provided a home, which is shared by his mother and two young sisters. He is of high character, is able to provide for the child fully as well as the respondents, and has done nothing to forfeit the claims with which nature and the law endow him. The respondents hope for an early improvement in their financial affairs, but the father is competent to support this child, two and one-half years old when the trial occurred, is a young man, and has prospects of advancement before him. The dying mother’s request was doubtless wise and proper at the time, but she had no authority to dispose of the baby permanently. Probably she had no thought of doing so, and concurrence of the father in the request did not preclude him forever. In making its finding of fact regarding the welfare of the child the court appears to have been guided by the principles announced in Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968, In re Hollinger, 90 Kan. 77, 132 Pac. 1181, and other decisions of this court of like tenor. The finding is approved, and the judgment awarding custody of the "child to its father is affirmed. | [
-15,
110,
-107,
124,
26,
98,
42,
58,
80,
-85,
39,
-13,
-55,
-38,
85,
105,
122,
47,
113,
115,
-45,
-77,
87,
-32,
-38,
-14,
-77,
-43,
-77,
-7,
108,
94,
76,
48,
-54,
-43,
102,
-54,
-47,
-48,
-118,
1,
-118,
-59,
-47,
-46,
52,
123,
90,
75,
17,
-97,
-121,
42,
25,
-43,
44,
14,
-37,
-75,
-36,
-16,
-113,
-121,
-33,
22,
-111,
32,
-72,
-89,
88,
44,
-52,
24,
0,
-24,
83,
-76,
-106,
124,
73,
9,
9,
103,
103,
-126,
12,
-28,
-8,
-104,
110,
-98,
-115,
-90,
-104,
88,
2,
97,
-74,
-65,
124,
20,
47,
120,
-30,
5,
78,
-4,
4,
-114,
-42,
-79,
-113,
40,
18,
27,
-29,
-31,
35,
113,
-34,
-94,
76,
67,
122,
-109,
-98,
-2
]
|
The opinion of the court was delivered by
sBurch, J.:
The action was one for damages for personal injuries which the plaintiff suffered in an automobile accident. A demurrer to the plaintiff’s evidence was sustained, and he appeals.
.The fact of the accident was not disputed. The automobile belonged to the defendant, but was operated by his daughter, a minor. The defendant purchased the automobile for the use of his family. His daughter had' general permission, implied at least, to use the car whenever she desired, and she used it, with her father’s assent, whenever it suited her pleasure. Other members of the family used it as they pleased. On the occasion in question the daughter was out on a pleasure trip of her own, and was accompanied by another young lady.
The foregoing facts were embraced in the opening statement of the defendant’s attorney to the jury, and the plaintiff’s evidence added nothing to the admitted relationship of the defendant to the car and its use.
The demurrer to the evidence was properly sustained. There was neither admission nor evidence to submit to the jury proving, prima facie or otherwise, or tending to prove, that the defendant’s daughter was acting for him as agent, or servant, or in any other representative capacity, or under his direction or control, or in any joint enterprise from which agency might be implied. (Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863.)
The automobile was not a dangerous instrumentality which the defendant let loose in the community. The automobile was not a guilty agent in the accident, bringing punishment on the owner like the deodands of English law. Mismanagement by the driver was the cause of the accident. The purchase of the automobile by the defendant for the use of his family, including his daughter, operated as a gift to them of the right to use it. When using it to accomplish his purposes, whether business or pleasure, they represent him, but when they exercise their privilege and use it to accomplish their own distinct purposes, whether business or pleasure, they a,ct for themselves,' and are alone responsible for their negligent conduct. The fact that the automobile was purchased for use by the owner’s family did not make him generally responsible for its subsequent operation, and because the car was subject to appropriation by the members of his family for their own use, there is no presumption that any particular trip was made in his behalf. The use made of the car on any particular occasion is a question of fact, to be determined by evidence showing the fact, and in this instance there was no-evidence that anybody was concerned except the daughter.
The development of the law on this subject has been attended by a rather slow process of clarification. When the automobile was new and strange, and was regarded with some wonder and considerable fear, there was a tendency to look upon it as a dangerous thing, fraught with such possibility for harm that the owner should always be held responsible for its use. When it commenced to take the place of the family horse, this view had to be abandoned. The notion, however, of general liability on the part of the owner for use of his car having been planted in the mind, it lingered there'like- a superstition. Courts were reluctant to ignore it, and as a result, an. adaptation of the law of master and servant, and principal and agent, was resorted to, to explain the liability.' If a man purchased an automobile and allowed his wife and his son and his daughter to use it, the use was his by virtue of representation, whether representation existed in fact or not. The deduction was facilitated by employment of the fine art of definition — putting into the definition of the term “business” the attributes necessary to bolster up liability. So, if .daughter took her friend riding, she might think she was out purely .for the pleasure of herself and her friend, but she was mistaken; she was conducting father’s “business” as his “agent.” As this incongruity became more and more apparent, a further concession was sometimes made. If the owner allowed a member of his family to use the automobile, he might not be liable, but it was “presumed” the use was his by representation. If son took his best girl riding, prima facie it was father’s little outing by proxy, and if an accident happened, prima facie father was liable. Some courts were inclined to get rid of the difficulty of resting liability on the one existing fact — ownership pf the car — by declaring that the question of “agexicy” was one for the jury — a process known in some quarters as “passing the buck.” The sooner the coqrts settle down and deal on the basis of fact and actuality with a vehicle which has revolutionized the business and the pleasure of the civilized world’, the better it will be, not only for society, but for the courts. ■
The judgment of, the district court is affirmed. | [
-16,
110,
-40,
-82,
25,
106,
34,
88,
100,
-121,
-89,
-109,
-21,
-54,
21,
41,
-2,
-67,
84,
106,
-43,
-78,
7,
-110,
-14,
-77,
48,
-39,
-110,
73,
103,
126,
76,
48,
-54,
21,
-26,
75,
-43,
113,
-122,
-124,
40,
-23,
-39,
82,
-76,
58,
84,
13,
97,
-113,
-125,
46,
27,
-41,
43,
42,
107,
-75,
-48,
-16,
-21,
7,
91,
18,
-109,
52,
-68,
39,
-40,
8,
28,
-71,
0,
-19,
51,
-90,
-126,
-12,
109,
-103,
-120,
-26,
99,
34,
57,
-27,
-52,
-104,
-82,
-5,
15,
-89,
84,
89,
9,
41,
-65,
-33,
110,
18,
47,
120,
-6,
84,
89,
-12,
3,
-53,
-106,
-111,
-19,
114,
-106,
-128,
-21,
-87,
53,
97,
-52,
112,
93,
65,
90,
-111,
-122,
-66
]
|
The opinion of the court was delivered by
Porter, J.:
Alleging in her petition that her husband, Ross Cash, while in the employ of defendant, came to his death through defendant’s negligence, plaintiff sued_ and recovered judgment for $5,775, from which defendant appeals.
The petition alleged that Ross Cash at the time of his death was in the discharge of his duties as a pumper’s helper, and was on a tank car which was being filled with gasoline; that his duties required him to signal to the pumper when the car was filled, and in order for him to ascertain this fact it was necessary for him to stand on the tank car and lean over the dome; that while he was looking down into the dome to discover whether the tank was filled, fumes and vapors arising from the gasoline saturated and impregnated the air, so that he was overcome and fell from the car a distance of 10 or 12 feet into a ditch by the side of the track; that the fall rendered him unconscious, and while in this condition he breathed into his lungs water, oil and other waste products in the ditch, and when discovered he was dead.
Three acts of negligence are charged: First, defendant knew, or should have known, that vapors given off by gasoline being loaded into tank cars, were liable to overcome the deceased while performing his duties, and that defendant did not send any one to assist him in the event he should be overcome by gasoline fumes, but sent him unattended into a position of danger; second, that it was the duty of the pumper to watch Ross Cash while the latter was engaged in his duties, so that the pumper could render assistance to him if occasion demanded, which the pumper neglected to do; that the pumper deserted his position, and went to a place in the defendant’s refinery and remained for more than five minutes, during which the accident happened which resulted in the death of plaintiff’s husband; third, that the defendant was negligent in maintaining the open ditch along the track where the car was located, so that when Ross Cash fell from the car and into the ditch, he breathed oil and water and mud into his lungs.
Two grounds of negligence alleged in the petition wei;e eliminated at the trial; (1) the plaintiff offered no evidence to show that the pumper neglected to watch the deceased and render him assistance if occasion required, or that the pumper deserted his post; no instructions were asked upon that issue and none were given; (2) the court instructed that plaintiff was not entitled to recover because of the presence of the ditch by the side of the track. The case was submitted solely on the issue that defendant, knowing of the dangers to the plaintiff’s husband because of- the fumes and vapors coming from the gasoline, and that he was liable to be overcome, negligently ordered him into a position of danger without sending any one to assist or help him in the event he should be overcome by fumes.
Ross Cash at the time of his death was an able-bodied man, 21 years of age, and had been in the employ of the defendant for several months as pumper’s helper. In the afternoon of May 20,1917, he was at work as a pumper’s helper filling a car with gasoline. No one saw him fall from the car.
The capacity of an ordinary tank car is 80,000 gallons, and it requires about 40 minutes to fill it to the top of the shell, and two or three minutes to fill the dome. The rules of the interstate commerce commission, however, forbid the filling of a tank above the level of the top of the shell, that is, there must be no' oil or gasoline in the dome. Tank cars are constructed with a running board which extends along the sides and across the ends at the height of the roof of an ordinary freight car, with a handrail of gas pipe about 3 feet above the board, for the use of trainmen passing over the car, or of persons loading, unloading or inspecting the car. The handrail is next the tank, so that a person stands or walks on the outside of the rail. When the car is to be filled, it is brought alongside of. the loading rack. The defendant’s loading rack consists of a platform 6 or 8 feet wide and from 12 to 15 feet above the ground. The distance between this loading rack and the running board of the tank car is between 3 and 4 feet. The oil or gasoline is carried in pipe lines up through risers to the loading rack, where there is a valve fixed about 4 feet above the floor, from which metal spouts swing to the tank car. Between the loading rack and the railway track, there is a small drain to catch water and waste. At the defendant’s plant a pumper and pumper’s helper did the loading of the tank cars. It was the duty of the pumper to remain at the pump house 300 or 400 feet from where the tank car stood, and to operate the pump and to watch for signals from the helper when to shut down the pump; or he could signal to inquire of the helper when to shut off the flow. The signals were given by whistling or calling. There were two methods that could be used to shut off the flow of the gasoline, either stopping the pump and then the valve, or shutting the valve first; the latter method causes pressure in the line, and the better plan, and the one usually followed, was to shut the pump down first. On the loading rack there was a board to be laid across from the rack to the running board on the tank car for use in passing from one to the other.
Roy Jarrett, an' employee of the defendant, was the principal witness for the plaintiff. He described the car, the loading rack, the situation of the valves, and the methods employed in filling a car. He saw Ross Cash about fifteen minutes prior to his death, at which time Ross was standing on the running board of the tank car leaning against the spout. He identified a photograph of a similar tank car standing on the track by the same loading rack, with a man on the running board leaning with his arms resting across the loading spout and standing about 4 feet from the dome, which he said describes the position of Ross Cash when witness first saw him. About fifteen minutes afterwards, the witness was in the receiving house 250 feet from the tank car, when he heard the pumper whistling for a signal, and saw that the car was running over; he ran to the rack to shut off the valve, first telling the pumper to shut off the pump; at that time the pumper was over at the boiler room at the side of the rack and was in position where he could have seen Ross Cash on the running board; but witness did not know how long the pumper had been there. The witness climbed upon the rack and shut off the valve. The deceased was lying face downward in the small ditch, his face buried in the mud. The body was stretched out straight. The gasoline from the tank had run over and upon the body, but could not have been running over very long — a few seconds, possibly a minute or two. His testimony is that the custom at the plant was to always whistle or call some way to draw the attention of the man who was watching the car. He did not see Ross Cash give any signal on this occasion, and he testified that when he went upon the loading rack, the board was not across from the loading rack to the tank car, but was lying over near the end of the platform. He had never seen a written rule to the effect that a helper should always put the board from the loading rack to the tank car, “but I have heard verbal rules given me, when I was working as a pumper.” He was asked: “What is the rule?” His answer was: “Never to jump from the tank car to the loading rack, or loading rack to tank car, is the rule I got.” When he climbed upon the platform and shut off the valve, he said he complied with the rule and laid the running board after he got there. “I laid it across from where I picked it up . . . and then I went over on the tank car.” He testified that it was the duty of the pumper to see that there was suction; that the pump is at the pump house, and the pump house is connected with various tanks around about the refinery, some of them being quite a distance from the pump house, one being a quarter of a mile away, and that there are a great number of gate valves and manifolds in the pump house which are manipulated to get the proper connections ; that it was between 300 or 400 feet from the tank car to the place where Keller, the pumper, was when he was whistling for a signal from the tank car; that after the helper had put the pipe in the dome, he would go over to the loading rack and open the valve, and after he “finds that he has suction, he goes to see whether or not it is flowing into the car. While the tank car is being filled with gasoline he stands on the running board of the car, and Cash was on the west side of the dome and I saw him about fifteen minutes prior to the time that I found him dead, at which time he was standing on the running board with his arms on the spout. He was leaning on the spout. At the time I saw him he was about four feet away from the dome. It is only necessary for the loader or helper to put his head near enough the dome to see the shell of the car, to see whether or not the gasoline is coming up to the shell. With this car, I should judge he could have his head about 18 inches away from the dome, but could put his head over the dome if he wanted to. If he would put his head over the dome he would not have to be there but a second, just glance into the dome. He would probably not have to glance into the dome more than three or four times when the car was one-half full. I think he could have his head as far as 18 inches away from the dome to see whether the gasoline had reached the proper point. I think the opening in the dome is about 18 inches in diameter. He could put his head over the dome and look down if he wanted to, but that would only take long enough to take in the conditions down below.”
He testified that when a tank is full and the helper has given the signal to shut the pump down, and the pumper does this, it is the helper’s duty to go and close the valve on the loading rack, and shut the valve whether or not the pumper shuts off the pump; that in order to do this, the helper goes from the tank car to the loading rack on the board; that a man could get down from the car by going to the stairway (ladder) on the car instead of walking across the board; that if the spout was already in the car and the oil turned on when Ross Cash went upon the car, there would be no occasion for him to put the board across if he climbed up from the ground, but if he went from the car to the loading rack there would be occasion for him to put the board across; that he had seen cars spouted and had spouted them himself without putting down the running board, but under “ordinary conditions the running board is put across. It is much easier to spout the car with the running board down.” By “running board” the witness refers tp the board used to go from the loading rack' to the running board on the car. It is the duty of the helper when the car is full of gasoline up to the shell to go over to the loading rack and turn off the valve. ' With the board across you. would have to go 6 or 8 feet to reach the valve. If, instead of going across on the board, he climbs down off the car by the ladder, and then up the stairway to the loading rack where the valves are, the witness thought it would be' about 100 feet. When the pumper and the helper are working together, as a general rule, the helper does the loading and the pumper stays in some convenient place and sometimes stays in the pump house. The man who spouts the car is the one who. is supposed to put the board across. He further' testified: “I have heard of men loading tank cars becoming dizzy from gas fumes. I never heard of ■them being overcome. I have heard that they said they got dizzy.”
A deputy, state oil inspector, who was familiar with the loading rack in question, was called to testify to the presence of crude oil in the ditch on the issue which was not submitted to the jury. Over the objections of defendant, he testified to the conditions at other refineries; that ordinarily there are about two men to load a car, “That is, it’s about the usual way; they have one at the pump house and one at the car.” The pumper stops the pump, “as I have observed, when he is given the signal from the man on the car. If the pumper is not there, they have some one else there near to the pump, and when the signal is given, the pumps are stopped.” He testified, that if a car was running over upon a hot tank or outside shell of the car, there would ordinarily be more fumes than usual, and it was possible that a person' on top of the car would, if that condition occurred, be somewhat affected from the fumes, depending Upon the length of time he was there; that with the car running over and a 3-inch stream of gasoline running into it, some spray of the gasoline would come from the manhole. He further testified:
“It is the duty of the loader of a tank car of gasoline when the tank car is full up to the shell, or up to the dome, and there is no pumper in sight to take any signals, to make an effort to get the gasoline stopped from wasting. He could do this by going to the pumps or valves and closing them. These valves are on the loading rack and I don’t recall any refinery that don’t have them. They are up about shoulder high from the loading rack. The farthest distance he would have to go from loading the car to the valves would be fifteen feet, the shortest distance would be eight or ten feet.”
His. testimony is that he had made probably 5,000 tests of gasoline from tank cars at various refineries and always reached down in through the dome to get gasoline, sometimes using a quart measure and dipping it up.
“The state does not send anybody with me to attend me on top of the tank car in.case I would be overcome with gasoline, and I don’t take anybody with me. I never knew in all of my experience of any one becoming overcome by gasoline, loading a tank car out in the open air. That is standing on top of the car and staying on top. I have heard of men becoming overcome in a closed place, from the fumes. That is when they; send a man down in a tank car to clean it out and when men are sent into a tank car to clean it out, they have an attendant on the outside of the car. ... It might be necessary where he is finishing out a car for a man to have his head over the opening in the dome, but I don’t think it would be necessary for him to put his head directly over it, but he could see in in a very short time¿ just an instant. Just look over this way and then come back. A loader does not have to take any particular place near the.dome while the car is being loaded. If the wind Were blowing in a certain direction so it was blowing the gasoline towards him, it would be possible for him to take another position, on the running board where that would not happen, and I naturally think that he would do this, and I don’t see anything to prevent him from doing so.”
Other testimony was offered, but none of it tended in any manner to disclose how Ross Cash cáme to his death, or what caused him to fall from the tank car. With their general verdict, the jury returned the following findings:
“Q. 1. Do you find that it was a rule of the defendant company in force at the time of the death of Ross Cash, for the loader of a car of gasoline to lay the foot board for a passageway between the tank car and the loading rack? A. No.
“Q. 2. Is it not a fact that the defendant by rule prohibited the loaders from jumping from the loading rack to the tank car and from the tank car to the loading rack? A. No.
“Q. 3. Does the evidence show that loaders of tank cars ofl gasoline, at times during the loading of cars, sit upon the open dome through which the gasoline fumes come, without injury to themselves and without being overcome by the fumes from the gasoline? A. Yes.
“Q. 4. Do you find from the evidence in this case that prior to the death of Ross Cash, any loader of gasoline for defendant or for any refinery, to the knowledge of defendant, while standing in the open air as Ross Cash was at the time he was engaged in loading this car, ever became overcome by the fumes of gasoline? A. No evidence to show what defendant knew.
“Q. 5. Do you find that it is the custom of refineries to furnish an attendant for one loading a tank car of gasoline in the open air for the purpose of protecting him in case he should become overcome by gasoline fumes? A. Yes, for that and other duties.
“Q. 6. Do you find that the loader’s duties at times required him to load a car with gasoline without the assistance of the pumper, the one loader himself looking after the pump? A. Yes.
“Q. 7. How far away from the opening of the dome of a tank car do you find that a loader can stand and still see into the dome and determine whether the gasoline has reached the proper height? A. From six inches to eighteen inches.
“Q. 8. Do you find from the evidence that it was the duty of a loader of a tank car of gasoline, at the time when the gasoline reached the level of the bottom of the dome, in case the pumper was not in sight to take his signal as to the condition of the cqr, to at once cross over to the loading rack and there turn the valve and thus shut off the flow of gasoline into the car? A. Yes.
“Q. 9. How far from the tank car do you find that the pumper was accustomed to stand to take the’signal from the loader that it was time to shut down the pump? A. From 300 to 400 feet.
“Q. 10. If you find that the defendant was negligent, please state of what the defendant’s negligence consisted. A. The defendant failed and neglected to provide the customary number of men at or near the tank car or loading rack in question. Also the pumper not being at a place where he could receive a signal from Ross Cash.
“Q. 11. Do you find that it was customary in well appointed and managed refineries — similar to the defendant’s — to use more than one man when tank cars were being loaded with gasoline? A. Yes.
“Q. 12. Do you find that it was the' duty of the pumper for the defendant to watch Ross Cash while he was upon the tank car that was being loaded with gasoline? A. Yes.”
Complaint is made that the answers to questions 1, 2, 5 and 10 are none of them sustained by the evidence and are all contrary to the evidence, and that the court erred in not sustaining the motion to set them aside; and there is complaint of the admission of evidence showing the methods used in loading tank cars at other refineries. These rulings, in our opinion, need not be reviewed. A more important question arises over the demurrer to the evidence, which the court overruled.
In order to show that the negligence complained of resulted in the death of Ross Cash, it was necessary to show, either by direct or circumstantial evidence, what caused him to fall into the ditch. The evidence shows beyond question that while in an unconscious state and lying in the ditch, he inhaled mud, water and gasoline, and was thereby suffocated. Of course he did not inhale the gasoline while he was on top of the car; he may have inhaled fumes of gasoline there, but not the gasoline itself. The plaintiff claims that deceased fell from the car because he was overcome by the fumes of gasoline arising from the dome while he was standing there or looking into it.
The defendant suggests a number of theories which might account for the fall and death of deceased, some of which are fully as reasonable and as consistent with the known facts as the theory that he fell.because he was overcome by fumes of gasoline. The evidence did not show that men filling cars in the open air are likely to be overcome by fumes of gasoline to such an extent that they become unconscious. On the contrary, the evidence of the- witnesses is that they never knew of any one being overcome while filling a car in the open air. The plaintiff, therefore, suggests that Ross Cash might have fallen from the running board of the tank car while attempting to reach the ladder in order to get to the ground and go upon the loading rack for the purpose of shutting off the valve. The evidence shows he had neglected to place the board between the loading rack and tank car; and that his duties required him, whether or not the pumper shut down the pump, to go upon the loading rack and shut off the valve; that when the plank or board had not been laid across, there were only two ways for him to do this, either to go down to the ground from the car by the ladder, and up on the loading rack by a stairs, or jump across from the running board on the car to the platform of the loading rack. The distance was between 3 and 4 feet, and the platform of the loading rack was several inches higher than the' running board on the tank car. Ross Cash may have discovered suddenly that the tank was running over, and he may have áttempted to jump across this space to the higher level of the loading rack; he may have missed his footing and fallen into the ditch. The evidence is that cars were sometimes spouted without the board being placed between the rack and the tank car, and that sometimes employees jumped across from one to the other. It is suggested Ross Cash may have dozed while standing in the comfortable position with his arms across the pipe waiting the expiration of the 40 minutes it required to fill the tank, and lost his balance and fallen. These theories are referred to because they merely show the extent to which speculation and conjecture might-lead from the facts and circumstances in evidence. The case cannot be distinguished in principle from a half dozen others, in which it has been held that it is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially when the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party. (Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001; Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101; Norman v. Railway Co., 101 Kan. 678, 168 Pac 830.)
In Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101, it was held that, “where there is no substantial evidence, direct or circumstantial, tending to prove a material fact in issue, a finding that it exists cannot be sustained.” (syl. ¶ 2.) In the opinion, Justice Benson said:
“Presumptions, as understood in the law of evidence, must have substantial probative force as distinguished from surmise. If a fact may be established by inference from the presumption' of another fact, it. should at least be a logical deduction and reasonably certain in the light of all other proper presumptions and of all collateral facts. The chain of presumptions ought not to be extended into the region of conjecture. (Diel v. Mo. Pac. Ry. Co., 37 Mo. App. 454.) A fact is not proved by circumstances which are merely consistent with its existence. (Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600.), The lamentable death of this man may have been caused by some mischance after the uncoupling was effected. It may have been caused in the manner claimed by the plaintiff. Possibly one conjecture is as reasonable as another, but the evidence does not reveal the cause of his fall. In the absence of such evidence there can be no recovery. (Hart v. Railroad Co., 80 Kan. 699.) It has been said recently by this court:
“ 'It is not sufficient to show circumstances which would indicate that the other party might have been guilty of negligence, especially when the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party.’ (Brown v. Railroad Co., 81 Kan. 701, syllabus.) ” (p. 233.)
In Brown v. Railroad Co., supra, the body of a passenger was found lying close to the railway track, the ground indicating that the body had been dragged about 30 feet. The coach in which he had been was part of a vestibule train. No one saw him fall. It was claimed that the employees of the train negligently opened the vestibule before the train arrived at the depot, thereby inviting passengers, intending to leave, to go into the vestibule; that the train was running unreasonably fast, and that the deceased was waiting in the vestibule intending to alight; that the train was stopped with unnecessary suddenness, and he was thrown out of the vestibule and under the. wheels of the car; all of which furnished a quite reasonable theory to account for his death, if there had been any evidence to establish it, except the fact that he had been on the train, the vestibule was opened, and his body was found where it might have fallen. It was held that the evidence did no more than show circumstances indicating that the death of the passenger might have been caused by the specific negligence alleged against the railway company, but that this was not sufficient.
In Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251, the plaintiff was injured by the explosion of defendant’s powder mill. There was no evidence to prove what actually caused the explosion. The same principle was applied,-and it was held that, so far as the evidence disclosed, the explosion may have been caused by any one or more of the facts of negligence claimed, but this was not sufficient, because “a fact is not proved by .circumstances which are merely consistent with its existence. (Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101.)” (p. 292.)
It follows that the demurrer to the evidence should have been sustained. The judgment is reversed and the cause remanded with directions to enter judgment for the defendant.
Johnston, C. J., dissenting. | [
-16,
104,
64,
-81,
42,
-32,
42,
-102,
117,
-91,
-27,
19,
-83,
-47,
21,
35,
-5,
127,
-15,
43,
-9,
-93,
71,
-96,
-109,
-13,
57,
-121,
-80,
72,
126,
-41,
76,
32,
-118,
-107,
102,
74,
69,
80,
-116,
37,
-55,
-32,
25,
26,
48,
122,
22,
15,
49,
-98,
67,
46,
25,
102,
45,
44,
123,
-83,
-64,
-16,
-117,
5,
95,
18,
-96,
38,
-108,
-89,
-40,
27,
-100,
-111,
40,
-8,
48,
-90,
-128,
-12,
107,
-87,
8,
-30,
102,
32,
21,
77,
-95,
-104,
15,
-98,
-113,
-89,
-66,
56,
9,
-89,
-106,
-97,
123,
22,
14,
124,
-40,
29,
93,
-68,
3,
-117,
-74,
-79,
77,
61,
-100,
-7,
-21,
-89,
52,
101,
-103,
-22,
92,
69,
114,
-97,
-33,
-110
]
|
The opinion of the court was delivered by
Davis, J.:
The issue we must decide today involves a question of first impression under the provisions of the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. Data Tree, LLC (Data Tree) filed suit to obtain bulk records contained in 20 separate rolls of microfilm because the Sedgwick County Register of Deeds was exacting redaction fees to eliminate social security numbers, mother’s maiden names, and dates of births from the documents requested. Data Tree appeals from summary judgment granted in favor of the Sedgwick County Register of Deeds and the denial of Data Tree’s requested attorney fees. Our jurisdiction is based upon K.S.A. 20-3018(c).
Data Tree is a subsidiaiy of First American Corporation, which purports to be the nation’s leading provider of business information by supplying businesses and consumers with the information and resources that affect the major economic events of peoples’ fives such as getting a job; renting an apartment; buying a car, house, boat, or airplane; securing a mortgage; opening or buying a business; and planning for retirement. First American has nearly25,000 employees in the United States and abroad. In 2002, it had revenues of $4.7 billion.
Data Tree is engaged in the business of collecting and providing real estate information and, in the course of such business, gathers and disseminates facts obtained from public records to its clients. Data Tree’s business is conducted in part by purchasing copies of public records maintained by various register of deeds’ offices in the State of Kansas, including Sedgwick County.
Bill Meek is the duly elected Sedgwick County Register of Deeds (Register of Deeds). The Register of Deeds’ office maintains the following types of recorded documents: Uniform Com mercial Code (UCC) filings including UCC releases or satisfactions; birth and death certificates; militaiy discharges; federal and state tax hens and tax hen releases or satisfactions; mortgages and mortgage releases or satisfactions; various judgments or hens and releases or satisfactions thereof; various deeds, plats, and indexes; miscehaneous notices and affidavits; affidavits of equitable interests; bankruptcy, probate, and miscellaneous court documents; powers of attorney; and refiled, corrected documents. Many of these documents are likely to contain social security numbers, mothers’ maiden names, and dates of births.
In March 2001, Data Tree asked for and received copies of microfilm records from Microfilm Services, Inc. (Microfilm), a local vendor who created microfilm copies of the public records maintained by the Register of Deeds for the period of January 1990 until February 2001. On April 10, 2001, Microfilm informed both Data Tree and the Register of Deeds of the costs involved in providing the records. The total cost for 1,035 microfilm rolls was $13,237.50 or $12.50 per roll plus other fees. No redaction fees were mentioned in this letter.
In March 2000 and at an undetermined time in 2001, one or more persons complained to the Register of Deeds about being solicited for commercial purposes based on information from the pubhc records held by the Register of Deeds. This information was turned over to the district attorney, and an investigation was conducted. As a result of the investigation, it was suggested, although it may have been factually inaccurate, that another subsidiary of First American was selling or providing copies of the documents on microfilm to other entities and that one of the other entities was using the data to sohcit sales.
In December 2002, First American again requested all recorded documents from a certain time period in 2001, with the exception of birth records, marriage certificates, and military discharges. In a January 14, 2003, letter, First American Real Estate Solutions general counsel responded to the Register of Deeds’ requirement that First American execute an affidavit prohibiting the selling or offering for sale any lists of names and addresses derived from public records. See K.S.A. 2004 Supp. 45-230. First American ar gued it should not be required to sign such an affidavit, citing Kansas Attorney General Opinion No. 89-47, K.S.A. 21-3914 (now repealed; L. 2003, ch. 126, sec. 5), and K.S.A. 45-215. In a January 17, 2003, letter, the assistant county counselor, for the Register of Deeds, responded that the affidavit requirement would not be waived.
In a March 24, 2003, letter, First American submitted an executed affidavit on behalf of Data Tree and request for the following records: “The following ranges for 2001 on film or CD [identified as] 1960138-1963532 [and] 1967128-193738.” This request included all recorded instruments from March 9, 2001, to April 10, 2001, and from April 24, 2001, to May 14, 2001. These records were contained on 20 separate rolls of microfilm.
In an April 22, 2003, letter, the Register of Deeds informed the contracts administrator of First American Real Estate Solutions that many of the requested records contained personally identifying information such as social security numbers, mothers’ maiden names, and dates of births which needed to be redacted from the records. The Register of Deeds advised First American that it would have to pay the costs for converting the microfilm to digital information in order to remove or redact the portions that were confidential and not subject to release pursuant to the KORA. The Register of Deeds does not have the capability of converting the microfilm requested and employs an outside firm to accomplish the conversions and redactions. The estimated costs for this process plus the Register of Deed’s $50 fee were $22,050.
First American asked that the redaction fees be reconsidered. The assistant county counselor once again explained that the requested records contained a great deal of personal information, not subject to disclosure, citing two provisions of the KORA; see K.S.A. 2004 Supp. 45-221(a)(30), which provides an exception for information that “would constitute a clearly unwarranted invasion of privacy” and K.S.A. 2004 Supp. 45-221(d), which requires a public agency to separate or delete such personal information prior to providing any requested records subject to disclosure. This May 8, 2003, letter explained that the Register of Deeds did not have the capacity to redact the information from the microfilm without printing out each document and redacting the material by hand which would cost more than the estimate previously provided and suggested that First American contact the outside company personally and attempt to negotiate a better deal.
Counsel for Data Tree and First American responded expressing the history of the dispute and his legal opinion. Counsel for the Register of Deeds responded with further legal analysis, concluding that the records would not be delivered without redaction.
In 2003, the Register of Deeds changed its policy and no longer provided copies of documents without redaction of personal or private information to anyone without an agreement as to the use and reproduction of said documents. The Register of Deeds has entered into agreements with title companies, licensed abstractors, attorneys, banks, and mortgage companies to furnish records without the redaction of social security numbers, mothers’ maiden names, and dates of births, provided that such entities agree concerning the reproduction of personal information from said documents and indemnifying the Register of Deeds from liability for any misuse. This information has been provided because those entities generally already have the personal identifying information of the parties to the transaction and there has been a tacit waiver by the parties to this information. On July 17, 2003, the Register of Deeds sent Microfilm a letter directing that copies of such documents were not to be provided to outside entities without redaction unless approved by the Register of Deeds.
On October 8, 2003, Data Tree filed its action against the Register of Deeds claiming a violation of the KORA, K.S.A. 45-215 et seq., and seeking a declaratory judgment that (1) the Register of Deed’s actions were contrary to law and the duties of its office; (2) the requested documents were public records which must be disclosed and copied at a reasonable charge; and (3) alternatively, the Register of Deeds must bear the costs of deleting the personal information. Data Tree prayed for an order enjoining the Register of Deeds from any further violations of the KORA and for an order in mandamus compelling the Register of Deeds to comply with the law and Data Tree’s requests for such public records now and in the future.
The Register of Deeds filed a motion for summary judgment. Data Tree then filed a motion for summary judgment and a request for a hearing on attorney fees. After a hearing, the district court granted the Register of Deed’s motion of summary judgment, denied Data Tree’s motion for summary judgment and request for attorney fees, and dismissed Data Tree’s complaint, reasoning:
“1. It is the intent of the legislature pursuant to K.S.A. 45-216 that records be open for inspection by any person unless otherwise provided by the provisions of the Kansas Open Records Act (KORA), and that the provisions of said act shall be liberally construed and applied to promote such policy.
“2. The legislature clearly created certain exemptions which are primarily set out in K.S.A. 2003 Supp. 45-221. Said exemptions must be given meaning or anything held by the government would be open.
“3. [The Register of Deeds] has an obligation to preserve the records and to comply with the provisions of K.S.A. 2003 Supp. 45-230.
“4. The records sought by [Data Tree] are subject to the open records provisions of the Kansas Open Records Act, but sensitive information may be redacted before distribution to the public. The protection of private information including social security numbers, dates of birth[s] and mothers’ maiden names is clearly within the purview of the provisions of K.S.A. 2003 Supp. 45-221(a)(30).
"5. The change in position taken by the [Register of Deeds] in 2003 as to the need for redaction was not made in bad faith and was taken during the ordinary course of his duties. No attorneys fees are to be awarded.
“6. Pursuant to K.S.A. 45-219, all costs of producing records including the cost of redaction are to be borne by [Data Tree] as the requestor — which is similar to litigation costs where the party requesting the records is responsible for the cost of production.
“7. [Data Tree] is entitled to copies of the records requested, subject to one of two options set forth below:
A. [Data Tree] may obtain bulk copies, at cost, of the microfilm provided a duly authorized representative of [Data Tree] enterfs] into the standard agreement with [the Register of Deeds] as to the use and reproduction of said records and providing for the redaction of social security numbers, mothers’ maiden names, and dates of birth[s]; or
B. [Data Tree] may, upon payment of the full estimated cost of producing the records including the cost of redaction, obtain copies of the records requested with the social security numbers, mothers’ maiden names, and dates of birth[s] redacted.”
Data Tree raises the following issues in this appeal: (1) The Register of Deeds has no authority to redact recorded instruments; (2) K.S.A. 2004 Supp. 45-221(a)(30) does not apply to the Register of Deeds and is no basis for denial of access to copies of public records; (3) if redaction is required, the cost must be borne by the Register of Deeds; and (4) Data Tree is entitled to attorney fees for denial of access.
(1) Authority to Redact
Data Tree contends the Register of Deeds has no discretion to deny access to any recorded instruments based on the exception to disclosure in K.S.A. 2004 Supp. 45-221(a)(30) because the sole purpose of a register of deeds is to place voluntarily submitted documents on the public record for the purpose of imparting notice to the public of their contents. The Register of Deeds does not dispute that the purpose of his office is to put the public on notice of instruments submitted for recording; however, in most cases, information such as social security numbers, mothers’ maiden names, and dates of births are not mandated by law or the policy of the Register of Deeds. According to the Register of Deeds, there is nodring in the provisions of the KORA to suggest that K.S.A. 2004 Supp. 45-221(a)(30) applies only to certain public records.
Data Tree further argues the duties of a register of deeds to “record” equate with imparting notice, which is meaningless if a register of deeds has discretion concerning which parts of recorded documents serve to put the public on notice of their contents. K.S.A. 19-1204(a) states:
“The register of deeds shall have custody of and safely keep and preserve all the books, records, deeds, maps, papers and microphotographs deposited or kept in the office of the register of deeds. The register of deeds shall also record, or cause to be recorded, in a plain and distinct handwriting or in another legible manner, in suitable books or other accessible format to be provided and kept in the office of the register of deeds, all deeds, mortgages, maps, instruments and writings authorized by law to be recorded in the office of the register of deeds and left with the register of deeds for that purpose, and shall perform all other duties as are required by law.”
When third parties submit information to a register of deeds for recording, Data Tree contends it should be up to the third party to omit any personal or private information such as social security numbers if the filer does not wish the information to appear in the public filing. Further, these third parties have paid a fee for the purpose of making the document public, and Data Tree contends the Register of Deeds does not have the discretion or authority to deprive these third parties of their right to public recording.
Most of the arguments advanced by Data Tree under this issue would seem to fall more appropriately under the second issue it raises concerning the application of K.S.A. 2004 Supp. 45-221(a)(30). Our main concern under this issue is twofold: Does Data Tree’s request for information involve a public record as that term is defined by K.S.A. 45-217(f)(1) and, if so, does K.S.A. 19-1204 prevent application of the exception to disclosure contained in K.S.A. 2004 Supp. 45-221(a)(30) of the KORA?
K.S.A. 45-217(f)(1) defines “[p]ublic record” to mean “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency . . . .” It is beyond dispute that the Register of Deeds’ office is a public agency and that the documents filed for record in that office are public records. Data Tree provides no support for its contention that the Register of Deeds’ public records come under the KORA but are not subject to the disclosure exceptions under K.S.A. 2004 Supp. 45-221. Under K.S.A. 45-217(f), it is clear that the records kept by the Register of Deeds are public records as defined by the KORA and therefore are subject to its provisions, including K.S.A. 2004 Supp. 45-221(a)(30). Nothing in K.S.A. 19-1204 concerning the duties of a register of deeds provides otherwise. The issue in this case becomes whether the exercise of discretion by the Register of Deeds in requiring redaction prior to disclosure of the requested records was lawful, which is the subject of our inquiry into the second issue raised by Data Tree.
(2) K.S.A. 2004 Supp. 45-221(a)(30)
Data Tree contends the inquiry as to whether a public agency may withhold certain personal information from disclosure under K.S.A. 2004 Supp. 45-221(a)(30) is whether there is a reasonable expectation of privacy with regard to that information. The district court found the exceptions to disclosure set out in 45-221 must be given meaning or anything held by the government would be open. The district court determined that “sensitive information” may be redacted before distribution to the public and, in this case, that private information including social security numbers, mothers’ maiden names, and dates of births clearly came within the purview of the disclosure exception in 45-221(a)(30).
K.S.A. 2004 Supp. 45-221(a) provides: “Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose: . . . (30) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” We note that K.S.A. 45-221 was amended three times in 2004; however, the amendments have no bearing on this case. See K.S.A. 2004 Supp. 45-221 (L. 2004, ch. 171, sec. 30); K.S.A. 2004 Supp. 45-221g (L. 2004, ch. 177, sec. 1); K.S.A. 2004 Supp. 45-221h (L. 2004, ch. 151, sec. 1).
The KORA, K.S.A. 45-215 et seq., was passed by the legislature to ensure public confidence in government by increasing the access of the public to government and its decision-making processes. Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, Syl. ¶ 2, 69 P.3d 578 (2003). The primary focus of case law interpreting the KORA is on the overriding public policy set forth in K.S.A. 45-216(a), which provides: “It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy.” This is reiterated in K.S.A. 45-218(a), which states in part: “All public records shall be open for inspection by any person, except as otherwise provided by this act.” See Telegram Publishing Co., 275 Kan. at 785; Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 416, 997 P.2d 681 (2000).
Determining whether the district court correctly applied the KORA and a particular exception to disclosure is a question of law involving interpretation of statute. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, Syl. ¶ ¶ 3, 14, 50 P.3d 66 (2002); Cypress Media, Inc., 268 Kan. at 416. The KORA provides specific exceptions to disclosure; however, the exceptions are to be narrowly interpreted, and the burden is on the public agency opposing disclosure. Telegram Publishing Co., 275 Kan. at 785; Wichita Eagle & Beacon Publishing Co., 274 Kan. 194, Syl. ¶ 3.
K.S.A. 2004 Supp. 45-221(a), which contains the statutory exceptions to disclosure, sets out in detail 46 categories of records which public agencies are not required to disclose. The KORA does not prohibit disclosure of records contained within these exceptions but makes their release discretionary with the agency’s official records custodian. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 63-64, 734 P.2d 1083 (1987).
Only two Kansas cases have had the opportunity to address the disclosure exception at issue here, Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan. App. 2d 950, 952-53, 937 P.2d 1257 (1997), and Burroughs v. Thomas, 23 Kan. App. 2d 769, 772, rev. denied 262 Kan. 959 (1997). In Southwest Anesthesia, the Court of Appeals found the exception in 45-221(a)(30) was inapplicable to the open records at issue because the medical center did not present any testimony or evidence in support of this exception. 23 Kan. App. 2d at 953.
In Burroughs, a coroner filed an autopsy report concerning Burroughs’ death. Burroughs’ spouse sought disclosure of the coroner’s records. In determining whether an exception under 45-221(a)(30) applied in this situation, the Court of Appeals found that generally only the person whose privacy was invaded can bring a cause of action for invasion of privacy. Because Kansas does not provide for survival of a cause of action for invasion of privacy, the Court of Appeals concluded the exception to disclosure of public records in 45-221(a)(30) did not apply. 23 Kan. App. 2d at 772. Neither Southwest Anesthesia nor Burroughs is helpful in this case.
Acknowledging the paucity of case law on this particular exception, Data Tree cites several Kansas Attorney General opinions regarding treatment of 45-221(a)(30). The Supreme Court is not bound by the conclusions of attorney general opinions; however, the opinions are persuasive authority. See General Building Contr., LLC v. Board of Shawnee County Comm’rs, 275 Kan. 525, 536, 66 P.3d 873 (2003).
In Att’y Gen. Op. No. 2002-55, the Kansas Attorney General determined the issue under 45-221(a)(30) was whether the information is of a “highly personal nature.” Looking at federal law analysis of the protection from state intrusion into fundamental aspects of personal privacy and whether such information is given protection, the decision maker considers: “(1) if the party asserting the right has a legitimate expectation of privacy [in that information], (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner.” If the first factor is not met, the second and third factors need not be addressed. The Attorney General considered that the information sought in this particular inquiry was water usage, billing history, and contact information. Another subsection of 45-221 already required release of this information if requested. See K.S.A. 2004 Supp. 45-221(a)(26). Furthermore, this information was to be shared between municipally operated utility companies for use in billing customers and not disseminated to die general public. The Attorney General concluded customers had no reasonable expectation that this information would remain confidential.
Interpreting the operative phrase of 45-221(a)(30) in Att’y Gen. Op. No. 2001-33, the Kansas Attorney General stated: “We believe that a high standard is suggested by the words, ‘clearly unwarranted invasion of personal privacy.’ The privacy interest is one that applies only when release would reveal truly intimate details, or present some unusual danger.” The Attorney General derived this standard from Connecticut, which had adopted the Restatement (Second) of Torts § 652D (1977) definition of a tort action for the invasion of personal privacy. Connecticut was attempting to establish an objective standard to determine what information can be closed as constituting an “invasion of personal privacy” under the Freedom of Information Act (FOIA), see 5 U.S.C. § 552 (2000), and held that home addresses of public employees were open under the Act as such disclosure was not “highly offensive.”
The records sought in that Kansas Attorney General opinion were the membership list of the Coffeyville City Golf Course, including home addresses. The Attorney General noted that Kansas had a statute, K.S.A. 21-3914 (now repealed; L. 2003, ch. 126, sec. 5), which made it a crime to obtain a list of names and addresses from public records “for the purpose of offering for sale any property or service to the persons therein listed.” (Kansas has now enacted civil penalties for such violations as part of the KORA. See K.S.A. 2004 Supp. 45-230; L. 2003, ch. 126, sec. 1.) Consequently, the Attorney General found that this statute would have no meaning if this information was closed and, therefore, in Kansas names and addresses are open absent special circumstances. Interestingly, the opinion notes that Att’y Gen. Op. Nos. 98-38 and 87-168 had previously concluded drat social security numbers may be closed because of the danger of identity theft. See Atty Gen. Op. No. 2001-33.
Data Tree discusses two Kansas Attorney General opinions on social security numbers: One finding no expectation of privacy in social security numbers when, according to Data Tree, the number is contained on a document that the individual “knows and expects that others will see,” the other finding no public interest in disclosing the social security number of a crime victim. See Att’y Gen. Op. Nos. 98-38 and 97-39.
Atty Gen. Op. No. 97-39 stated that “[g]iven the plethora of laws that require disclosure of one’s social security number, it is our opinion that an individual has no reasonable expectation of privacy in his or her social security number as against the government when applying for a professional, occupational, or marriage license.” (Emphasis added.) The opinion was addressing 1997 S.B. 140, sec. 6, requiring social security numbers on certain license applications, as part of enactments facilitating the ability of the Kansas Department of Social and Rehabilitation Services to enforce child support obligations. K.S.A. 45-221(a)(30) was not an issue and not discussed.
Data Tree does not discuss a Kansas Attorney General opinion that determined social security numbers supplied in connection with the annual registration of attorneys are not subject to disclosure pursuant to 45-221(a)(30) at the discretion of the Clerk of the Appellate Courts. See Att’y Gen. Op. No. 87-168. The opinion indicated the purpose of the privacy exception has been stated as:
“ ‘[The privacy exception] is intended to exempt information in government records that relates to tire intimate details of a person’s private life. The public’s right to have access to information contained in government records is thus qualified by protection of an individual’s right to maintain the privacy of personal matters having no bearing on matters of public interest.’ Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L. Rev. 205, 256 (1985).” Att’y Gen. Op. No. 87-168.
Noting that § 7 of the federal Privacy Act of 1974, see 5 U.S.C. § 552a (2000), gives an individual a privacy interest in his or her social security number, the Attorney General found the release of an individual’s social security number, in this instance, would be an invasion of personal privacy.
The attorney registration form also includes an attorney’s date of birth, among other information. The Attorney General further opined:
“We know of no law which prohibits disclosure of the other information contained in the list. The information does not fall under the privacy exception as disclosure would not constitute a ‘clearly unwarranted invasion,’ and the public’s right to know outweighs any privacy interests in the information. ‘Information such as place of birth, date of birth, date of marriage, employment history, and comparable data is not normally regarded as highly personal [dependent upon where it is found] . . . .’ Department of State v. Washington Post Co., 456 U.S. 595, 600, 102 S. Ct. 1957, 1961, 72 L. Ed. 2d 358 (1982).” (Emphasis added.) Att’y Gen. Op. No. 87-168.
Data Tree cites Ohio Attorney General Opinion No. 96-034, which it claims is “virtually identical” to this case. The inquiry in the Ohio case asked whether a county recorder has the obligation to redact social security numbers on recorded documents “prior to recording.” The Ohio Supreme Court had issued a decision in State ex rel. Beacon Journal Publishing Co. v. Akron, 70 Ohio St. 3d 605, 640 N.E.2d 164 (1994), that reasoned because disclosure of employees’ social security numbers would violate their constitutional rights to privacy, release of the numbers would be prohibited by federal law. Therefore, for purposes of Ohio’s public records law, release of social security numbers comprised records the release of which is prohibited by state or federal law. Cf. K.S.A. 2004 Supp. 45-221(a)(1) (public agencies are not required to disclose records, the disclosure of which is specifically prohibited or restricted by federal or state law, including rules of the Kansas Supreme Court to restrict or prohibit disclosure).
The Ohio Attorney General determined that State ex rel. Beacon Journal Publishing Co. did not impose an obligation to remove social security numbers on documents submitted for recording because a similar expectation of privacy did not exist. Because a county recorder receives and records instruments in accordance with specific directives and recording the instruments is for the purpose of keeping public records, the Attorney General reasoned a person who furnishes his or her social security number in connection with a mortgage, financing statement, or other recordable instrument which is then submitted for recording should not reasonably expect the number to thereafter remain a private matter. Therefore, it was the context within which a social security number is furnished that determines a person’s expectation of privacy. Oh. Att’y Gen. Op. No. 96-034.
The Register of Deeds correctly notes that Data Tree’s reliance on the Ohio Attorney General opinion is misplaced because the question presented there was whether the county recorder was “required” to remove or redact social security numbers that appear on mortgages and other documents “before” recording the document. The opinion does not address the issue of discretionary redaction of such information upon a request to purchase bulk copies of public records maintained by the Register of Deeds.
Data Tree would find instructive Professor Frederickson’s suggestion that
“the words ‘clearly unwarranted’ appear to limit the application of the privacy exception to records containing personal information, the release of which would serve no public purpose. A balancing formula is created and appears to tilt toward disclosure of records, because that result serves the overall intent of the act.” Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 Kan. L. Rev. 205, 256 (1985).
The Register of Deeds points out that Data Tree has not suggested a public purpose for release of social security numbers and, to the contrary, that no public purpose exists for the release of social security numbers, mothers’ maiden names, and dates of births.
Professor Frederickson also stated that the KORA was based in part on the Kentucky Open Records Act. See 33 Kan. L. Rev. at 207. The Register of Deeds contends Kentucky courts have held that the release of social security numbers may be restricted as an invasion of personal privacy.
In Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994), an attorney requested the Kentucky Department of Workers Compensation provide him access to injury reports filed with the department which contained personal information including names, home addresses, telephone numbers, dates of births, social security numbers, and more. The Department denied the request in part based on an exemption from Kentucky open records on the grounds that access to the reports would constitute a “clearly unwarranted invasion of personal privacy.” The district court granted summary judgment in favor of the Department.
To determine whether the requested information constituted a “clearly unwarranted invasion of personal privacy,” the Kentucky Court of Appeals applied the analysis from its Supreme Court in Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992). The first determination is whether the information is of a “personal nature.” If so, the next determination is whether public disclosure “would constitute a clearly unwarranted invasion of personal privacy.” This requires a “comparative weighing of antagonistic interests” where the “privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good,” and the circumstances of a given case affect the weighing or balancing of interests. 902 S.W.2d at 828.
The Kentucky Court of Appeals found that the information contained in the injury reports was clearly of a personal nature. Moving to the next determination, the court stated the analysis did not turn on the purpose of the request for information or the identity of the person making the request. Rather, what should be considered is the extent to which disclosure would serve the principal purpose of the open records act, an approach the United States Supreme Court has taken in analyzing requests under the FOIA, citing Dept. of Justice v. Reporters Committee, 489 U.S. 749, 774-75, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). 902 S.W.2d at 828.
Applying the balancing or weighing portion of its'analysis, the Kentucky Court of Appeals found the information contained in the injury reports would reveal little or nothing about an agency’s conduct and the public interest in disclosure was de minimis at best. 902 S.W.2d at 829. Weighing the interests of the injured workers, particularly the release of the workers’ social security numbers, the court stated:
“Those nine digits today represent no less than the keys to an information kingdom as it relates to any given individual. Access to a wealth of data compiled by both government agencies and private enterprises such as credit bureaus is obtainable simply upon presentation of the proper social security number.” 902 S.W.2d at 829.
Data Tree appears to advocate applying principles dealing with the tort of invasion of personal privacy to the analysis of what would constitute a “clearly unwarranted invasion of personal privacy.” However, this would divorce the analysis from the underlying public purpose of the KORA. See Telegram Publishing Co., 275 Kan. 779, Syl. ¶ 2. It appears that courts generally analyze the issue by balancing the privacy interests of the individual with the public’s need to know. See Kentucky Bd. of Examiners of Psychologists, 826 S.W.2d 324; 33 Kan. L. Rev. at 256; Annot., What Constitutes Personal Matters Exempt from Disclosure by Invasion of Privacy Exemption Under State Freedom of Information Act, 26 A.L.R. 4th 666, § 2.
Applying a balancing test to the case at hand, the Register of Deeds seeks to redact social security numbers, mothers’ maiden names, and dates of births from Data Tree’s public records request. Clearly, social security numbers are considered information of a personal nature. In addition to the Attorney General opinions and case law discussed above, Kansas statutes lend support to the personal or private nature of social security numbers. See K.S.A. 2004 Supp. 8-240(b)(1) (social security numbers are not required as identifying numbers on drivers licenses); K.S.A. 2004 Supp. 25-2320(b) (social security numbers must be removed from voter registration records made available to the public); K.S.A. 2004 Supp. 44-550b(a)(4) (social security numbers as an exception to open records under the Workers Compensation Act).
An individual’s social security number, date of birth, and mother’s maiden name are often used as identifiers for financial accounts or for obtaining access to electronic commerce. Most people would consider this information of a “personal nature.” The United States Supreme Court, interpreting the FOIA, stated that information is “ private’ if it is ‘intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public.’ ” Reporters Committee, 489 U.S. at 763-64. Birth dates have been held to be private and their disclosure a clear invasion of personal privacy. See Oliva v. United States, 756 F. Supp. 105, 107 (E.D.N.Y. 1991); Scottsdale Unified School Dist. v. KPNX, 191 Ariz. 297, 955 P.2d 534 (1998). We see no reasons 'why social security numbers, mothers’ maiden names, and dates of births do not fall into this privacy realm.
Data Tree makes a valid argument that the Register of Deeds is unique in that it is the depository of documents specifically for public notice, and that individuals may have some lesser expectation of privacy in these documents. The weighing balance may very well tilt more heavily in favor of full public disclosure where disclosure would serve the principal puipose of the KORA. However, the information being sought by Data Tree is not for its public notice properties but for commercial purposes, i.e., the sale of the information to business interests which have no relationship to the transaction recorded. The public interest to be served by releasing unredacted documents with social security numbers, mothers’ maiden names, and dates of births to a data collection company which intends to sell this information for a profit is at best insignificant.
Based upon the specific facts of this case, we conclude that where balancing the privacy interests of the individual with the public’s need to know or, more specifically, where disclosure of the personal or private information fails to significantly serve the principal purpose of the KORA, nondisclosure is favored if such nondisclosure complies with other requirements of the KORA. We further conclude that under the specific facts of this case, the Reg ister of Deeds did not abuse his discretion in determining that public disclosure of the personal information within the documents requested constituted a clearly unwarranted invasion of personal privacy.
(3) Cost of Redaction
Data Tree contends that if redaction is required by any provision of law, the costs of such redaction must be borne by the Register of Deeds. The district court ruled that pursuant to K.S.A. 45-219, all costs of producing the requested records including the cost of redaction were to be borne by Data Tree as the requester. The district court noted this was similar to the policy applicable to litigation costs where a party requesting records is responsible for the costs of their production.
In general, K.S.A. 45-219(c)(1) provides in part that “each public agency may prescribe reasonable fees for providing access to or furnishing copies of public records” and, in the case of fees for copies of records, “the fees shall not exceed the actual cost of furnishing copies, including the cost of staff time required to make the information available.” K.S.A. 2004 Supp. 45-221(d) provides in relevant part that “[i]f a public record contains material which is not subject to this act, the public agency shall separate or delete such material and malee available to the requester that material in the public record which is subject to disclosure pursuant to this act.”
Data Tree argues that if the Register of Deeds has the duty to “separate and delete” material not subject to disclosure, the duty is an affirmative duty on the part of the Register of Deeds who must bear the costs of such action. According to Data Tree, the plain language of K.S.A. 2004 Supp. 45-221(d) requires the custodian of the records to perform the act of redaction and then “make available” the remaining records but does not require the requester of the records to do anything. Data Tree further argues that K.S.A. 45-219(c)(1) provides for fees to make copies and to make information available, but it does not authorize fees such as those established by the Register of Deeds to withhold copies or to make information unavailable.
In support of its argument, Data Tree first relies on Professor Frederickson’s belief that requesters should not bear the costs of “cleansing” records of exempted materials and that the costs of copying and staff time charged to a requester threaten to be the biggest impediment to open records under the KORA. See 33 Kan. L. Rev. at 266. It also argues that with regard to the federal FOIA, federal courts have consistently placed the cost burdens for the excision of information upon the governmental agency. Data Tree then discounts the holding of State ex rel. Stephan v. Harder, 230 Kan. 573, 589-90, 641 P.2d 366 (1982), which allowed a state agency to pass costs of redaction along to the requester, on grounds the decision in Üiat case predated the KORA and was based on a statute silent on the issue of redaction but later repealed when the KORA was enacted. Data Tree argues the reasoning of Harder was superseded by the “separate and delete” language of K.S.A. 2004 Supp. 45-221(d).
The Register of Deeds asserts that throughout K.S.A. 45-219, the emphasis is that the requester bears the burden of the cost of reproducing public records. He argues the language of the current statute is in keeping with the holding of Harder and points to the quotation therein of a portion of a Georgia Supreme Court decision that held the reasonable costs of deleting nondisclosable information from certain public records are to be borne by the requester. See 230 Kan. at 581-82 (quoting Griffin-Spalding &c. Auth. v. WKEV, 240 Ga. 444, 241 S.E.2d 196 [1978]). The issue determined in that portion of the Harder opinion, however, did not concern tire assignment of redaction costs; rather, it concerned whether the former Kansas Public Records Inspection Act, K.S.A. 45-201 et seq. (Ensley 1981), required the deletion of confidential information from an otherwise disclosable record.
The Register of Deeds also argues that Data Tree points to nothing in tire current law that would shift the cost of redaction from tire requester to the government. He also notes that the Frederickson article observes that tire KORA is silent on the issue of who bears the cost of redaction. With regard to the FOIA, he notes that the FOIA provides for fee waivers in limited circumstances while the KORA does not, and because Data Tree’s interest is solely for commercial purposes it would not be eligible for a fee waiver if it made a request under the FOIA.
No Kansas cases have considered who bears the cost of redaction under the KORA. The KORA is silent on this specific point. However, the Register of Deeds correctly notes that the KORA contemplates the payment of a fee by a requester of copies of public records, K.S.A. 45-219(a); if it is impractical to copy a public record at the place the record is located and if it is necessary to use another facility for copying, “the cost thereof shall be paid by the person desiring a copy of the records,” K.S.A. 45-219(b); a public agency may charge the same fee for the services rendered in supervising the copying as for furnishing copies, K.S.A. 45-219(b); and fees for copies of records shall not exceed the actual cost of furnishing copies, including the cost of staff time required to make the information available, K.S.A. 45-219(c). Redaction of information in public records not subject to disclosure is an act that would be included in the “actual cost of furnishing copies.” Nothing in the KORA requires or contemplates shifting any portion of the actual cost of furnishing copies of the requested records from the requester to the custodian of the records.
Although a now-repealed statute was involved when the Harder court considered who was to bear the expense of deleting exempt material from an otherwise disclosable record, our reasoning is equally applicable to this situation. The KORA does not specifically mention who is to bear the cost of redaction. It does, however, make clear the legislative intent that actual costs of furnishing copies of public records may be recovered by the agency and that the person seeking the records should bear the actual expense. Charging the requesting party with the attendant expense does not appear inconsistent with the purpose of the KORA. The district court did not err in ruling the costs of producing records, including the costs of redaction, are to be borne by Data Tree.
(4) Attorney Fees
Finally, Data Tree contends it was entitled to attorney fees under K.S.A. 45-222(c) because the denial of access by the Register of Deeds was not in good faith and was without a reasonable basis in fact or law.
We note that K.S.A. 45-222 was amended in 2004; see K.S.A. 2004 Supp. 45-222(c). For purposes of this appeal, the amendments are not applicable and K.S.A. 45-222(c) provided:
“In any action hereunder, the court shall award attorney fees to the plaintiff if the court finds that the agency’s denial of access to the public record was not in good faith and without a reasonable basis in fact or law. The award shall be assessed against the public agency that the court determines to be responsible for the violation.”
The district court ruled that the change in policy of the Register of Deeds from nonredaction to redaction of social security numbers, mothers’ maiden names, and dates of births from recorded instruments was not made in bad faith and was taken during the ordinary course of his duties. Accordingly, the district court ruled that no attorney fees were to be awarded in this case.
On appeal, Data Tree first complains that tire Register of Deeds did not mention the redaction issue until approximately 4 months after the initial request for the microfilm copies and that once Data Tree acquiesced providing an affidavit concerning the use of the information, the Register of Deeds advanced a new theory for nondisclosure which would involve an enormous expense to Data Tree. Data Tree asserts that at the same time, the Register of Deeds engaged in selective application of the statute by providing unredacted copies of records to Microfilm and possibly others for resale to that company’s customers.
Data Tree further argues there is no reasonable basis in law or fact to support the denial of access because there is no evidence that release of the information would amount to a “clearly unwarranted invasion of personal privacy.” Data Tree asserts that the denial of access was based on nothing more than the personal opinion of the Register of Deeds and, relying on Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 417, 997 P.2d 681 (2000), notes that a public entity opposing disclosure has the burden of proving the applicability of an exemption by providing a sufficiently detailed record showing the reasons why a claimed exemption applies to the materials requested. Additionally, Data Tree argues that if the KORA is not interpreted in favor of disclosure, the Register of Deeds has violated his own statutory duties by refusing access to recorded instruments in their entirety which further indicates there was no reasonable basis for the denial of access. Data Tree cites no case law in support of its arguments that the Register of Deed’s actions were not in good faith and were without a reasonable basis in fact or law.
The Register of Deeds first counters that Data Tree was not denied access to the records requested; rather, it was denied only unredacted copies of the records and Data Tree chose not to pay the costs of redaction. The Register of Deeds then asserts that the issue of redaction did not arise until he received various complaints about the information in question being obtained by outside entities. He further asserts that he changed his policy to protect against any unwarranted invasion of personal privacy other courts have found could result from the release of social security numbers, mothers’ maiden names, and dates of births. He argues that his change of policy does not amount to bad faith and, further, that because there are no Kansas cases which fully address the issue concerning redaction of these items, it was reasonable for him to rely on decisions by other state and federal courts that have addressed identical issues.
The Register of Deeds points out that records were not provided to Microfilm for the purpose of resale but were provided for the purpose of creating microfilm records. When it was determined that unredacted materials should not be released to requesters without restrictions, Microfilm was directed to cease that practice.
The Register of Deeds further argues that attorney fees are not proper because this matter, which raises an issue of first impression, was decided on motions for summary judgment without a factual or evidentiary hearing. In support, the Register of Deeds cites Willis v. Kansas Highway Patrol, 273 Kan. 123, 133-34, 41 P.3d 824 (2002) (attorney fees against KHP properly denied because of reasonable arguments by KHP and question of first impression), and Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, 784-90, 69 P.3d 578 (2003) (attorney fees awarded by district court upheld in first impression case because arguments lacked merit).
For attorney fees to be awarded under K.S.A. 45-222(c), an agency’s action must be both “not in good faith” and “without a reasonable basis in fact or law.” Because there was no factual or evidentiary hearing below, there was no showing that the actions of the Register of Deeds in responding to Data Tree’s request was “not in good faith.” Further, whether disclosure of social security numbers, mothers’ maiden names, and dates of births constituted a clearly unwarranted invasion of personal privacy under K.S.A. 2004 Supp. 45-221(a)(30) was a question of first impression for Kansas courts and was supported by meritorious arguments. Thus, there was a “reasonable basis in fact or law” for the actions of the Register of Deeds in this case. Cf. Willis, 273 Kan. at 133-34. The district court did not err in not awarding attorney fees to Data Tree.
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
-76,
109,
-3,
124,
24,
-32,
58,
10,
89,
-91,
-90,
83,
-17,
-54,
20,
107,
-13,
109,
-43,
121,
-57,
-77,
67,
-24,
-42,
-77,
-29,
-59,
-7,
73,
-12,
-60,
76,
48,
10,
-75,
70,
2,
-123,
24,
-50,
6,
-119,
91,
-45,
64,
36,
43,
98,
9,
117,
63,
-79,
56,
30,
-29,
9,
44,
-53,
-24,
-127,
-71,
-69,
23,
92,
23,
49,
-92,
-104,
-117,
-56,
-81,
-102,
56,
0,
-24,
122,
-90,
22,
116,
41,
-103,
41,
110,
-30,
35,
20,
-19,
-36,
24,
7,
22,
31,
-90,
-108,
73,
96,
13,
-106,
-67,
69,
16,
15,
-4,
-29,
69,
31,
44,
-117,
-54,
-42,
-77,
13,
116,
-119,
3,
-17,
0,
-112,
81,
-61,
98,
92,
87,
50,
-69,
-50,
-11
]
|
The opinion of the court was delivered by
Davis, J.:
This appeal involves a contest between insurance carriers; the issue raised is which of two carriers is excess in its underinsurance coverage. Michael P. Mitchell was severely injured in an automobile collision while driving a United Parcel Services (UPS) van in the course of his employment. His personal vehicle coverage with Shelter Mutual Insurance Company (Shelter) provided underinsured coverage, and UPS also carried underinsured coverage through Liberty Mutual Insurance Company (Liberty). Mid-Century Insurance Company (Mid-Century), the tortfeasor’s insurer, paid its policy limits of $50,000, and a lawsuit proceeded in the underlying liability action. Shelter elected to join, Liberty did not.
The question raised involves the procedure to be followed in the determination of which of the two carriers is excess under under-insured motorist coverage when one or both of the underinsured carriers elects not to intervene in the underlying liability action. May the court in that action compel joinder and resolve this question in the liability action, or must a separate lawsuit be brought against both carriers after the underlying liability question is resolved? We hold that a separate lawsuit against both carriers after completion of the underlying liability action is required. We, therefore, dismiss for lack of jurisdiction.
On November 1, 1991, a UPS van driven by Mitchell in the course of employment collided with a station wagon driven by Loretta Mattson. Mitchell filed suit against Mattson, who was insured by Mid-Century. UPS intervened to protect and enforce its statutory lien rights for workers compensation benefits paid to Mitchell.
Mid-Century tendered Mattson’s policy limits in the amount of $50,000. Mitchell’s personal automobile insurance carrier, Shelter, and UPS’ carrier, Liberty, were notified by Mitchell that he would be instituting an underinsured motorist claim against them. Both were given the option of intervening in the action or substituting payment under the provisions of K.S.A 40-284(f). Neither carrier opted to substitute payment. Shelter intervened in the liability and damages action filed by Mitchell, but Liberty chose not to intervene. As one of its defenses, Shelter claimed its underinsured motorist coverage was secondary and excess to the coverage provided by Liberty.
Pursuant to a settlement agreement in the liability and damage action among Mitchell, Mattson, UPS in its capacity as a lien claimant for payment of workers compensation benefits to Mitchell, and Shelter, Mattson’s liability was admitted and damages were stipulated to be $950,000 in the following amounts:
“A. Past income and earning capacity loss in an amount at least equal to: $100,000.00
B. Future income and earning capacity loss in an amount at least equal to: $460,000.00
C. Loss of ability to perform services to and for the benefit of his spouse and his family in an amount at least equal to: $63,000.00
D. Past medical expenses in an amount of approximately: $17,000.00
E. Past and future pain, suffering and mental anguish, along with permanent bodily disability at least equal to: $250,000.00
F. Past and future loss of consortium in an amount at least equal to: $60,000.00.”
On March 29, 1995, the trial court, therefore, entered judgment for Mitchell in the amount of $950,000.
UPS argued to the trial court that it could not determine whether Liberty or Shelter s underinsured motorist coverage was primary because Liberty was not a party to the lawsuit. The trial court determined that Mitchell should be allowed to amend his petition to include Liberty as a defendant so that the trial court could then resolve the remaining issue of which carrier, Shelter or Liberty, provided the primary underinsurance motorist coverage for Mitchell.
Mitchell filed an amended petition naming Liberty and Shelter as parties to the lawsuit. Liberty answered, denying liability on the following bases: (1) The trial court was without jurisdiction because the damage and liability lawsuit had already been concluded and a new lawsuit against Shelter and Liberty must be commenced; (2) Liberty owed no underinsured coverage because its coverage was a minimum of $25,000 per person and below the $50,000 paid to settle Mitchell’s claim against Mattson; (3) comparative fault should reduce the damages; and (4) the settlement agreement was collusive and not binding on Liberty because it was entered without Liberty’s consent.
Mitchell filed a motion for summary judgment, asking the trial court to conclude that UPS did not properly file its written rejection of underinsurance coverages equal to its liability coverage under K.S.A. 40-284(c) and Kansas Insurance Commissioner Bulletin 1981-20. Mitchell argued that Liberty’s policy therefore provided underinsurance coverage in an amount equal to its liability coverage of a minimum of $3,000,000 and was primary. The trial court agreed and awarded summary judgment in favor of Mitchell against Liberty. Liberty appeals; Mitchell cross-appeals. The court reserved the issue of attorney fees under K.S.A. 40-256 and later resolved this issue against Mitchell. Mitchell appeals.
Discussion and Analysis
Under K.S.A. 40-284(b), uninsured motorist coverage must include an underinsured motorist provision with coverage limits equal to the uninsured provision. Under K.S.A. 40-284(a), the policy limits of an uninsured motorist provision must be equal to the liability coverage in the insurance policy. Kansas law thus requires that underinsured motorist coverage in an automobile policy must have coverage limits equal to the liability coverage of the policy. However, K.S.A. 40-284(c) provides that the insured has the right to reject uninsured and underinsured motorist coverage in excess of the minimum required by law, vis., $25,000 per person/$50,000 per accident. In order to properly reject underinsured motorist coverage in excess of the minimum required by law, the insured must provide a written rejection to its insurer. Kansas law provides that once such written rejection has been sent, the insurer need not include excess insurance in any subsequent policy of the insured unless the insured specifically requests such excess coverage in writing. K.S.A. 40-284(c).
The primary dispute between Shelter and Liberty and the major dispute upon motion for summaiy judgment centered upon Shelter’s contention that UPS, although it may have attempted to reject excess underinsured coverage, did not do so under law. Thus, according to Shelter, Liberty’s underinsured coverage was in excess of $3,000,000, the same as its liability coverage. Because Shelter’s policy provided for primary underinsured coverage on a vehicle insured by its policy but provided only excess for other vehicles driven by its insured, Shelter claimed that Liberty’s insurance was primary.
The parties spent considerable time in discovery, in the motion for summary judgment, and in their respective briefs on appeal on the question of whether UPS rejected underinsured motorist coverage in excess of the minimum required by law. However, we need not address the question because we determine that the trial court did not have jurisdiction to resolve the questions of under-insured motorist coverage under the Shelter and Liberty policies.
This court discussed the procedure to be followed in actions involving an underinsured motorist in Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985). In that case, Haas sued Freeman in tort for damages he sustained in an automobile accident involving both parties. Haas’ insurer, Horace Mann Insurance Company, was joined as a party defendant under the underinsured motorist provisions of K.S.A. 40-284. The trial court dismissed the insurance company. On interlocutory appeal, the primary issue raised was whether a plaintiff’s insurance company may be included in an action against a tortfeasor when the tortfeasor is an underinsured motorist.
After considering prior decisions from other jurisdictions and the policy in this state against multiple litigation, the court determined:
“[U]nderinsured motorist claims are sufficiently distinguishable from uninsured motorist claims to require different procedures. In the underinsured motorist case there is always an active opposing party and his insurer. Also the fact of under-insurance is an unresolved issue. To require both insurance carriers to be party defendants would present a confusing panorama to the jury and could so overemphasize the insurance feature of the lawsuit the real issues would become unimportant. For these reasons we hold in an action involving an underinsured motorist, the parties shall proceed as follows:
“When the litigant determines the opposing party’s liability coverage is below the litigant’s liability coverage as well as the amount of damages claimed, and he wishes to invoke the underinsured motorist clause of his insurance policy, he shall notify his insurance carrier in the manner prescribed in the insurance policy.
“The insurance company may then intervene in the case at its election. If it elects to intervene, it shall be a named party to the action. If the insurance company elects not to intervene, K.S.A. 60-454 is applicable. In either case the litigant’s underinsured motorist insurance carrier is bound by any judgment obtained in the action.” 236 Kan. at 683.
We revisited Haas in Ramsey v. Chism, 249 Kan. 299, 817 P.2d 198 (1991), which involved an interlocutory appeal from a tort action brought by the Ramseys against Chism for injuries they suffered in an automobile accident. The Ramseys’ automobile liability insurer, Shelter, was joined as a party defendant under the under-insured motorist provision of K.S.A. 40-284. Shelter appealed the trial court’s ruling that it was a proper party to the action. The issue presented was whether an insured is precluded from joining his or her underinsured motorist carrier in an action against the under-insured tortfeasor when liability and damages are not at issue but contract issues are in dispute.
The Ramseys argued that the procedure established in Haas did not apply because Chism’s insurance carrier had offered to settle the claim and, thus, there was no disputed issue concerning liability or the amount of damages. The Ramseys alleged that it would be inequitable and a violation of substantial justice to require them to bring a lawsuit against Chism and obtain a judgment before they could bring a second lawsuit against Shelter to recover underinsured motorist benefits.
Among other arguments, Shelter contended that it had exercised its statutory option not to intervene in the tort action. Accordingly, it claimed that the Ramseys must complete their tort action before pursuing any contract claims and were prohibited from mixing the issues in a single lawsuit. We concluded in Ramsey:
“The conflict between the Ramseys and Shelter was contemplated by this court in Haas and was the basis for rejecting the argument that joinder is preferred over multiple litigation. In Haas, we found, that an underinsured motorist carrier should not be joined in the tort action where underinsurance remained an unresolved issue. 236 Kan. at 682. Underinsurance and Chism’s policy limits quite definitely remain unresolved in the present action. In addition, Chism and Travelers are active parties in the lawsuit, another reason provided in Haas for not allowing joinder. Finally, the presence of Travelers and Shelter in the same suit would naturally and prejudicially emphasize the insurance feature of this lawsuit. The distinct features of an underinsured motorist claim preclude the accomplishment of substantial justice through a single lawsuit and must allow the possibility of multiple litigation to preserve therights of all parties involved. For these reasons, we hold Haas is applicable to the present action.” (Emphasis added.) 249 Kan. at 303.
Liberty, in this case, elected not to join in the damage and liability action filed by Mhtchell against the tortfeasor. Not unlike the factual situation in Ramsey, all parties except Liberty agreed to settle the liability and damage claims. However, underinsurance remained an unresolved issue in the case. Does it make a difference that in this case judgment has been entered on the liability and damage claims of the plaintiff? We think not, for as this court stated in Haas and reiterated in Ramsey, an underinsured motorist carrier should not be joined in the tort action where underinsurance remains an unresolved issue. See 249 Kan. at 303.
Mitchell argues that there is no reason to apply the procedure set forth in Haas because liability and damages have been resolved by entry of judgment in the tort action. Thus, the opposing tortfeasor and insurance carrier are not actively involved in the underinsured motorist action; nor would joinder of Liberty after judgment confuse a jury and overemphasize the insurance feature of the lawsuit. See Haas, 236 Kan. at 682. However, as Liberty points out, at this point there is no final judgment in the liability and damage lawsuit. Thus, subject to the trial court’s discretion, liability and damages may be set aside for any number of reasons, raising the possibility that the opposing tortfeasor and insurance carrier might be actively involved in the underinsured motorist action, which may result in confusion or overemphasis of insurance in the liability phase of the lawsuit as a result.
The distinct features of an underinsured motorist claim preclude the accomplishment of substantial justice through a single lawsuit and must allow the possibility of multiple litigation to preserve the rights of all parties involved. Ramsey, 249 Kan. at 303. This procedure is consistent with Kansas law involving intervention in cases of underinsured motorist coverage. In Guillan v. Watts, 249 Kan. 606, 822 P.2d 582 (1991), this court considered at great length the rules regarding the intervention or nonintervention of insurers and its effect on judgment. We stated:
“In an action involving an underinsured motorist, if the insured invokes the underinsured motorist clause of his automobile insurance policy and notifies his insurance carrier in the manner prescribed in the insurance policy, the insurer has the election to intervene in the action. If the insurer elects to intervene, it becomes a named party to the action. However, if the tortfeasor subsequently agrees to confess judgment after the insurer has intervened, the confession or agreement is conclusive only as to the parties to the agreement and is not binding upon the insurer even though the insurer would have been bound by the judgment had it been obtained as a result of the trial.” 249 Kan. 606, Syl. ¶ 2.
However, where the insurer is notified and refuses to intervene, the insurer is bound by the judgment whether the judgment is by trial or based on a proper settlement agreement between the parties to the action and approved by the court. 249 Kan. 606, Syl. ¶ 5.
We refuse to adopt a rule casting doubt upon the procedures established in Haas and Ramsey where there has been an attempt to join an underinsured motorist carrier in the insured’s tort action for liability and damages. We are not unmindful of our past decisions regarding multiple litigation. However, we continue to recognize that the distinct features of an underinsured motorist claim precludes the accomplishment of substantial justice through a single lawsuit and must allow the possibility of multiple litigation to preserve the rights of all parties involved.
The partial judgment entered by the trial court in this case on March 29, 1995, disposed of all issues in the tort action filed by Mitchell. The only remaining action required by the trial court was the entry of final judgment. Instead, the trial court, without jurisdiction, allowed Mitchell to amend his petition and join Liberty in the tort action. We have no jurisdiction to consider any orders entered by the trial court after its March 29, 1995, order. We, therefore, dismiss for lack of jurisdiction. The contractual questions of whether Liberty or Shelter is primary for underinsured motorist coverage purposes must be resolved in a separate lawsuit after entry of final judgment in the tort action.
Dismissed for lack of jurisdiction. | [
-16,
120,
-12,
-82,
8,
33,
42,
26,
125,
-93,
-90,
83,
-69,
-57,
-123,
115,
-2,
53,
-15,
74,
-11,
-93,
7,
-54,
-37,
-109,
-79,
-59,
-88,
75,
101,
110,
76,
96,
10,
-59,
102,
74,
-59,
30,
-50,
4,
-72,
105,
-39,
-61,
-16,
-8,
80,
79,
49,
-121,
-69,
44,
24,
-61,
45,
40,
59,
-95,
-61,
-80,
-49,
-121,
127,
2,
-77,
4,
-104,
39,
-16,
10,
-112,
-79,
40,
-24,
82,
-90,
-106,
53,
99,
-103,
0,
102,
103,
33,
49,
-91,
-4,
-104,
46,
86,
31,
-122,
-106,
57,
57,
11,
-74,
31,
106,
21,
6,
126,
-3,
29,
31,
109,
21,
-114,
-46,
-79,
-19,
96,
29,
-121,
-17,
-121,
-78,
96,
-54,
-32,
94,
85,
62,
23,
-49,
-98
]
|
The opinion was delivered by
Luckert, J.:
A jury convicted Michael Kesselring of aggravated kidnapping, conspiracy to commit aggravated kidnapping, and first-degree murder under a combined theory of premeditated murder and felony murder. The trial court sentenced Kesselring to a controlling term of life imprisonment with parole eligibility after 20 years, plus 234 months’ imprisonment.
Kesselring appeals his convictions and sentences, arguing: (1) The jury failed to make unanimous findings of guilt on the first- degree murder charge and the aggravated kidnapping charge; (2) the first-degree murder sentence was erroneous because it was unclear which alternative means was found by the jury; (3) his right to a fair trial was violated by references to polygraph examinations taken by two witnesses; (4) the trial court erred in admitting the hearsay statements of a deceased witness; and (5) the trial court erred in admitting the defendant’s mail into evidence. We affirm.
Facts
On October 3, 2000, Dale E. Miller reported to the Topeka Police Department that his son, Dale Alan Miller (Miller), was missing and that he had last spoken with his son on September 13, 2000. An investigation began which eventually raised questions about Miller’s connection to a drug ring in which his cousin, Michael Reece, was involved. The investigation also discovered information that a large quantity of drugs had been stolen from the drug ring and Miller was accused of taking it.
The drug ring involved several people who testified at trial: Heather Reece, who was Reece’s common-law wife; Gary Holmes, who was Heather’s father; Curtis Callarman; and Scott Clift. Kesselring was a customer and friend of Reece. Reece did not testily because he died of cancer a few weeks before trial.
When Reece was indicted on federal drug trafficking charges, he came forward with information about Miller’s disappearance. In April 2001, Reece led Kansas 'Bureau of Investigation (KBI) agents to a site where he claimed Miller had been killed and where he said agents might find some evidence, such as a shoe. The agents did recover a shoe and also a T-shirt with two bullet holes in it. Reece then led the agents to a second site where Miller’s shirtless body was eventually recovered. Three .22 caliber bullets fired from the same gun were recovered from the body.
In the course of investigating Miller’s death, KBI Agent Jeff Hupp interviewed many of the State’s witnesses including Clift, Donna Welty, Heather, Holmes, and Callarman. Hupp testified about those interviews at trial, and where applicable, the audio or videotape of each witness’ statement was played for the jury.
The only eyewitness to the murder was Holmes, an admitted alcoholic and drug addict who occasionally sold drugs for Reece’s organization. Holmes testified that Reece had contacted him and told him drugs were missing from the storage unit. Holmes and Reece went to the storage unit together to investigate, and Reece concluded Miller had stolen the drugs. At Reece’s request, Holmes agreed to help get the drugs back.
Holmes testified that Reece picked him up that evening and they went to a motel in Topeka to pick up Kesselring. The three men returned to the Reeces’ house and discussed how to get the drugs back from Miller. After Callarman arrived, the four men went outside and Reece got two guns out of a car, giving one of them, a .22, to Kesselring. Reece told Kesselring, “[T]hat’s a throw-away gun . . . you can use it.” Holmes and Kesselring got into a blue car, which they had borrowed from Clift so that the car would not be traceable to them, and followed Reece and Callarman to the house where Miller was staying.
Callarman testified that when they got to the house, Kesselring and Holmes hid beside the house and behind a bush while he knocked on the door. When Miller answered, according to Callarman, Kesselring and Holmes ran up with their guns and told Miller that Reece wanted to talk to him. As they walked Miller out to Reece’s car, Reece told Miller to ride with Kesselring and Holmes. Holmes testified that he could not remember for sure whether he had a gun in his hand but thought he probably did. According to Holmes, Miller got in the front seat of the car Kesselring was driving, and Holmes got in the back seat. Holmes remembered having a Tek 9 gun at that time.
The plan was to meet Reece and Callarman back at the Reeces’ house. As Kesselring slowed down for a yield sign, Miller jumped out of the car and ran down the street. Both Holmes and Kesselring jumped out of the car to look for him. Holmes found Miller hiding underneath a car, grabbed him by his T-shirt, and brought him back to the car at gunpoint. Holmes testified Miller was “pretty terrified.”
Holmes, who was drunk, passed out in the back seat of the car. The next thing Holmes remembered was waking up because dust was rolling in the windows of the car, which was out in the country on a dirt road. Kesselring was yelling at Miller about the drugs. Miller was still denying that he had stolen the drugs and was claiming some black men had put the drugs in a different storage unit. Holmes asked, “Where the hell are we?” and Kesselring responded they were going to meet Reece.
Holmes testified that Kesselring pulled up to a bridge and shut off the car, telling Miller to get out. Holmes, who walked around the back of the car, saw Kesselring and Miller in front of the car. Kesselring was telling Miller they wanted the drugs back and that he was going to kill him. Miller pleaded for his life, and then Holmes saw Kesselring shoot Miller several times. Holmes and Kesselring threw Miller’s body over the side of the bridge.
A few days later, Holmes and Kesselring returned to the scene and pulled Miller’s body underneath the bridge, and a few days after that, they moved the body to an entirely different location, poured a bag of lime over it, and buried it. At first Holmes refused to assist in moving the body, but Reece offered to give him $1,000. Reece asked Holmes not to tell Kesselring about the money because Reece had given Kesselring less than that to kill Miller.
There were some inconsistencies between Holmes’ testimony and the version of events he told Agent Hupp. For instance, Holmes told Agent Hupp that he was awake and threatening Miller as Kesselring drove the vehicle onto the gravel road. Holmes also did not initially admit to Agent Hupp that he helped move and bury Miller’s body. Holmes told Agent Hupp he might have helped, but he was not totally sure. At trial, Holmes testified he had been drunk during the interview and, as a result, had difficulty remembering certain things. Pursuant to a plea bargain, Holmes pled guilty to reduced charges of attempted kidnapping and conspiracy to commit kidnapping and agreed to cooperate and testily truthfully in any prosecution regarding Miller’s murder.
Several witnesses testified they heard Kesselring admit to the shooting. Clift testified he could not remember whether Kesselring or Reece told him about the shooting of Miller. However, in his interview with Agent Hupp, Clift first accused Reece of having murdered Miller. At trial, Clift explained he had lied about Reece being responsible because he was angry at him, believing Reece was responsible for Clift’s federal indictment. Clift eventually told Agent Hupp what he knew about Holmes’ and Kesselring’s involvement in the murder and stated that Kesselring told him he had shot Miller in the back of the head.
Heather Reece testified she had overheard Kesselring tell Reece that Miller “wouldn’t tell me where everything was at so I blew his fucking head off.” The next morning, Heather went to see her father, Holmes, who told her Kesselring had shot Miller. Heather also testified that after the murder, Reece bought Kesselring a truck and told Heather to give Kesselring and his mother anything they needed. Heather gave Kesselring free drugs, paid the rent and utilities for Kesselring’s mother, and took her shopping. Kesselring’s mother, Deloris Walker, contradicted this testimony, stating that Heather never paid any of her bills or ran errands for her.
Callarman, who testified regarding his role in the kidnapping, also testified he heard Kesselring tell Reece that Miller was dead and also heard them discuss how to dispose of the body and evidence. Callarman testified that, while he and Kesselring were both in the Douglas County jail, Kesselring sent him several “kites” or letters asking him to say that Kesselring was not involved in Miller’s murder. Two of the letters were introduced into evidence. The State also introduced several other letters and handwriting exemplars from Kesselring in an attempt to demonstrate the letters to Callarman were in fact written by Kesselring. Like Holmes, Callarman was offered a favorable plea agreement. He pled guilty to a single count of conspiracy to commit kidnapping and agreed to cooperate and testify truthfully in the prosecution of Miller’s murder. The State agreed to recommend that Callarman’s sentence run concurrent with his federal sentence.
In his own defense, Kesselring testified that on the night in question, he was out running an errand for his mother and stopped by the Reeces’ house to buy a joint. When he got there he saw Reece, Heather, Callarman, and Holmes coming out of the house. Holmes was getting into a car with a gun. Reece told Kesselring that Miller had stolen $75,000 worth of drugs and they were going to go get him before he left town. Reece asked Kesselring if he wanted to go along, and Kesselring said no. Kesselring left and returned to his mother’s house. He testified he had nothing to do with Miller’s murder. Kesselring admitted writing letters to Callarman while in jail, but he argued that he was merely asking Callarman to tell the truth.
Did the Jury Make Unanimous Findings of Guilt on the First-Degree Murder Charge and the Aggravated Kidnapping Charge?
Kesselring’s first argument on appeal is that the jury did not make a unanimous finding of guilt on the first-degree murder charge or the aggravated kidnapping charge. This court exercises de novo review over issues of jury unanimity. State v. Hoge, 276 Kan. 801, 813, 80 P.3d 52 (2003).
“To determine whether the jury verdict was unanimous when the defendant is charged with both felony murder and premeditated murder as underlying theories for first-degree murder, the proper test to apply is the alternative means test . . .:
“In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing die crime proved beyond a reasonable doubt. [Citations omitted.]” ’ ” Hoge, 276 Kan. 801, Syl. ¶ ¶ 8-9.
Alternative Means for Murder
Kesselring argues there was insufficient evidence to convict him of first-degree murder under a theoiy of either premeditation or felony murder. He complains that there was conflicting testimony about who was armed on the night of Miller’s murder, about whether Miller came out of the house willingly or was lured out by Callarman, and about whether Holmes was awake and threatening Miller or passed out in the back seat on the way to where Miller was killed. Kesselring also argues that much of the evidence in support of his conviction was inadmissible hearsay and the other witnesses were not credible. In particular, Kesselring notes that Holmes, the only eyewitness, was admittedly intoxicated, offered inconsistent testimony, and was motivated to downplay his own involvement in the crime.
Kesselring’s arguments ignore the applicable standard of review. “In reviewing the sufficiency of the evidence, this court will not reweigh the evidence. It is the jury’s function, not ours, to weigh the evidence and determine the credibility of witnesses. [Citation omitted.]” State v. Doyle, 272 Kan. 1157, 1162-63, 38 P.3d 650 (2002). “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
In this case, there was sufficient evidence to support a rational jury’s belief that the defendant committed first-degree murder under either a theory of premeditation or felony murder. Premeditation is the process of simply thinking about a proposed killing before committing the act. Premeditation may be inferred from the nature of the weapon used, the defendant’s conduct before and after the killing, the defendant’s statements before and during the killing, and whether there was any provocation. State v. Meeks, 277 Kan. 609, 621-22, 88 P.3d 789 (2004).
The State introduced evidence that Kesselring threatened Miller before he was killed and then shot him multiple times, including once in the head. The State also introduced evidence that Michael Reece paid Kesselring to kill Miller because Miller had stolen drugs from Reece’s drug ring. A car was obtained which could not be traced to those involved, a “throw-away” gun was used, and other aspects of the crime were planned. Further, there was no evidence that Miller provoked Kesselring. Thus, a reasonable juiy could have concluded from this evidence that Kesselring premeditated the murder of Miller.
The evidence was also sufficient under a felony-murder theory. To convict Kesselring of felony murder, the jury had to find that he killed Miller during the commission of aggravated kidnapping, the inherently dangerous felony charged as the underlying crime. See K.S.A. 21-3401(b); K.S.A. 2004 Supp. 21-3436(a)(2). To con vict Kesselring of aggravated kidnapping, the jury had to find that he took or confined Miller by force, threat, or deception; that he did so with intent to inflict bodily injury or terrorize Miller; and that bodily harm was inflicted on Miller. See K.S.A. 21-3421.
The State introduced evidence that Kesselring and Holmes were both armed with guns and forced Miller to get into their car, where he was held at gunpoint. The State also introduced evidence that Kesselring threatened Miller and eventually shot and killed him. Based on this evidence, a reasonable juiy could have concluded Kesselring lulled Miller during the commission of aggravated lad-napping.
Prosecutor s Argument Regarding Unanimity
Kesselring presents several additional arguments contending that his murder conviction is erroneous because of other defects in the trial which call into question whether the jury reached a unanimous verdict. First, he argues the lack of evidence, when combined with the prosecutor s admonition that only six jurors need agree on a means, requires that his conviction of first-degree murder be reversed.
This argument is based upon a portion of the State’s closing argument. In explaining to the juiy that Kesselring was charged with a single count of first-degree murder under alternative theories of premeditation and felony murder, the prosecutor stated:
“[I]t doesn’t matter if all of you agree on which one, so six of you can say you know what, we think he’s guilty of felony murder. We don’t think he was premeditated, that he pulled die trigger or that Gary Holmes pulled the trigger on Dale Miller. But we do believe it was committed during the course of the commission of this felony, so we think it’s felony murder. The other six can say you know what, he had him right in front of him, told him he was going to kill him and lolled him. We think it’s premeditated. Six of you can go one way — [the other six] the other way. If you do that, that’s fine, that’s first-degree murder still so it doesn’t matter. It’s only if all 12 of you can’t agree to one or the other then the defendant’s not guilty.”
In fact, die prosecutor’s comments were an accurate statement of the law under Hoge, 276 Kan. at 812. The argument merely explained that Kesselring could be found guilty of first-degree murder even if the juiy did not unanimously find him guilty of pre meditated murder and did not unanimously find him guilty of felony murder. The jury could unanimously find Kesselring guilty of murder in the first degree on the combined theories of premeditated murder and felony murder. The argument was consistent with the instruction given the jury regarding felony murder and premeditated murder as alternative theories of proving first-degree murder. The instruction provided:
“In this case, the State has charged the defendant with one offense of murder in the first degree and has introduced evidence on two alternative theories of proving this crime.
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed Dale A. Miller and that such killing was done while in the commission of aggravated kidnapping, or in the alternative by proving beyond a reasonable doubt that the defendant killed Dale A. Miller intentionally and with premeditation, as fully set out in these instructions.
“Where evidence is presented on two alternate theories of proving the crime charged, you must consider both in arriving at your verdict.
“In Instruction No. 10, the Court has set out for your consideration the essential claims which must be proved by the State before you may find the defendant guilty of felony murder, that is the killing of a person in the commission of aggravated kidnapping.
“In Instruction No. 9, the Court has set out for your consideration the essential claims which must be proved by the State before you may find the defendant guilty of premeditated murder.
“If you do not have a reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.
“If you have a reasonable doubt as to the guilt of the defendant as to the crime of murder in the first degree on both theories, then you must enter a verdict of not guilty.”
This instruction followed PIK Crim. 3d 56.02-A and has been approved by this court. E.g., Hoge, 276 Kan. at 810-14. In turn, the prosecutor s argument was consistent with the instruction and explained to the jury that a unanimous verdict was required under either individual theory or a combined theory of guilt.
Kesselring also argues that the prosecutor’s statement to the jury during closing argument “that only six of the jurors need find that Defendant committed aggravated kidnaping, seriously califs] into question the aggravated kidnaping verdict.” This argument completely mischaracterizes what the prosecutor said. The prosecutor told the jury that, with regard to the alternative theories of first-degree murder, if six jurors agreed on the theory of premeditation and six jurors agreed on the theory of felony murder, the jury could still properly find Kesselring guilty of first-degree murder. The prosecutor never told the jury that only six of them need find Kesselring guilty of aggravated kidnapping.
Multiple Acts Analysis Regarding Kidnapping Charge
In another argument, Kesselring contends there was no unanimous jury verdict on the charge of aggravated kidnapping because there were multiple acts which could have constituted the crime and the jury was not given a unanimity instruction. Kesselring contends the kidnapping could have occurred
“either when the victim went out onto the porch when Callarman knocked, when tire victim was taken to the car, when the victim was returned to the car by Holmes at gunpoint after leaving the car, after the stop at the house when the victim appeared not to be distressed, or when the victim was removed from the car later.”
“In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. . . . [Citations omitted.] Whether a case is a multiple acts case is a question of law over which this court has unlimited review. [Citation omitted.]” State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The threshold question in a multiple acts analysis is whether defendant’s conduct is part of one act or represents multiple acts which are separate and distinct from each other. State v. Staggs, 27 Kan. App. 2d 865, 867, 9 P.3d 601, rev. denied 270 Kan. 903 (2000).
In Staggs, the defendant, who stood convicted by a jury of aggravated battery, argued that some jurors may have found that he kicked the victim, while others may have found that he punched the victim, thereby requiring a unanimity instruction on multiple acts. The Staggs court held:
“[T]he evidence here supports only a brief time frame in which the aggravated battery occurred. Once defendant initiated the altercation, no break in the action of any length occurred, and the confrontation continued until defendant broke the victim’s cheekbone. Simply put, the evidence established a continuous incident that simply cannot be factually separated. No ‘multiple acts’ instruction was necessary.” 27 Kan. App. 2d at 868.
A parallel analysis is appropriate in this case. The evidence establishes a continuous incident that cannot be factually separated. “Incidents are factually separate when independent criminal acts have occurred at different times or when a late criminal act is motivated by ‘a fresh impulse.’ ” State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 (2000). Although we have previously used this test as part of the harmless error analysis in Hill, it is also an appropriate test for determining the threshold question of whether multiple acts are involved. . .
In this case, although the events transpired over a longer period of time, there were no breaks in the sequence of events, sufficient to establish separate criminal acts. The crime of kidnapping, as compared to the crime of battery involved in Staggs, may occur over a longer period of time. Yet a kidnapping over several hours or days could not be broken into several crimes. Under the facts of this case, the length of time involved does not prevent a finding of a continuous incident. Furthermore, the moving of a kidnapping victim from one location to a car and from the car to another location does not constitute separate acts. Similarly, the fact that Miller was momentarily free when he attempted to escape was not a sufficient interruption to say that a new criminal impulse or new act of kidnapping had occurred. The evidence was that the interruption was not appreciable.
If the State had charged Kesselring with separate counts of kidnapping based on each act that Kesselring attempts to separate, the issue of multiplicity could have been justly raised. The incident here was not susceptible to dissection into further components that would constitute multiple acts; rather, it was a continuous incident that cannot be factually separated. Therefore, we find this was not a multiple acts case and no multiple acts instruction was necessary to ensure that the jury’s verdict was unanimous.
Verdict Form
In a related argument, Kesselring contends the juiy instructions were inadequate because they did not include a verdict form which would have allowed the jury to specify whether it unanimously agreed on each theory of first-degree murder. In support, Kessel ring cites State v. Hoge, 276 Kan. 801, a case where the jury was given such a verdict form.
In this case, the jury was instructed on felony murder and premeditated murder as alternative theories of proving first-degree murder consistent with PIK Crim. 3d 56.02-A. Although the jury was not given a verdict form like the one found at PIK Crim. 3d 68.16 which would have allowed the jury to specify whether it unanimously agreed on each theory of first-degree murder, the evidence was sufficient to support Kesselring’s conviction under either alternative means and the jury instruction clearly informed the jury that a unanimous verdict was required for a conviction under either or both theories of guilt. Therefore, there is no reason to doubt the jurors’ unanimity regarding first-degree murder, and Kesselring’s conviction need not be reversed for lack of unanimity. See Hoge, 276 Kan. at 814. The lack of a verdict form only affects the ability of the trial court to sentence Kesselring for premeditated murder. See State v. Vontress, 266 Kan. 248, 264, 970 P.2d 42 (1998). Accordingly, the remaining issue to address is whether Kesselring was properly sentenced for felony murder rather than premeditated murder.
Did the Trial Court Err in Sentencing Kesselring?
Kesselring argues that he was improperly sentenced for first-degree premeditated murder when there was no indication the jury made a unanimous finding of guilt on premeditated murder.
We stated in Vontress: “Where the sentencing court cannot ascertain whether the jury unanimously convicted the defendant of both premeditated murder and felony murder, the sentencing court has no authority for sentencing the defendant for premeditated murder.” 266 Kan. at 264.
However, the State contends the trial court was well aware of this limitation and properly sentenced Kesselring for felony murder. According to the State, the trial court sentenced Kesselring to life in prison with parole eligibility after 20 years pursuant to K.S.A. 2004 Supp. 21-4706 and K.S.A. 2004 Supp. 22-3717(b)(2). K.S.A. 2004 Supp. 21-4706 provides that the sentence for off-grid crimes “shall be imprisonment for life.” K.S.A. 2004 Supp. 22-3717(b)(1) sets parole eligibility for first-degree premeditated murder at 25 years, while subsection (b)(2) sets parole eligibility for other off-grid offenses, which includes felony murder, at 20 years.
The record reflects that this issue was raised at the sentencing hearing when defense counsel asked the trial court to make a finding that Kesselring would be parole eligible after 20 years rather than 25 because the jury did not specify whether it had convicted him under a theory of premeditation or felony murder. The prosecutor agreed that Kesselring would be parole eligible after 20 years but questioned whether the trial court needed to make a specific finding on the issue, stating that the Department of Corrections could make the determination. In announcing the life sentence, the trial court did not make a specific ruling as to Kesselring’s parole eligibility; rather, the court simply sentenced Kesselring to imprisonment for life. However, the journal entiy of sentencing reflects that Kesselring was sentenced to life with parole eligibility after 20 years for his first-degree murder conviction.
Thus, the record makes clear that Kesselring was properly sentenced for felony murder, not premeditated murder. Kesselring’s argument on this point fails.
Should the Jury Have Been Instructed on Lesser Included Offenses?
Next, Kesselring argues that the trial court should have instructed the jury on the lesser included offenses of kidnapping, criminal restraint, and second-degree murder. The record reflects that the jury instructions originally contained lesser included offense instructions for kidnapping and criminal restraint, but the parties agreed to delete those instructions, and the trial court found they would be inconsistent with each party’s theory of the case. Defense counsel did not request an instruction on second-degree murder, nor did he object that no such instruction was given.
“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime . . . the judge shall instruct the jury as to the crime charged and any lesser included crime.
....
“No party may assign as error the giving or failure to give an instruction, including the lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” K.S.A. 2004 Supp. 22-3414(3).
The failure to give a lesser included offense instruction is clearly erroneous “ 'only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Drennan, 278 Kan. 704, 712, 101 P.3d 1218 (2004).
In support of his argument that the trial court should have instructed die jury on the lesser included offenses of kidnapping and criminal restraint, Kesselring contends there was conflicting evidence about whether weapons or threats were used to take Miller from his friend’s house. Kesselring also points out that Holmes admitted he was the one who located Miller and returned him to the car at gunpoint after Miller tried to escape.
For purposes of this case, kidnapping is defined as the taking or confining of any person, accomplished by force or threat, with the intent to hold such person to inflict bodily injury or terrorize him or her. K.S.A. 21-3420. Aggravated kidnapping includes the additional element that bodily harm was inflicted on the victim. K.S.A. 21-3421. Criminal restraint is defined as “knowingly and without legal authority restraining another person so as to interfere substantially with such person’s liberty.” K.S.A. 21-3424.
The State’s evidence established that Kesselring and Holmes forced Miller into their car, that both men threatened Miller with guns, and that Kesselring verbally threatened Miller before killing him. Kesselring maintained that he was not present and did not participate in any of this conduct. Based on the evidence, the jury could have either convicted Kesselring of aggravated kidnapping or acquitted him. It could not reasonably have convicted Kesselring of mere kidnapping or criminal restraint. Thus, the trial court did not err in failing to instruct on those lesser included offenses.
Next, we must consider whether the trial court’s failure to instruct the jury on the lesser included offense of second-degree murder was clearly erroneous. When, as in this case, the jury does not unanimously agree on the underlying theory for first-degree murder, the question of whether lesser included instructions should have been given is analyzed under both the felony-murder theory and the premeditation theory. State v. Hoge, 276 Kan. at 805. “Under the felony-murder theory, lesser included offense instructions are unnecessary unless the evidence of the underlying felony is weak, inconclusive, or conflicting. [Citation omitted.]” Hoge, 276 Kan. at 805. Under the premeditation theory, the usual rules for lesser included offense instructions apply. Hoge, 276 Kan. at 805.
Kesselring argues that the evidence of his guilt on the underlying felony of aggravated kidnapping was weak, inconclusive, and conflicting, but that was simply not the case. The evidence was sufficient to establish Kesselring killed Miller during the commission of an aggravated kidnapping. While it is true that the State’s witnesses were less than ideal, and there were some conflicts between the testimony of the various witnesses and also between their testimony and previous statements to police, on the key points, all of the witnesses told the same story — that Kesselring was present and participated in the kidnapping of Miller and that he shot and killed Miller. Although Holmes was the only eyewitness to the murder, other witnesses placed Kesselring in the company of Holmes, Callarman, and Reece on the night of the murder. Further, several witnesses placed the .22 caliber gun in his possession; Holmes had a Tele 9. The bullets recovered from the body were .22 caliber. Accordingly, the trial court did not err in failing to instruct the jury on second-degree murder as a lesser included offense of felony murder.
As to whether the trial court should have instructed on second-degree murder as a lesser included offense of premeditated first-degree murder, the court must examine whether there was any evidence to support a conviction of second-degree murder. Second-degree murder is defined as the killing of a human being committed intentionally or “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 2004 Supp. 21-3402. Kesselring does not specify whether he believes the jury should have been instructed on both of these theories of second-degree murder or only one.
In support of his argument on this point, Kesselring relies on the prosecutor’s argument that Kesselring and Holmes might have kidnapped Miller and taken him out to the country, but that Holmes might actually have been the triggerman. The prosecutor made this argument to the jury in explaining the purpose of the aiding and abetting instruction. The prosecutor told the jury that if it concluded that Holmes was actually the triggerman, Kesselring would still be guilty as an aider and abettor if it was reasonably foreseeable that Miller would be lulled during the aggravated kidnapping.
However, even under this scenario, Kesselring still would not be entitled to a jury instruction on second-degree murder. Kesselring would still be guilty of premeditated first-degree murder, only as an aider and abettor. Kesselring’s argument on this point fails. There was no evidence to support a conviction for second-degree murder; thus, the trial court’s failure to give a lesser included instruction on that offense was not clearly erroneous.
In his reply brief, Kesselring also complains of the prosecutor’s statement that “if Defendant was present, he was good for all of it.” The prosecutor’s actual statement was, “If he admits to participation on any level under the aiding and abetting principles of felony murder, he’s good for all of it. So it should not have surprised you that he denies any participation whatsoever in the commission of his crime. He can’t admit to any of it.” According to Kesselring, but for this statement by the prosecutor, the jury could have convicted him of either of the lesser included crimes of kidnapping or criminal restraint if the jury believed his version of events — that he saw Reece, Callarman, and Holmes on the night in question and knew they were going to talk to Miller but then left. This argument simply makes no sense. If the jury believed Kesselring’s version of the events, it would have acquitted him of all the charges. The jury could not possibly have convicted Kesselring of kidnapping or criminal restraint based on Kesselring’s mere knowledge that others were going to talk to Miller about the missing drugs.
We find no error arising from the trial court’s failure to give the lesser included offense instructions.
Was Kesselring’s Right to a Fair Trial Violated by References to Polygraph Examinations Taken by Two WitnessesP
Next, Kesselring argues that his right to a fair trial was violated by the admission of testimony regarding polygraph examinations taken by Holmes and Reece. Kesselring concedes that he did not object to this testimony and, in fact, his own defense counsel elicited the testimony. Nonetheless, he contends the trial court could have corrected the error sua sponte pursuant to K.S.A. 22-3423 by declaring a mistrial.
We reject Kesselring’s argument on this point. “When a statement is elicited by defense counsel, the defendant may not complain of that error on appeal. [Citation omitted.]” State v. Hernandez, 253 Kan. 705, 716, 861 P.2d 814 (1993). Although the invited error rule cannot be used as pretext for violating a defendant’s constitutional rights, any error in the mention of the polygraph examinations does not rise to level of constitutional error. See State v. Deal, 271 Kan. 483, 492, 23 P.3d 840 (2001) (mere mention of the word “polygraph” is not grounds for a mistrial).
Did the Trial Court Err in Admitting the Hearsay Statements of Deceased Witness Reece P
Kesselring’s next argument is that the trial court erred in admitting the hearsay statements of Reece, deceased.
Kesselring cites to a number of places in the record where various witnesses testified about Reece’s statements. However, in most cases, no objection to the evidence was lodged. Kesselring asserts that specific objections were not made because he had a continuing objection to the hearsay. However, the record indicates otherwise. After considering Kesselring’s pretrial motion in limine, the trial court refused to make a blanket ruling that any statement made by Reece was inadmissible hearsay and informed defense counsel, “I will need to hear the questions and rule at the time the questions are asked, so make your objections then during the trial, please.”
Where a defendant fails to timely object at trial to alleged hearsay statements, he is precluded from challenging the admission of those statements on appeal. State v. Mays, 277 Kan. 359, 384, 85 P.3d 1208 (2004). Thus, only those hearsay statements to which defense counsel objected need be discussed.
Our standard of review begins with the general rule that “unless otherwise provided by statute, constitutional prohibition, or court decision, all relevant evidence is admissible. K.S.A. 60-407(f).” State v. Marsh, 278 Kan. 520, 530, 102 P.3d 445 (2004). Hearsay evidence is not admissible unless it falls within an exception recognized in K.S.A. 2004 Supp. 60-460. If a trial court errs in the admission or exclusion of evidence, the harmless error rule of K.S.A. 60-261 applies. Under that rule, an error in the admission or exclusion of evidence is not grounds for granting a new trial or setting aside a verdict unless refusal to take such action appears inconsistent with substantial justice. We “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” State v. Morris, 255 Kan. 964, 983, 880 P.2d 1244 (1994).
Our review of the record revealed only seven hearsay objections which were made during trial, one by the prosecutor and six by defense counsel. Almost every time an objection was made, the trial court either limited the answer to a “yes” or “no,” required the attorney to restate the question so it did not call for hearsay, or did not allow the question. We, therefore, need not discuss these questions and objections because, ultimately, no hearsay was admitted. There were only two exceptions.
First, during the prosecutors examination of Heather regarding a confrontation she had with Reece on the day after the murder, the following exchange took place:
“Q: Ms. Reece, I believe when we left off you had just left your father s house after confronting him, you and Mike got into a confrontation.
“A: Yeah.
“Q: What happened next?
“A: I got home and I asked him why.
“Q: You asked who, Mike Reece?
“A: Yeah, I asked Mike Reece why, why everything happened, why he had to — why things took place the way they did. Why did he involve my dad and just, you know, just asked him why, basically why.
“Q: What happened then?
“A: You know, he made the usual accusations that I said before about me and Dale and he wouldn’t be surprised if I was involved with him and just stuff like that and —”
At this point, defense counsel objected on the grounds that “anything further would be hearsay.” The prosecutor agreed, and the trial court asked the prosecutor to clarify his question. The prosecutor asked Heather to describe only what happened and not to talk about what Reece had said. Defense counsel did not ask that Heather s response be stricken as hearsay, and Heather did not attempt to further describe her conversation with Reece. These few words of hearsay were harmless.
Second, the prosecutor asked Callarman to describe the conversation Callarman heard between Kesselring, Holmes, and Reece on the morning after the murder. Defense counsel objected on the grounds that anything Reece said was hearsay. The trial court overruled the objection and admitted the testimony under the hearsay exception for statements of coconspirators. Callarman then testified that Reece asked where the body was and said that if the body was not buried and the shell casings not picked up then the job was not done right and had to be finished.
The court then reconsidered its ruling and determined that neither the coconspirator exception of K.S.A. 2004 Supp. 60-460(i)(2) nor the vicarious admissions exception of K.S.A. 2004 Supp. 60-460(i)(l) applied because the prerequisites for those exceptions had not been met. Specifically, the trial court found that, in order to be admissible, the statement must have been made by a third party and Callarman was himself a coconspirator, not a third party. Furthermore, to be admissible, the statement must have been made outside the presence of the accused, but, in this case, the statement was made while Kesselring was present. Although the court concluded it had erred in admitting the hearsay evidence, the court found that Callarman’s testimony about Reece’s statement was not prejudicial to Kesselring.
Kesselring does not specifically mention this one statement that was admitted over his objection, nor does he specifically challenge the trial court’s ruling with regard to that statement. Likewise the State has little to say, merely arguing that “the court took appro priate steps to ensure the situation was dealt with appropriately” and did not act arbitrarily, fancifully, or unreasonably; thus, the court did not abuse its discretion.
Because Kesselring has not briefed the issue of whether the trial court erred in finding Callarman’s testimony about Reece’s hearsay statement was admissible and then reversing its prior ruling and finding the evidence should not have been admitted but was not prejudicial, that issue is deemed abandoned. See State v. Martis, 277 Kan. 267, 295, 83 P.3d 1216 (2004) (issue not briefed is deemed abandoned). In any event, the trial court correctly ruled that any error in the admission of this single statement by Reece was harmless. See State v. Flynn, 274 Kan. 473, 513, 55 P.3d 324 (2002) (improper admission of hearsay evidence found to be harmless beyond a reasonable doubt). Additionally, this statement was not testimonial and, therefore, we need not engage in a constitutional harmless error analysis. See Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004); State v. Meeks, 277 Kan. 609, 613, 88 P.3d 789 (2004).
In addition to complaining about admission of Reece’s hearsay statements, Kesselring also argues the trial court erred in admitting the testimony of Agent Hupp regarding his interviews with various witnesses who testified at trial. All of that testimony was clearly admissible since the witnesses interviewed by Hupp were present at trial and available for cross-examination. See K.S.A. 2004 Supp. 60-460(a). The only time a hearsay problem arose was where Agent Hupp testified about what the witness told him Reece said. Kesselring accurately contends such evidence was double hearsay; however, Kesselring never objected to any of Agent Hupp’s testimony on hearsay grounds. His failure to make a contemporaneous objection requires us to reject his argument.
Did the Trial Court Err in Admitting Kesselring''s Mail into Evidence?
Kesselring’s final argument on appeal is that the trial court erred in admitting into evidence letters Kesselring wrote to his mother. Kesselring contends admission of the letters violated his Fifth Amendment right to be free from self-incrimination. Kesselring also intimates, without making a clear argument, that the seizure of the letters violated the Fourth Amendment to the United States Constitution because the letters were opened “as part of a pattern to detect drug trafficking and [defendant’s] expectation of privacy [was] violated.”
In responding to Kesselring’s argument, the State first discusses the letters Kesselring wrote to Callarman and the handwriting exemplars obtained from Kesselring. However, Kesselring is not challenging the admission of either his letters to Callarman or the handwriting exemplars. With regard to the letters to Kesselring’s mother, the State argues those letters were never seized by the State, therefore they could not have been admitted in violation of Kesselring’s Fourth Amendment rights.
There were several sets of letters and other examples of Kesselring’s handwriting admitted at trial, but the only letters to Kesselring’s mother were letters Kesselring himself offered as defense exhibits. Kesselring wrote those letters to his mother while he was in Norton Correctional Facility (Norton), and his mother testified it appeared the letters had been opened by Norton before being sent to her. Certainly, Kesselring cannot complain on appeal that the trial court erroneously admitted evidence which Kesselring himself introduced. See State v. Hebert, 277 Kan. 61, 78, 82 P.3d 470 (2004) (litigant may not invite trial court into error and then complain of error on appeal).
Furthermore, Kesselring did not object to the admission of any of the letters on the grounds that their seizure by Norton violated his constitutional rights; therefore, he is precluded from raising such an argument on appeal. See K.S.A. 60-404; State v. Diggs, 272 Kan. 349, 365, 34 P.3d 63 (2001) (party must make timely and specific objection to admission of evidence at trial in order to preserve issue for appeal).
Affirmed.
Lockett, J., Retired, assigned. | [
112,
-17,
61,
-18,
24,
-95,
58,
48,
122,
-25,
115,
115,
15,
-53,
1,
57,
-79,
63,
84,
105,
-30,
-73,
103,
97,
-46,
-77,
-7,
-43,
-78,
75,
-66,
-35,
13,
-16,
-118,
117,
-94,
10,
-63,
90,
-52,
20,
-94,
-14,
18,
81,
52,
58,
-2,
14,
113,
-98,
-93,
10,
22,
-41,
41,
56,
90,
-65,
64,
17,
-53,
7,
-55,
18,
-94,
6,
-72,
4,
-8,
60,
24,
48,
40,
-24,
-5,
-74,
-128,
116,
109,
11,
12,
102,
-125,
36,
76,
-19,
125,
-119,
46,
47,
-99,
-89,
29,
72,
65,
12,
-10,
-97,
98,
118,
10,
-8,
-1,
23,
29,
-20,
46,
-57,
-112,
-111,
77,
114,
-58,
58,
-5,
37,
39,
97,
-51,
114,
84,
85,
112,
-97,
75,
-47
]
|
In a letter dated May 16, 2005, addressed to the Clerk of the Appellate Courts, respondent Lany B. Spikes of Wichita, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2004 Kan. Ct. R. Annot. 296).
At the time the respondent surrendered his license, review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212 (2004 Kan. Ct. R. Annot. 285). The hearing panel found that the respondent violated Rules 1.15(b) (2004 Kan. Ct. R. Annot. 414), and 8.4(c) and (g) (2004 Kan. Ct. R. Annot. 485) of the Kansas Rules of Professional Conduct.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Larry B. Spikes be and is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Larry B. Spikes from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
Dated this 20th day of May, 2005. | [
-112,
-24,
-36,
93,
8,
64,
50,
29,
89,
-45,
119,
83,
-19,
-38,
20,
123,
-46,
109,
16,
123,
-59,
-74,
126,
64,
6,
-5,
-63,
-44,
-71,
95,
-26,
-67,
73,
56,
74,
-43,
70,
-54,
-115,
92,
-114,
2,
9,
-8,
-54,
-127,
-76,
41,
52,
11,
49,
-66,
-77,
106,
61,
65,
-88,
108,
-71,
-88,
81,
-111,
-104,
-107,
126,
81,
-77,
4,
28,
-123,
84,
-81,
-120,
59,
1,
-24,
115,
-90,
-122,
116,
79,
-39,
5,
103,
114,
33,
17,
-91,
-92,
-88,
47,
56,
-99,
-94,
-47,
88,
65,
-120,
-98,
-107,
101,
22,
3,
-4,
99,
70,
29,
-84,
30,
-50,
-60,
-77,
-50,
119,
-52,
27,
-5,
-57,
16,
85,
-105,
-27,
76,
71,
48,
-97,
-50,
-12
]
|
The opinion was delivered by
Luckert, J.:
A jury convicted Robert Buehler-May of premeditated first-degree murder, conspiracy to commit first-degree murder, and aggravated kidnapping. The trial court imposed a hard 50 life sentence for the murder conviction, 155 months’ imprisonment for the aggravated kidnapping conviction, and 117 months’ imprisonment for the conspiracy conviction, all sentences to run concurrently.
Buehler-May timely appeals his convictions and sentence, arguing the trial court erred in: (1) denying a motion filed on the first day of trial in which Buehler-May sought to endorse a psychiatrist as an expert witness; (2) admitting photographs of the murder victim which Buehler-May argues are gruesome and cumulative; (3) failing to instruct the jury that it should consider with caution the testimony of an accomplice; (4) applying the Kansas hard 50 sentencing provisions, which Buehler-May argues are unconstitutional; and (5) imposing a hard 50 sentence based in part upon a factor which the same judge had determined insufficient when sentencing a codefendant, Kyle Cavaness, whose conviction and sentence we upheld in State v. Cavaness, 278 Kan. 469, 101 P.3d 717 (2004).
We affirm.
Facts
Alisha Gray testified that in October 2002 she was living with her brother, Kyle Cavaness, and her boyfriend, Ryan Goldenburg, at a home in Wyandotte County. The victim, Deangelo Wheeler, was also staying at the home. Wheeler sold crack cocaine to Gray, Cavaness, and Goldenburg.
The defendant, Robert Buehler-May, was close friends with Gray and Cavaness but had never met the victim until the night of the murder. On October 9,2002, Buehler-May came over to Gray’s house. He stayed at the house while Gray went with Wheeler to purchase crack cocaine. Gray, Goldenburg, and Cavaness smoked the crack cocaine. Buehler-May was not smoking crack that night. In the early morning hours, Goldenburg and Wheeler left to purchase more crack cocaine while Gray, Cavaness, and Buehler-May waited at the house. When they returned, Wheeler accused the others of having stolen his marijuana joint while he was gone. Wheeler mainly accused Buehler-May, calling him a thief. Wheeler and Buehler-May got into a verbal argument. Eventually, after Buehler-May called Wheeler a “pussy,” Wheeler stood up. Gray did not see Wheeler with a weapon.
Gray believed the men were about to fight and went into her bedroom. The men went outside and Gray heard someone other than Wheeler say, “Hit him.” When the men carried Wheeler back into the house, he was badly hurt, not moving or saying anything, and he had a bleeding gash on his head. Whenever Wheeler woke up, the men, primarily Buehler-May, would continue to beat him. This happened about three times. Gray heard the men saying they could not let Wheeler go in that condition for fear of retaliation.
Gray’s next-door neighbor, Michael Dressier, testified that eitiier Cavaness or Goldenburg called him and asked him to bring over something with which to tie up Wheeler. When Dressier brought over some telephone wire, he saw Wheeler lying on the floor with his legs moving. When Dressier came back to the house about a half hour later, he saw that Wheeler’s legs were bound. He also heard Wheeler calling out, and Buehler-May “went in and quieted him down.”
Gray testified that about a half hour after the men brought Wheeler into the house, Buehler-May came into Gray’s bedroom and said he had broken Wheeler’s neck, killing him. Buehler-May and Goldenburg then wrapped Wheeler’s body in a taip and put him on the back porch.
On October 10, 2002, Buehler-May told his close friend Ashley McCann that he had murdered someone. McCann noticed a pile of bloody clothes and bloody shoes in Buehler-May’s bedroom. Later the same day, McCann and Buehler-May drove to Cavaness’ house to buy some marijuana. Gray, Goldenburg, and Cavaness were at the home. Buehler-May, Goldenburg, and Cavaness began bragging and laughing about how they had beaten and eventually killed the victim the night before. Buehler-May said he had snapped the victim’s neck. He also pointed out to McCann where the victim’s body was outside. McCann heard the men discussing whether to bum the body or dump it in the river. The next day, McCann contacted police.
After Buehler-May was arrested, he was interviewed by Detective Lawson. Buehler-May waived his Miranda rights and made a videotaped statement which was played for the juiy and is included in the record on appeal. In that statement, Buehler-May admitted his involvement in the murder. Buehler-May stated that when the argument escalated and the men went outside, Buehler-May hit the victim with a wooden dowel, Cavaness hit him with a baseball bat, and Goldenburg hit him with bolt cutters. They then dragged the victim back inside the house to keep him out of sight. Inside the house, all three men continued to beat the victim whenever he regained consciousness. The men then placed bags over the victim’s head in an attempt to hasten his death. Buehler-May estimated that at least 2 and Vz hours elapsed from the time the beating began until the victim died.
Cavaness showed police where the men had thrown Wheeler’s body into the river and where they had burned the clothes they had been wearing on the night of the murder. An underwater search and rescue team located Wheeler’s body a few days after the murder. The body was wrapped in a blue tarp with two large bricks attached. The victim’s head was covered by a white plastic bag; his arms were tied behind his back and his anides were tied together.
Forensic pathologist Dr. Erik Mitchell performed the autopsy. He testified that Wheeler had multiple injuries to his head consistent with being struck by a hard object like a baseball bat or bolt cutters. Wheeler’s brain was bruised and swollen as a result of his injuries. His neck was also bruised but not broken. Dr. Mitchell testified that Wheeler died as a result of all of the blows to his head. He stated, “I cannot isolate one injury and say this is the one that did it, the others are not important.” Dr. Mitchell stated that asphyxia due to the plastic bags placed over Wheeler’s head might also have contributed to his death.
Buehler-May’s defense was a combination of self-defense and compulsion. He testified that when the fight escalated and moved outside, he armed himself with a wooden pole because he thought Wheeler had a knife. According to Buehler-May, Cavaness and Goldenburg struck Wheeler first. Buehler-May also struck Wheeler, but then tried to stop Cavaness and Goldenburg from further attacking him. When Buehler-May struck Wheeler, he thought Wheeler was coming at him.
Buehler-May also testified that after the men brought Wheeler in the house, Cavaness and Goldenburg continued beating him. Buehler-May suggested taking Wheeler somewhere and dropping him off, or calling the police and telling them Wheeler had broken into the house so that he could get medical attention. At that point, Goldenburg and Cavaness began threatening Buehler-May, telling him it did not matter if there was one body or two and threatening to go after Buehler-May’s brother. Goldenburg and Cavaness were adamant that Wheeler could not be allowed to survive because of the repercussions from Wheeler’s friends. They told Buehler-May to place a bag over Wheeler’s head and tie it, which he did. When Wheeler still did not die, they told Buehler-May to choke him.
Buehler-May’s trial testimony differed from his interview with police in that he never told the police that he had seen Wheeler with a knife or that he had been threatened by Cavaness or Goldenburg.
Did the Trial Court Abuse its Discretion by Refusing to Endorse Defense Witness Dr. Montolio on the Morning of TrialP
On the morning of trial, defense counsel filed a motion to endorse Dr. Montolio, Buehler-May’s childhood psychologist, as a witness. The motion stated that Dr. Montolio had recently performed a clinical examination of Buehler-May and provided defense counsel with a copy of his report the day before trial. According to Dr. Montolio’s report, he had treated Buehler-May for approximately 10 years while Buehler-May was between the ages of 6 and 16. Buehler-May had been diagnosed with a variety of mental disorders and was prescribed several medications but often failed to take them. Dr. Montolio concluded that although Buehler-May remembered the events on the night of the murder, because Buehler-May was “without sleep and at the time not being medicated, this examiner can state with a relative degree of medical certainty that his judgment was impaired on the night in question due to cognitive impairment and possible transient psychotic thoughts brought on by his Bi-Polar disorder.” Dr. Montolio was out of town until the fourth day of trial and could be reached only by telephone.
In arguing the motion, defense counsel mentioned that he had informed the trial court a week earlier that he was awaiting the results of the evaluation and that Dr. Montolio had seen BuehlerMay as an adolescent. In support of the motion to endorse, defense counsel argued that Dr. Montolio’s report showed that BuehlerMay’s cognitive problems and mental disorders impaired his judgment and asked that Dr. Montolio be allowed to testily “about whether or not that rose to the level of a defense in this case.”
The prosecutor objected to the late endorsement of Dr. Montolio, arguing that if Dr. Montolio’s report and testimony were being offered as evidence of a mental disease or defect which prevented Buehler-May from forming the requisite intent, then Buehler-May had failed to give the notice required by K.S.A. 22-3219. If the evidence was not being offered to show lack of mental state, then it was irrelevant and inadmissible.
The trial court ruled that, assuming Buehler-May s motion was intended to constitute notice of his intention to assert lack of mental state as a defense pursuant to K.S.A. 22-3219, his motion was untimely and he had failed to establish good cause for filing it out of time. Thus, the trial court denied Buehler-May’s motion to endorse Dr. Montolio as a witness.
K.S.A. 22-3219(1) requires a defendant to file a written notice of the intent to assert a defense that the defendant, because of mental disease or defect, lacked the mental state required as an element of the offense charged. “Such notice must be served and filed before trial and not more than 30 days after entry of the plea of not guilty to the information or indictment.” K.S.A. 22-3219(1).
The motion to endorse, if considered a notice of the defense, was not filed until July 21, 2003. Buehler-May was arraigned on November 26,2002. Clearly, a motion filed on die trial date, almost 7 months after Buehler-May had entered a plea of not guilty, did not comply with the statute.
However, the statute allows the district court to permit notice at a later date for good cause shown. K.S.A. 22-3219(1).
In his motion to endorse Dr. Montolio, defense counsel explained he had not received the doctor s report until 4:15 p.m. on July 20. In arguing the motion, defense counsel stated that Buehler-May’s family had been unable to retain Dr. Montolio to evaluate him until the end of June or beginning of July because of financial difficulties. Then, after Dr. Montolio met with BuehlerMay around July 11, he had to wait for test results before preparing his report.
The trial court rejected these justifications for the late filing, concluding Buehler-May had not established good cause for the delayed notice. In order to succeed on appeal, Buehler-May must demonstrate that the trial court abused its discretion in so ruling. See State v. Boyd, 216 Kan. 373, 379, 532 P.2d 1064 (1975). In other words, he must show that the trial court’s decision was “arbitrary, fanciful, or unreasonable. If reasonable persons could differ on the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Martis, 277 Kan. 267, 280, 83 P.3d 1216 (2004).
Buehler-May fails to meet this burden. Buehler-May s jury trial was originally set for February 2003, but was continued at his request so tihat he could obtain a competency determination. Buehler-May was found competent to stand trial, and his trial was rescheduled for July 21, 2003. The fact that Buehler-May requested a competency determination shows that there was some question as to his mental status well before his July 2003 trial setting and that there was more than sufficient time for any necessary mental examinations. Furthermore, if financial difficulties were die problem, Buehler-May could have filed a motion pursuant to K.S.A. 22-4508 (expert and other services in non-public defender cases) requesting the State to pay for a psychiatric examination.
Additionally, Buehler-May argues that State v. Bright, 229 Kan. 185, 623 P.2d 917 (1981), requires a trial court to consider seven factors in determining whether to exclude the testimony of a defense witness, and the trial court failed to consider those factors in this case. Bright requires the trial court to:
“(1) Inquire why the witness or witnesses were not disclosed;
“(2) determine when the witness first became known to defense counsel, and whether the nondisclosure was willful or inadvertent;
“(3) determine whether the proposed testimony is trivial or substantial, whether it goes to an important or minor issue;
“(4) determine the extent of prejudice to the State, and the importance of the witness to the defense;
“(5) determine any other relevant facts;
“(6) grant the State a recess if prejudice can be avoided or reduced by such action; and
“(7) avoid imposing the severe sanction of prohibiting the calling of the witness if at all possible. This should be viewed'as a last resort.” 229 Kan. at 194.
Bright offers “solid guidelines for the trial court in determining whether to allow a party in a criminal prosecution to call a witness or witnesses not disclosed but required to be disclosed prior to trial.” State v. Claiborne, 262 Kan. 416, 423, 940 P.2d 27 (1997).
This court has not previously considered the effect of the Bright factors upon a motion to endorse a witness whose testimony would relate to a defense of lack of mental state. However, the applica bility of the Bright factors has been considered in the context of an alibi defense, another affirmative defense which has a statutorily imposed notice requirement. K.S.A. 22-3218. In the context of the alibi defense, we have held that the trial court must consider the Bright factors when a defendant has given notice of an alibi defense as required by K.S.A. 22-3218 and later seeks to endorse an additional alibi witness not originally disclosed to the State. State v. Douglas, 234 Kan. 605, 675 P.2d 358 (1984). However, in Claiborne, where notice of an alibi defense had not been given and the defendant knew or should have known about the proffered alibi witness long before trial, it was held that the trial court did not abuse its discretion in excluding the witness or in fading to consider the Bright factors. Claiborne, 262 Kan. at 424; see also State v. Gibson, 30 Kan. App. 2d 937, 952, 52 P.3d 339, rev. denied 274 Kan. 1115 (2002) (Bright factors do not apply where defendant failed to follow statutory notice requirements for alibi defense). There is no basis for a different rule when a defense under K.S.A. 22-3219 is asserted. We conclude that the trial court did not err in failing to consider the Bright factors where notice of a defense under K.S.A. 22-3219 had not been given and the only basis of relevance was to prove the defense allowed under that provision.
Furthermore, since Buehler-May failed to appropriately raise a defense of lack of mental state due to mental disease or defect, there is no other basis upon which to justify application of the Bright factors or to otherwise argue that the evidence should have been admitted. “Evidence of a defendant’s mental capacity to commit a specific act is not admissible where a mental disease or defect defense under K.S.A. 22-3219 has not been raised.” State v. Papen, 274 Kan. 149, Syl. ¶ 3, 50 P.3d 37 (2002).
Finally, Buehler-May argues that the trial court’s decision infringed upon his constitutional right to present his theory of defense. He contends that, if the prosecution needed additional time to prepare, the court could have continued the trial. Buehler-May acknowledges he did not specifically request a continuance; however, in making its ruling, the trial court recognized that granting Buehler-May’s motion would necessitate a continuance so that the prosecution could talk to Dr. Montolio and it would be months before the trial could be rescheduled.
Although this court has not considered the issue with regard to a defense pursuant to K.S.A. 22-3219, we have determined that the notice required when a defendant relies upon an alibi defense does not deprive a defendant of the constitutional right to present a defense. Claiborne, 262 Kan. at 423. The United States Supreme Court reached the same conclusion in Williams v. Florida, 399 U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970), noting that the purpose of a notice provision is to “enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence.” 399 U.S. at 82. The Court also concluded that at most the notice requirement accelerates the time when the nature of the defense must be divulged. “Nothing in the Fifth Amendment privilege entitles a defendant as a matter of constitutional right to await the end of the State’s case before announcing the nature of his defense.” 399 U.S. at 85.
The appellate courts of other states have applied the rationale of Williams in concluding it is not unconstitutional to require notice of an intent to plead insanity, to assert a lack of mental state defense, or to present evidence regarding mental condition as a mitigating factor at sentencing. See, e.g., Jackson v. State, 267 Ga. 130, 475 S.E.2d 637 (1996); Thomas v. State, 420 N.E.2d 1216 (Ind. 1981); State v. Bentley, 155 Mont. 383, 472 P.2d 864 (1970); State v. Reid, 981 S.W.2d 166 (Tenn. 1998).
Similarly, the notice requirements of K.S.A. 22-3219 do not deprive a defendant of his or her constitutional due process right to defend against the State’s case or the constitutional right to a fair trial.
Buehler-May has not established error in the trial court’s decision to deny the motion to endorse the psychiatrist’s testimony.
Did the Trial Court Abuse its Discretion in Admitting into Evidence Photographs of the Murder Victim?
Buehler-May’s next argument is that the trial court abused its discretion in admitting numerous pictures of the victim’s body. He contends these pictures were gruesome, overly repetitious, and served only to inflame the jury. He also contends their probative value was limited because the cause of death was not disputed.
Buehler-May lodged a contemporaneous objection to the introduction of some of the photographs but not others. Where the defendant did not object to the admission of a photograph, he or she has failed to preserve the issue for appellate review. K.S.A. 60-404; State v. Sims, 262 Kan. 165, 169-70, 936 P.2d 779 (1997) (failure to object to admission of evidence at trial court level precludes review by appellate court).
Furthermore, there is no merit to his argument. In Cavaness, this court stated the rules applicable to appellate review of the admission of photographs into evidence:
“Generally, all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as ‘evidence having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b). As we recently stated:
‘Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible.’ [State v. Parker, 277 Kan. 838, Syl. ¶ 5, 89 P.3d 622 (2004)].” Cavaness, 278 Kan. at 477.
Exhibit 5 is a photograph of the victim’s face; Alisha Gray identified the victim from this picture. Crime scene investigator Kim Crockett testified about exhibits 60 through 75. Exhibits 60 through 62, which are photographs not at issue in Cavaness, are aerial photographs of the underwater rescue team as it recovered the victim’s tarp-wrapped body from the river. Exhibits 63 through 67 showed the way the body was wrapped in a tarp with bricks attached, and exhibits 68 through 75 showed how the body was bound and a plastic bag placed over his head. The remaining exhibits were autopsy photographs which showed the different injuries to the victim’s head.
In Cavaness, Buehler-May’s codefendant’s appeal, this court considered the same arguments with regard to the same photographs (except exhibits 60 through 62 which were not at issue in Cavaness) and determined that all of the photographs were relevant because they showed the violent nature of the victim’s death, aided the medical examiner in explaining the cause of death, and provided evidence of premeditation, a contested element of the crime. Cavaness, 278 Kan. at 477-78. Furthermore, we note that all of the pictures were relevant to corroborate the testimony of witnesses.
In his brief, Buehler-May contends that the cause of death was not disputed. However, even where a defendant concedes the cause of death, the prosecution still bears the burden of proving all of the elements of the crime charged. State v. Groschang, 272 Kan. 652, 667, 36 P.3d 231 (2001). Furthermore, the cause of death was at issue in this case where there was testimony that Buehler-May snapped the victim’s neck and conflicting evidence that the victim’s neck was not broken and that he had died of multiple head injuries instead. The cause of death was also important because the defense contested the element of premeditation.
All of the complained-of photographs were relevant. However, as discussed in Cavaness, there is an additional consideration because, even though the photographs are relevant, we have recognized that the trial court has discretion to exclude relevant evidence.
“While the admission of gruesome photographs is rarely held to be an abuse of discretion, this court has done so in cases where the probative value was slight and the prejudicial effect great (other grounds for a mistrial were present). State v. Harris, 259 Kan. 689, 710, 915 P.2d 758 (1996). An abuse of discretion may be reached if the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice. State v. Spears, 246 Kan. 283, 286, 788 P.2d 261 (1990).” State v. Deal, 271 Kan. 483, 493, 23 P.3d 840 (2001).
In Cavaness, we determined that the trial court had not abused its discretion in admitting the same photographs which were admitted in this case. Cavaness, 278 Kan. at 478. Buehler-May, who has the burden to establish the abuse of discretion (see State v. Bey, 270 Kan. 544, 546, 17 P.3d 322 [2001]), presents no argument which would lead to a different result in this case. Furthermore, the photographs which were admitted in this case but not disputed as part of Cavaness’ appeal, exhibits 60 through 62, are aerial photographs which are not gruesome or unduly cumulative.
Buehler-May has failed to establish error in the rulings to introduce the photographs into evidence.
Did the Trial Court Err hy Failing to Instruct the Jury to ConsiderWith Caution the Testimony of an Accomplice?
Next, Buehler-May argues the trial court erred in failing to instruct the jury to consider with caution the testimony of accomplices Alisha Gray and Michael Dressier. Buehler-May acknowledges he did not request such an instruction and that this court should reverse only if it finds the failure to give the instruction was clearly erroneous. See State v. Crume, 271 Kan. 87, 93, 22 P.3d 1057 (2001). The failure to give an instruction is clearly erroneous only if the appellate court reaches a firm conviction that, had the instruction been given, there was a real possibility the jury would have returned a different verdict. State v. Boone, 277 Kan. 208, 220, 83 P.3d 195 (2004).
According to Buehler-May, both Gray and Dressier had incentives to downplay their own involvement in the crime and overstate Buehler-May’s involvement. He argues the jury should have been instructed consistent with PIK Crim. 3d 52.18, which provides:
“An accomplice witness is one who testifies that (he)(she) was involved in the commission of the crime with which the defendant is charged. You should consider with caution the testimony of an accomplice.”
In determining whether prejudicial error has occurred in the failure to give an accomplice instruction, courts generally look to the extent and importance of the accomplice testimony, as well as any corroborating testimony. State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995).
Other than Buehler-May, Gray was the only person to testify who was present during the entire incident. She described the events leading up to the murder, the relationships of the parties, and the participation of Buehler-May, Cavaness, and Goldenburg in the murder. Although she did not actually see any of the men hit Wheeler, Gray’s testimony was an important part of the State’s case.
Dressier, the next-door neighbor who brought wire over to the house to bind the victim, saw the injured Wheeler lying on the floor. While Dressier was in the bedroom with Gray, he heard Buehler-May go into the living room to “quiet up” Wheeler. Dressler’s testimony was also important, though less so than Gray’s.
Although both Gray and Dressier were important witnesses, the most damning evidence came from Buehler-May himself in the form of his videotaped statement to police. In that statement, Buehler-May corroborated the testimony of both Gray and Dressier. Buehler-May admitted that he had participated along with Cavaness and Goldenburg in beating the victim both outside and inside the house. He also admitted helping to tie up the victim and placing plastic bags over the victim’s head to hasten his death.
In addition, both Gray and Dressier were questioned about their plea bargain arrangements in front of the jury. Gray testified that she was charged with aiding a felon and pleaded guilty to a reduced charge of attempting to aid a felon in exchange for her testimony against Cavaness and Buehler-May. Dressier testified that he was charged with and pleaded guilty to aiding a felon for his participation in the murder. His parole was also revoked and he was in custody at the time he testified. Defense counsel had the opportunity to cross-examine both Gray and Dressier about their motives for testifying.
Furthermore, “[t]he failure to give an accomplice instruction is not reversible error if the defendant’s guilt is plain, [citation omitted], or if the judge provided another instruction which cautioned the jury about the weight to be accorded testimonial evidence.” Crume, 271 Kan. at 94-95. Here, as in Crume, the jury was instructed consistent with PIK Crim. 3d 52.09: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
Given Buehler-May’s corroborating statement, defense counsel’s cross-examination of Gray and Dressier about their plea bargain arrangements and motivation for testifying, and the trial court’s instruction on witness credibility, the trial court’s failure to give an accomplice instruction was not clearly erroneous.
Is Kansas’ Hard 50 Sentencing Scheme Unconstitutional?
Buehler-May s next argument on appeal is that the Kansas hard 50 sentencing scheme is unconstitutional because it does not afford criminal defendants their right to have a jury determine beyond a reasonable doubt all facts which might increase the maximum penalty for first-degree murder. Buehler-May recognizes that this court has already rejected this argument but raises the issue to preserve it for federal review.
Buehler-May s challenge to the hard 50 sentencing scheme is based on the holding of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This court addressed a similar challenge to the hard 40 sentencing scheme in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), concluding that the sentencing statutes were not unconstitutional because the hard 40 sentence did not increase the maximum length of Conley s life sentence but limited the lower end of the sentence in a manner consistent with McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986) (facts that do not increase defendant’s punishment beyond that authorized by the underlying statute need not be proven to a jury beyond a reasonable doubt).
In State v. Douglas, 274 Kan. 96, 111, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003), this court relied on Conley in holding that the hard 50 sentencing scheme is constitutional. The court reaffirmed that ruling in State v. Boldridge, 274 Kan. 795, 812, 57 P.3d 8, cert. denied 538 U.S. 950 (2003); State v. Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004); and subsequent cases. BuehlerMay has cited no new authority post-dating those cases which might convince this court to alter its position.
Buehler-May contends that the Apprendi majority is likely to revisit the McMillan decision in the future. However, the State points out that the United States Supreme Court recently did so in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), and distinguished McMillan rather than overruling it. We recently determined in State v. Hurt, 278 Kan. 676, 101 P.3d 1249 (2004), that Blakely does not affect this court’s analysis in Conley and, once again, we reaffirm that conclusion.
Did the Trial Court Err By Imposing a Hard 50 Sentence Based Upon the Aggravating Factor That the Murder was Committed in an Especially Heinous, Atrocious, or Cruel MannerP
Finally, Buehler-May challenges the trial court’s imposition of the hard 50 sentence based upon the finding that the killing was committed in an especially heinous, atrocious, or cruel manner. When a defendant challenges the sufficiency of evidence for establishing tire existence of an aggravating circumstance in a hard 50 sentencing proceeding, the standard of review is “ whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found the existence of the aggravating circumstances by a preponderance of the evidence.’ [Citations omitted.]” State v. Boldridge, 274 Kan. 795, 808, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003).
K.S.A. 2004 Supp. 21-4636(f) provides that, for purposes of the hard 50 sentencing scheme, one aggravating circumstance is that the defendant committed the crime in an especially heinous, atrocious, or cruel manner. The following conduct by a defendant is deemed sufficient to establish this aggravating circumstance:
“(1) Prior stalking of or criminal threats to the victim;
“(2) preparation or planning, indicating an intention that the killing was meant to be especially heinous, atrocious or cruel;
“(3) infliction of mental anguish or physical abuse before the victimrs death;
“(4) torture of the victim;
“(5) continuous acts of violence begun before or continuing after the killing;
“(6) desecration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing; or
“(7) any other conduct in the opinion of the court that is especially heinous, atrocious or cruel.” K.S.A. 2004 Supp. 21-4636(f).
In this case, the trial court found that the defendant committed the crime in an especially heinous, atrocious, or cruel manner based upon several different factors. First, the court found that Buehler-May had inflicted mental anguish and physical abuse before the victim’s death, conduct specified as sufficient to be considered heinous, atrocious, or cruel under K.S.A. 2004 Supp. 21-4636(f)(3). A rational factfinder could have found these facts by a preponderance of the evidence.
Although the court mentioned torture, another factor specified at K.S.A. 2004 Supp. 21-4636(f)(4), it did not make a clear finding that the victim was tortured. The court stated, “I suppose that that would constitute torture, that torture is not necessarily something additional to that, but that’s certainly within the realm of what we’re talking about here.”
As a third factor weighing toward the conclusion that the murder was committed in an especially heinous, atrocious, cruel manner, the trial court concluded that there were continuous acts of violence as specified in K.S.A. 2004 Supp. 21-4636(f)(5). Buehler-May contends the trial court found the same evidence to be insufficient to show continuous acts of violence as an aggravating factor in Cavaness’ case. However, this contention cannot be verified in the record on appeal because it does not contain a transcript of Cavaness’ sentencing proceeding. There is no indication in the record whether the trial court considered and rejected continuous acts of violence as an aggravating factor in Cavaness’ case. Further, there is sufficient evidence of continuous acts of violence begun before the death to satisfy the standard of review.
Finally, the court found that the victim’s body was desecrated. The court stated:
“As to Mr. Cavaness, when I ruled upon this, I ruled that the [victim’s] body was not desecrated. I think had I given — having thought this matter over, I would probably have ruled differently as to that. The fact that the body was wrapped in a tarp, was left in a house for a day or so and then thrown in the river, upon reflection, I think that does indicate a desecration to some extent.”
Buehler-May argues that the trial court’s finding of desecration is unsupported by the evidence. He contends that bodies naturally decompose after death and his actions merely speeded up that process. He also argues there is nothing unique about attempting to conceal a body by wrapping it in a tarp and throwing it in a river which sets this case apart from the typical murder case.
K.S.A. 2004 Supp. 21-4636(f)(6) requires a “desecration of the victim’s body in a manner indicating a particular depravity of mind, either during or following the killing.” We need not determine whether there is evidence to support the requirement of desecration because the trial court did not make the required finding that there was an indication of a particular depravity of mind and there is not sufficient evidence to support such a conclusion. “Particularly” means “to a great degree.” Webster’s II New College Dictionary 801 (1999). Depraved means “heinous; morally horrendous.” Black’s Law Dictionary 473 (8th ed. 2004). Thus, a defendant’s actions must be heinous to a great degree to meet the threshold for this factor to apply. The secreting of a body is commonly part of the criminal scheme. While such conduct offends the communities’ moral sensibilities and is reprehensible, it is not an action which we would find to be per se heinous to a great degree. Certainly, under some facts the manner of hiding or disposing of a body may be particularly depraved. In this case, however, the evidence that the body was wrapped in a tarp and placed in a river does not support a conclusion that Buehler-May’s actions were particularly depraved.
Even though we conclude that the evidence does not support this one factor, there are other factors which support the conclusion that Buehler-May’s actions were particularly heinous, atrocious, and cruel. K.S.A. 2004 Supp. 21-4636(f) does not require that all of the listed factors apply, stating that “any of the following conduct by the defendant may be considered sufficient” to conclude that the murder was committed in an especially heinous, atrocious, or cruel manner. Thus, a finding that a crime was committed in an especially heinous, atrocious, or cruel manner will not be overturned on appeal if there is sufficient evidence, when reviewed in the light most favorable to the prosecution, for a rational factfinder to find the existence of any one of the types of conduct specified by K.S.A. 2004 Supp. 21-4636(f).
In this case, because there is sufficient evidence to support such a conclusion as to the existence of several factors, including those under K.S.A. 2004 Supp. 21-4636(f)(3) and (5), there is sufficient evidence to support the conclusion that Buehler-May committed the murder in an especially heinous, atrocious, or cruel manner. The trial court’s use of the aggravating factor in determining Buehler-May’s sentence was not erroneous.
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
80,
-30,
-3,
60,
59,
96,
42,
-80,
106,
-29,
36,
115,
105,
-51,
1,
57,
22,
-33,
85,
105,
65,
-105,
39,
-55,
-14,
-77,
-7,
-48,
-78,
75,
-66,
-43,
13,
112,
14,
85,
-90,
74,
-75,
88,
-114,
0,
-96,
-16,
-62,
66,
36,
123,
94,
14,
113,
-114,
-77,
43,
22,
79,
73,
60,
91,
-83,
-64,
-79,
-24,
-121,
-53,
18,
-125,
-92,
-67,
7,
-40,
30,
-100,
57,
9,
-24,
115,
-122,
-122,
84,
77,
9,
-124,
102,
35,
33,
21,
-51,
109,
-127,
14,
63,
-115,
39,
24,
73,
65,
44,
-41,
-41,
116,
50,
47,
-6,
-17,
28,
45,
-4,
-127,
-41,
-78,
-111,
-49,
116,
-42,
-7,
-21,
37,
32,
97,
-51,
-30,
86,
85,
120,
-101,
-50,
-44
]
|
The opinion of the court was delivered by
Gernon, J.:
Vemon D. Harris, III, appeals his conviction for first-degree felony murder, claiming that his confession was involuntary, the prosecutor improperly commented on his decision not to testify, the trial court allowed improper hearsay evidence, and the trial court should have granted his motion for a new trial based on newly discovered evidence.
Police found Bennie Zeigler’s body lying in the street at approximately 11:48 a.m. on December 31, 2001. Zeigler had died from a gunshot wound to the head. Patricia Shelinbarger, a neighborhood resident, witnessed the shooting and notified police.
Immediately prior to the shooting, two black men and a woman approached Shelinbarger’s house and knocked on her door. Shelinbarger observed the people at the door through her window. Shelinbarger was acquainted with the woman, Lana Jackson, so she sent her daughter to answer the door. After the three people spoke with Shelinbarger’s daughter for 3 or 4 minutes, they left Shelinbarger’s front door and returned to a car parked along the curb. A couple of minutes later, a fight broke out between the two men in the street while Jackson watched from the grass near the curb. Shelinbarger was concerned about her dog in the front yard, so she decided to bring him in. As she was opening the door, she heard two gunshots and saw Jackson run around to the driver’s side of the car. One of the men pushed Jackson into the front seat before getting into the back seat, and the two sped away; the other man was left lying in the street.
Initially, Shelinbarger and her daughter identified the shooter as Terence Harvell, a man they had met the night before at a party. However, the police interviewed Harvell and concluded that he had a valid alibi for the time of the shooting.
Jackson told police that Harris shot Zeigler while trying to rob him during a drug sale. Harris was arrested and, after being advised of his Miranda rights, agreed to talk to Detective Chisholm and his.partner; :Hai;ris.dnitially-told'police.tliathe was not present.during the shooting incident but later told several different stories about what happened. Ultimately, Harris told Detective Chisholm that he had gone with Jackson and another man named Eric Donaldson to watch his friends’ backs during a drug deal. Harris claimed that Donaldson was the shooter.
Relying on Harris’ confession, the State prosecuted Harris for one count of felony murder on the theory that Zeigler was killed during the course of a drug sale. Harris defended himself by trying to demonstrate that he could not have been at the scene of the crime. Harris had been living at Mirror, Incorporated (Mirror), a correctional facility in northern Wichita that allowed residents privileges for working or visiting family offsite. According to Mirror’s sign-out log, Harris signed out of the facility at 8 a.m. and again at 11:25 a.m. on December 31, 2001. Aldiough the sign-out log did not indicate that Harris signed back in between 8 a.m. and 11:25 a.m., a back-up log maintained by Mirror’s employees indicated that Harris returned at 9 a.m. The State highlighted several irregularities between the employees’ log and the residents’ log, and the Mirror supervisor acknowledged that Mirror’s employees had not done their jobs like they were supposed to. Harris argued that he could not have traveled from Mirror on the north side of Wichita to the murder scene on the south side of Wichita in the 15 minutes between 11:25 a.m. when he signed out of Mirror and approximately 11:40 to 11:48 a.m. when the shooting occurred.
A juiy convicted Harris of one count of felony murder, and the court sentenced him to life in prison with a minimum of 20 years before he could be paroled. Harris appeals his conviction directly to this court pursuant to K.S.A. 22-3601(b)(1), which gives this court jurisdiction over any appeal that results from a conviction for an off-grid crime or from a sentence of life imprisonment.
Harris claims that the trial court should not have allowed his confession to be admitted at trial because it was not voluntary. He argues that his confession was involuntary because he was confined in a small room for nearly 7 hours while shackled to the floor, he was isolated and prevented from communicating with tire outside world, and the police used unfair and deceptive interrogation techniques.
The suppression of a confession is reviewed using a dual standard. First, the factual findings are reviewed using a substantial competent evidence standard. An appellate court does not reweigh the evidence or pass on the credibility of witnesses but gives deference to the trial court’s factual findings. Second, the ultimate legal conclusion drawn from the trial court’s factual findings is a question of law which is reviewed de novo. See State v. White, 275 Kan. 580, 596-97, 67 P.3d 138 (2003).
In determining whether a confession is voluntary, a court must look at the totality of the circumstances and consider four factors: (1) the duration and manner of the interrogation; (2) the ability of the accused to communicate on request with the outside world; (3) the age, intellect, and background of the accused; and (4) the fairness of the officers in conducting the interrogation. The key inquiry is whether the statement is a product of the accused’s free and independent will. White, 275 Kan. at 597. Coercion in obtaining a confession can be mental or physical. State v. Caenen, 270 Kan. 776, 784, 19 P.3d 142 (2001).
Duration and manner
After being arrested, Harris was handcuffed and taken to the police station at approximately 12:30 p.m. He was placed in a 10 foot by 10 foot interview room, the handcuffs were removed, and he was shackled to the floor. Although he was allowed to take bathroom breaks as needed, Harris remained in an interview room until 7:14 p.m., when he was taken to the county jail. During the nearly 7-hour period that Harris was at the police station, detectives only interviewed him for about 2 and Vz hours. The remainder of the time, Harris was alone in the interview room. The interview ended when Harris became agitated with the detectives and tore up one of the detective’s notes.
Harris complains that his interrogation was coercive because he was shackled throughout the process and the interrogation lasted too long. Harris fails to cite any case law establishing that a nearly 7-hour detention is too long. Likewise he has not pointed to any case law to support his proposition that his confession was involuntary because he was restrained by shackles.
This court has previously determined that 7 hours is not too long to detain an accused for a custodial interrogation. In State v. Brown, 258 Kan. 374, 394-95, 904 P.2d 985 (1995), this court concluded that it was not coercive to interrogate a 17-year-old defendant with a 10th grade education for 7 hours before he confessed to murder. Like Harris, Brown only spent about 2 and Vz hours being interviewed by officers. The remainder of the time, Brown was alone in a room. However, unlike Harris, Brown was not restrained during the interrogation.
Although the defendant in Brown was not handcuffed or shackled during his interrogation, other case law establishes that this case is not distinguishable based on that fact. In State v. Makthepharak, 276 Kan. 563, 78 P.3d 412 (2003), a 16-year-old defendant was handcuffed to a table during a 5 and 1/2-hour interrogation. Nevertheless, the Makthepharak court concluded that the defendant’s confession was voluntarily. 276 Kan. at 568.
Because case law fails to support Harris’ claim that his confession was coerced by a lengthy interrogation in which he was shackled to the floor, this factor does not weigh in favor of finding Harris’ confession involuntary.
Ability to communicate on request with the outside world
Even though he did not request an attorney, Harris claims that he was isolated in the interview room and denied access to the outside world. Detective Chisholm denied using isolation as an interrogation technique but admitted that Harris’ request to use tire phone to call someone regarding an alibi was denied. The record does not indicate whom Harris wanted to call- or what tire substance of the call would have been.
Harris fails to cite any authority to support his claim that his confession was involuntary because his request to use the phone was denied. In State v. Bell, 276 Kan. 785, 797-99, 80 P.3d 367 (2003), this court concluded that a 16-year-old defendant’s confession was voluntary even though police failed to get the defendant’s mother as requested and the defendant’s mother was denied access to him until after he made a statement. Accordingly, the denial of Harris’ request to talk to someone about a possible alibi does not weigh in favor of finding Harris’ confession involuntary.
Age, intellect, and background of the accused
Harris was 24 years old at the time of his interrogation for Zeigler’s murder. He had numerous juvenile adjudications and felony convictions beginning in 1990. He responded coherently and appropriately to questions regarding his personal history, denied consuming any alcohol or illegal drugs, but admitted that he had taken cold medicine and was using an inhaler before the interview. Harris does not claim any mental incapacity but, instead, argues that there was no evidence that he had been interrogated by police before his interrogation in this case. This argument is disingenuous given Harris’ 12-year record, which includes convictions or juvenile adjudications for 45 prior charges. This factor does not weigh in favor of finding Harris’ confession involuntary.
Fairness of the officers conducting the investigation
Harris argues that his confession was coerced because his interrogators lied to him about their investigation. Specifically, Harris complains that Detective Chisholm lied to him about being identified by several people who witnessed the shooting and claimed to have physical evidence that did not exist. Harris also claims that the police refused to tell him that the eyewitnesses had identified someone else. Finally, Harris claims that his confession was coerced by trickery.
The record, however, does not substantiate Harris’ claims that the police lied about what other witnesses were saying. Although Detective Chisholm’s statements might have been interpreted ambiguously by Harris, the statements were not lies. Detective Chisholm told Harris, “I’ve talked to a number of people and I have been hearing that you were there.” Detective Chisholm did not indicate how many people said Harris was at the shooting. Harris just assumed that several people said he was there.
Harris also argues that Detective Chisholm lied about whether Harris’ photograph had been chosen in a photographic lineup. Har ris’ interpretation of Detective Chisholm’s statements makes assumptions about the statements without taking Detective Chisholm’s words literally. Detective Chisholm testified that he told Harris that he had been “showing lineups to people and that people were picking people out of lineups.” Harris assumed that his picture had been selected in a photographic lineup, but Detective Chisholm did not tell Harris that his picture had been selected. When Harris asked who had identified him, Detective Chisholm told him that information would come out in court. Although Detective Chisholm’s response was evasive, it does not support Harris’ claim that Detective Chisholm lied.
Harris also fails to substantiate his claim that Detective Chisholm misrepresented physical evidence that did not exist. Detective Chisholm testified that his partner saw a stain on Harris’ coat. Although the detectives implied that the stain was blood, the coat was never sent to the lab for testing to confirm or refute that implication. The record does not establish whether there was a stain on Harris’ coat. Thus, there is no way for us to determine whether Detective Chisholm’s implication was false.
In State v. Wakefield, 267 Kan. 116, 127-28, 977 P.2d 941 (1999), the defendant claimed that his confession was involuntary because police lied to him during his interrogation. The Wakefield opinion does not specify what lies were told to the defendant, but the Wakefield court did not contest Wakefield’s claim that the police lied. Relying on Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), which held that a confession was voluntary even though the police falsely told the defendant that his cousin had confessed, we held that deceitfulness by law enforcement officers during a custodial interrogation does not invalidate the voluntariness of a confession as long as the defendant’s statements are the product of his or her free and independent will. See Wakefield, 267 Kan. at 128.
Harris fails to distinguish Wakefield, which we find controlling. Deceptive interrogation techniques alone do not establish coercion. Furthermore, there is no factual basis to support Harris’ claim that his confession was coerced by deceptive interrogation techniques.
Harris also claims that'.his .confession was coerced because Detective Chisholm did not advise Harris that four of the eyewitnesses had identified another man as the shooter. Detective Chisholm admitted that he did not tell Harris about the witnesses’ identification of Harvell. However, police interviewed Harvell and determined that he had an alibi for the time of the shooting.
Harris does not cite any authority for the proposition that interrogators must provide all exculpatory evidence during an interrogation. Although the State has a duty to reveal any exculpatory evidence to the defense before trial, Harris fails to cite and our research fails to reveal any case law supporting Harris’ theory that the same rule extends to police interrogations before the defendant has been charged with any crime. See State v. Aikens, 261 Kan. 346, 381-82, 932 P.2d 408 (1997) (holding that the State must advise the defendant of any exculpatory evidence before trial). We decline to extend the trial rules for exculpatory evidence to interrogations.
Harris further argues that the detectives tricked him into confessing to felony murder to avoid a charge of premeditated murder. Detective Chisholm admitted that they used themes and options as techniques for interrogating Harris. One of the themes was that the shooting was premeditated and that Harris had planned to kill the victim. Another theme eliminated the premeditation and suggested that Harris had been involved in a drug deal that went bad, requiring Harris to shoot the victim to defend himself. Detective Chisholm encouraged Harris to be truthful about what he was thinking at the time of the shooting to prevent a premeditated murder conviction with the potential for a 50-year minimum sentence.
We have refused to find a confession involuntary when the police encourage the accused to tell the truth. See State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1981); State v. Komstett, 62 Kan. 221, 227, 61 Pac. 805 (1900). The Komstett court stated that “mere advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent.” 62 Kan. at 227.
Here, Detective Chisholm encouraged Harris to tell the truth, but he did not promise any benefit or threaten any harm. Rather, Detective Chisholm properly stated the difference between premeditated murder and felony murder and informed Harris about potential sentencing differences between the two crimes. There is no indication that Harris’ independent will was overcome by Detective Chisholm’s forthright comments about possible charges. Harris knew at the beginning of the interrogation that it involved a murder. His failure to understand the elements of felony murder does not make his confession involuntary.
Harris has failed to substantiate his claim that his confession was involuntaiy because of deceptive interrogation techniques, i.e., Detective Chisholm’s failure to advise Harris that someone else was identified or Detective Chisholm’s statements regarding the nature of possible charges. Accordingly, he has failed to demonstrate that the officers were unfair in conducting the investigation, and this factor does not support the conclusion that Harris’ confession was involuntaiy.
The district court found that Harris was not under the influence of any drugs or alcohol and did not have any mental problems. While acknowledging that the interrogation was relatively long, the district court noted that there were a lot of breaks, including opportunities to use the rest room. Harris argued the detectives used isolation as a coercive tactic, but the district court found that the detectives were actively involved in checking out Harris’ statements and other information, which required the interrogation to be interrupted. These findings are supported by substantial competent evidence. The totality of the circumstances demonstrates that Harris’ confession regarding Zeigler’s murder resulted from his free and independent will rather than coercion from his interrogators. Accordingly, we conclude that Harris’ confession was voluntary and it was properly admitted at trial.
Next, Harris argues that the prosecutor improperly commented on his decision not to testify. He points to the following excerpt from the prosecutor’s closing argument:
“I do want to point out instruction number 12 to you that I talked about that a defendant in a criminal trial has a constitutional right in a criminal trial not to testify. You can’t draw any inference from that. I know the 12 of you know that. The reason I point that out is because your verdict must be founded entirely upon the evidence admitted and the law as given through these instructions, okay, on the evidence. So, my question is who says Mr. Harris was scared and he makes it up. [Defense counsel] does.
“A trial is the free flow of information that the attorneys give to the factfinder, which is you, and through the rules of evidence and the law we give you what we want. [Defense counsel] sits up here and tells you oh, this is what Harris was really thinking, that he was scared. You have no evidence before you on that. You have no evidence. My point is that you base your verdict on the evidence, not what’s not there, because then you go off on speculation: hey, why did the State dismiss that count two in the alternative charge, it was a felony murder where a robbery occurred. There’s a very good reason. Why did I give 30 minutes of that tape and not the whole thing. There’s a very good reason for that.
....
“My point is that you base your verdict on the evidence, not [defense counsel’s] convenient explanation that hey, my client was scared.”
Harris did not raise an objection to the prosecutor’s comments. However, his objection is not necessary if the comments prejudiced his Fourteenth Amendment right to due process. See State v. Jones, 273 Kan. 756, 782, 47 P.3d 783, cert. denied 537 U.S. 980 (2002).
When reviewing an allegation of prosecutorial misconduct, an appellate court applies a two-step analysis to determine whether a prosecutor’s comments have denied a defendant his or her constitutional right to a fair trial. First, the court must determine whether the remarks were outside the considerable latitude that the prosecutor is allowed in commenting on the evidence. Second, the court must decide whether the comments were so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby constituting plain error requiring reversal. State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004).
The State is prohibited from making direct, adverse comments on a defendant’s failure to testify on his or her own behalf. The State is also prohibited from maldng indirect comments if the language used was manifestly intended or of such a character that the jury would necessarily take it as a comment on the defendant’s failure to testify. However, if the jury has been properly instructed regarding the burden of proof, the State may argue inferences based upon the lack of evidence as long as those remarks do not draw an adverse influence on the defendant’s failure to testify. State v. McKinney, 272 Kan. 331, 346-47, 33 P.3d 234 (2001).
In McKinney, the prosecutor told the jury that the defendant had failed to present any evidence to contradict die State’s key witness, the defendant’s uncle. The McKinney court concluded that the prosecutor’s comments were not improper because the defendant failed to produce any evidence in general that his uncle had a motive to lie. 272 Kan. at 347. This conclusion relied on two premises. First, the State’s assertion that the evidence is uncontradicted is limited only when it is highly likely rebuttal evidence would have to come directly from the defendant. See State v. Milo, 249 Kan. 15, 21-22, 815 P.2d 519 (1991). Second, there is no prejudicial error when the remarks are provoked and made in response to arguments or statements by defense counsel. See McKinney, 272 Kan. at 347.
In this case, the prosecutor’s comments were in response to defense counsel’s statement that Harris’ confession was “full of lies because he’s making it up because he’s scared he’s going to get charged with first-degree murder . . . .” The State rested solely on Harris’ confession, so the credibility of the confession was a significant factor in determining Harris’ guilt. The prosecutor’s rebuttal comments appear to be aimed at reminding the jury that comments from Harris’ attorney were not facts in evidence and that there was no evidence that Harris was scared to contradict the credibility of his confession. However, the only person who could testify regarding how Harris felt when he confessed was Harris himself.
This case highlights a conflict between the two premises relied on in McKinney — that there is no prejudicial error when the comments are provoked by the defendant and that the State may not make comments on the lack of contradictory evidence if the rebuttal evidence would have to come from the defendant’s own testimony. See 272 Kan. at 347. In resolving this conflict, it is significant to note that the prosecutor first reminded the jury that Harris had a constitutional right not to testify and that it could not make any inferences based on his decision not to testify. We believe that this prefatory remark mitigates the need for Harris’ testimony to establish how he felt during the interrogation and eliminates any adverse influence on Harris’ failure to testify. When considered in light of the prefatory statement and the court’s instructions to the jury, the prosecutor’s response to Harris’ attorney’s claim that Harris was scared does not rise to the level of being so gross and flagrant as to prejudice the juiy against the defendant and deny his constitutional right to a fair trial.
Next, Harris claims that the trial court improperly admitted a portion of his codefendant’s incriminating statements against him in violation of his constitutional right to cross-examine the witnesses against him. A defendant must make a timely and specific objection to the admission of evidence at trial to preserve the issue for appeal. K.S.A. 60-404; State v. Flynn, 274 Kan. 473, 496, 55 P.3d 324 (2002).
Harris argues that he objected to the testimony, but the record does not support his argument. The objection that Harris refers to is regarding statements made by Harvell. Detective Chisholm was testifying about his interview with Harvell when Harris’ attorney made the following objection:
“Object at that point. We’re approaching on hearsay basically to determine what had been told to Mr. Harris. I certainly accept the fact that the investigation of Mr. Harvell progressed and he was found not to be a suspect, but the details I believe are going to get into too much of a hearsay problem.”
This objection does not address any statements made by Jackson, Harris’ codefendant. Consequently, Harris has failed to preserve this issue for appeal.
For his next claim of error, Harris argues that the trial court should have granted his motion for a new trial based on newly discovered evidence. After trial, Harris’ wife received a videotape from Donaldson in which Donaldson stated he was present when Zeigler was shot and that Harris was not there. Donaldson was wanted as one of the participants in Zeigler’s murder but had managed to evade law enforcement officers until after Harris’ trial. After making the videotape for Harris, Donaldson was arrested and gave conflicting statements to Wichita police, recanting his state- merits on Harris’ videotape and claiming that Harris sent him a script from prison.
In addition to the Donaldson videotape, Harris proffered evidence from Jackson’s cellmate who would testify that Jackson had admitted Harris was not involved in Zeigler’s murder but stated that she would lie to protect herself from a 20-year sentence. Harris met Jackson’s cellmate on or about the second day of his trial. The trial court denied Harris’ motion for a new trial, finding that Jackson’s statements to her former cellmate were inadmissible hearsay and Donaldson’s videotaped statements lacked sufficient credibility.
An appellate court reviews the denial of a motion for a new trial based on newly discovered evidence using an abuse of discretion standard. Judicial discretion is abused when no reasonable person would adopt the view taken by the trial court. See State v. Moncla, 273 Kan. 856, 861, 46 P.3d 1162 (2002). We apply a two-part test to determine whether a new trial was warranted. First, the defendant must establish that the newly proffered evidence could not have been produced at trial with reasonable diligence. Second, there must be a reasonable probability that the newly discovered evidence would produce a different result upon retrial. McKinney, 272 Kan. at 337.
Although the evidence from Jackson’s former cellmate was not reasonably discoverable until after Harris’ trial, the evidence was inadmissible hearsay because it was not a confession, a statement against Jackson’s interest, or a statement by a person present and available for cross-examination. See K.S.A. 2003 Supp. 60-460(a), (f), and (j). Thus, it would not have produced a different result upon retrial. Likewise, the Donaldson videotape would not have produced a different result upon retrial. Donaldson recanted the statements in the videotape when he was interrogated by the police, so he had little, if any, credibility. The trial court did not abuse its discretion when it denied Harris’ motion for a new trial based on newly discovered evidence.
Finally, Harris argues that he should be given a new trial because cumulative trial errors denied his right to a fair trial. This court looks at the totality of the circumstances to determine whether cumulative errors have substantially prejudiced a defendant and denied his or her right to a fair trial. However, if the evidence is overwhelmingly against the defendant, no prejudicial error may be found on the cumulative effect rule. State v. Plaskett, 271 Kan. 995, 1022, 27 P.3d 890 (2001).
Harris relies on the alleged trial errors he has raised in this appeal to establish cumulative errors. However, Harris has failed to demonstrate any trial errors. Accordingly, there is no reason to reverse Harris’ conviction for felony murder based on cumulative trial errors.
Affirmed. | [
-15,
-24,
-24,
-114,
59,
-32,
-86,
-8,
114,
-30,
-16,
-13,
41,
-51,
25,
105,
-71,
125,
84,
105,
-76,
-77,
7,
33,
-14,
-13,
50,
-43,
-78,
-50,
124,
-34,
77,
96,
-114,
73,
102,
74,
-83,
82,
-120,
-92,
-63,
-30,
90,
82,
36,
58,
110,
14,
53,
-114,
-93,
42,
16,
-17,
105,
41,
90,
45,
-48,
112,
11,
-67,
-23,
16,
-77,
50,
-98,
35,
-40,
28,
-39,
49,
0,
-8,
115,
-106,
-128,
60,
109,
-119,
44,
38,
2,
5,
-51,
-18,
-87,
-119,
79,
126,
-75,
-89,
29,
105,
64,
68,
-98,
-35,
105,
116,
46,
-12,
-9,
85,
89,
100,
13,
-34,
-108,
-111,
107,
56,
-102,
-8,
-29,
7,
96,
117,
-49,
106,
92,
68,
123,
83,
-120,
-47
]
|
Per Curiam:
The question in this case is the same as that decided in Phillips v. Oil Co., 76 Kan. 783, 92 Pac. 1119, and on the authority of that case the judgment is affirmed. | [
-16,
106,
-3,
29,
8,
-32,
58,
-110,
63,
-67,
-9,
83,
45,
-101,
-100,
117,
-121,
121,
113,
122,
-42,
-9,
-45,
-48,
84,
-13,
-71,
-59,
57,
94,
-2,
94,
76,
49,
-118,
-43,
98,
-64,
77,
28,
-58,
4,
24,
-23,
-39,
-46,
-76,
42,
112,
-117,
-15,
-106,
-31,
42,
26,
-57,
9,
60,
-7,
-17,
17,
120,
-120,
-123,
109,
38,
-109,
36,
-112,
-60,
-56,
14,
-36,
-71,
1,
-24,
114,
-92,
70,
-12,
43,
121,
-84,
98,
106,
2,
1,
-19,
-8,
-104,
39,
-34,
-115,
-90,
58,
24,
-21,
3,
-97,
28,
100,
32,
15,
-2,
-10,
-43,
95,
-88,
5,
-113,
-74,
-95,
7,
127,
56,
82,
-22,
-61,
-76,
69,
-64,
-70,
94,
71,
23,
-109,
14,
-70
]
|
The opinion of the court was delivered by
Benson, J.:
The only question in this case is whether the conveyance from Ross Burget to Henry E. Sleeth and wife was made in good faith or whether it was fraudulent as to creditors. The evidence bearing upon this issue was written, consisting of depositions and documents; only one witness testified orally, and his testimony related solely to the value of the land. The case is presented here in about the same attitude as in the district court. While the findings of the trial court in such a. situation are entitled to careful consideration, and in doubtful cases will turn the scale in favor of affirmance, still, where all the material testimony is in writing and the case is presented here in practically the same aspect as in the trial court, such findings are not absolutely controlling, and will not be sustained if clearly overborne by the weight of the evidence. (Robinson v. Melvin, 14 Kan. 484; Durham v. C. C. & M. Co., 22 Kan. 232; Bank v. McIntosh, 72 Kan. 603, 84 Pac. 535.)
The depositions consisted of the testimony of defendant Henry E. Sleeth, Ross Burget, his grantor, and, as Sleeth testified, his agent, and Henderson Bur-get, the father of Ross Burget. The testimony of the last-named witness was, however, quite unimportant upon the issue tried. Thus it appears that" the. case was practically submitted on the depositions of Sleeth and Ross Burget.
The admissions of a party are, as stated by Mr. Justice Brewer in Durham v. C. C. & M. Co., supra, good against him.
In addition to the facts above stated, the evidence disclosed that Ross Burget rented this land to Mr. Jost, who occupied it under such contract from March 1, 1902, until the spring of 1905, and all rents were paid to Burget during that time, after allowing credits for expenses and improvements. The Sleeths had no communications or dealings with the tenant whatever. Burget visited this land in February, 1903, and, in March, 1903, made the deed to the Sleeths in Indiana, where they all resided. Hem;y E. Sleeth was a farm hand, working for Henderson Burget part of the time. He had no property except an unimproved town lot. He never saw the land, and made no inquiries about it except of Ross Burget and Henderson Burget. He tes tified that he verbally appointed Ross Burget his agent to collect the rents, and that the rents were turned over to Henderson Burget to apply on the mortgage upon the land. He was not able to give a statement of rents so received and applied on the mortgage; The deed to Sleefh is dated March 28, 1903, and the depositions shQW that it was delivered April 15, 1903. The consideration expressed is $9600. Sleeth testified that he paid $2600 in cash sometime in 1903, and assumed a mortgage of $7000 to Henderson Burget, and that this money was from the sayings of wages and from gifts, but that the largest gift he ever received was $50. He gave vague and indefinite testimony about doing business with banks, and when asked from which bank he had drawn the money said: “It might have been drawn from either, but not all of it from either bank or any bank.” In a later deposition he was asked: “Where did you have this money on deposit or in safety prior to the time you made payment to Mr. Burget?” His answer was: “I didn’t have it on deposit.” It does not appear that he sold the lot referred to to raise the money, and he gave no other explanation of the source from which he received it. He heard of the litigation affecting this land in the summer of 1903, but took no action in the matter.
Ross Burget testified that he collected the rents and applied them on the mortgage down to the spring of 1905, and that the mortgage debt was reduced from $7000 to $4000 between April 15, 1903, and the spring of 1905, but that he made no payment thereon except the • application of the rents, from which the cost of fencing and other expenses were deducted. But neither Sleeth nor Burget presented any account or statement of such rents or expenses, although repeatedly called for in their examination as witnesses.
The land appears to have remained in the control and dominion of Burget down to the spring of 1905, when Sleeth himself made a lease upon it. During the two years between the date of the deed and that time Burget had attended to the rents, improvements and expenses” and applied the proceeds upon the mortgage exactly as he might have done had the' deed not been made, except, he says, he exhibited the statements, accounts of rents, etc., to Sleeth.
The evidence discloses a transaction of such a nature and with such circumstances as to challenge careful scrutiny to ascertain whether the conveyance was in good faith. It seems that Mr. Sleeth never visited this farm, for which he claims to have paid $2600 cash and agreed to pay $7000 more; that he made no inquiries of the tenant or of others in the locality; that he could not or would not disclose how he obtained the money; that his statements about having part of it in a bank were contradicted by his later deposition; that he took no steps to protect his interest when informed that the property was in litigation; that his grantor was financially embarrassed, and soon became bankrupt; that he could not or would not give a statement of rents received and expenses paid; that the entire management down to the spring of 1905 was left with the grantor, even to the making of and allowance for improvements ; that without showing any money received, except the rents for two years, less expenses and cost of improvements, the amount of which he refused to give, he had still reduced the mortgage by $3000, but would give no account of. payments thereon; that the deed was dated in March, 1903, and yet no claim was made of any payment until April 15, 1903; and that he refused to account for the delay in recording it. These are among the circumstances that demanded attention and called for explanation.
A still more serious matter, however, is presented. Both Henry E. Sleeth and Eoss Burget were twice examined touching these matters, from which the foregoing facts appear. In the course of the examinations of Mr. Sleeth, in December, 1905, as a witness for the plaintiff, the following appears in the record:
“Ques. Who occupied this farm at the time you received it? Ans. Mr. Jost.
“Q. State the nature of your contract with .Mr. Jost. [Question objected to by defendant as incompetent and on the advice of counsel witness refuses to answer.]
“Q. What accounting, if any, has Mr. Jost made to you ? If any, so state. A. Made none, except through agents.
“Q. What agent or agents, other than Mr. Ross Bur-get, have you employed to look after the farm? [Defendant objects to question for the reason it is not proper examination in chief' and is not relevant or material and witness is therefore advised not to answer.] ”
In his subsequent examination, in August, 1906, appears the following:
“Ques. If you had any conversation with Mr. Ross Burget with reference to the purchase of this land prior to March 28,1903, you may so state and what that conversation was. [Witness refuses to- answer, on advice of his counsel.] ”
“Q: If you disposed of any property for the purpose of raising the twenty-six hundred dollars purchase-money you may so state, what property it was and when disposed of. [Witness refuses to answer, on advice of counsel.] ”
“Q. Who presented you the note of eight thousand dollars which the mortgage secured and what was the total amount of credit, set out on the note, with reference to the final accounting? [Witness refuses to answer, on advice of counsel. The attorney for the plaintiff insists and demands that the foregoing question be answered because of its materiality.] ”
“Q. Why do you know that all the rents and profits .from this land has been applied on said note? [Witness refuses to answer, on advice of counsel.]
“Q. If Ross Burget ever tendered to you a receipt or memorandum in his accounting to you as your agent you may so state, and what the receipt or memorandum was. [Witness refuses to answer, on advice of counsel.]
“Q. What compensation, if any, did you make to Mr. Ross Burget for his services as your agent? [Witness refuses to answer, on advice of counsel.] ”
“Q. Upon what terms and conditions was this land renting for at the time you received the deed ? [Defend ant objects to the question. Witness refuses to answer, on advice of his counsel.] ”
“Q. State how much- credit has been given you on this note at the present time. [Witness refuses to answer.] ”
“Q. What terms and conditions did you authorize Mr. Ross Burget to contract with Mr. Jost for the rental of this property? [Defendant objects to the question and witness refuses to answer, on advice of counsel.] ”
“Q. Explain why you did not forward the deed to Greenwood county, Kansas, for record immediately upon its receipt from Ross Burget. [Witness refuses to answer, on advice of counsel.] ”
“Q. If Jessie Sleeth, your wife, paid no part of this purchase-money and had no other interest in the purchase of the land other than as your wife, explain why the deed of conveyance was made to you and Jessie Sleeth jointly. [Defendant objects to the question, and witness refuses to answer, on advice of counsel.]”
In taking the deposition of Ross Burget the plaintiff encountered like evasions and refusals in several instances.
In the course of these examinations Mr. Sleeth testified generally that he had acted in good faith and without fraud, and the pertinency of the foregoing questions is apparent. He was the principal party defendant, and a non-resident of Kansas. The civil code provides:
“Any party to a civil action or proceeding may compel any adverse party or person for whose benefit such action or proceeding is instituted, prosecuted or defended, at the trial or by deposition to testify as a witness in the same manner and subject to the same rules, as other witnesses.” (Civ. Code, § 321; Gen. Stat. 1901, § 4769.)'
The plaintiff therefore had a clear right to the evidence, not to such only as the witness felt inclined to give but to all that was within his knowledge pertinent to the issue. The witness had no right to withhold such testimony “on the advice of counsel” or otherwise. This is now conceded, and counsel representing him on the trial and in this court (but not in the taking of the depositions) says, in his brief, regarding these strictures of Sleeth’s counsel and concerning the refusal of the witness to answer:
“No exception can be taken to the strictures of counsel in this regard. But he should remember that when he scores Sleeth’s counsel he exonerates Sleeth. These depositions were taken about the time the news of the taking of the depositions of H. H. Rogers in New York in the Standard Oil investigation reached Indiana. The matter of objecting to testimony “on the advice of counsel” was new, and Sleeth’s counsel could not resist the temptation to try his hand at it. The temptation was very great to a young lawyer.”
This may explain the misconduct, but does not obviate the consequences. The fact remains that defendant Sleeth in a proceeding in the action wrongfully deprived the plaintiff of a substantial right. We are not advised what pi-ocedure is provided in the jurisdiction where the depositions were taken to compel a refractory witness to answer. We may suppose that it is ample, but the question remains, What effect should such conduct have in the consideration of a case, where the successful party thus living beyond the jurisdiction of the court has refused to testify in a material matter in behalf of the opposing party? It must be conceded that the benefit of all reasonable presumptions arising from his refusal should be given to the other party. The conduct of a party in omitting to produce evidence peculiarly within his knowledge frequently affords occasion for presumptions against him. (Kirby v. Tallmadge, 160 U. S. 379, 16 Sup. Ct. 349, 14 L. Ed. 463.) This rule has been often applied where a party withholds evidence within his exclusive possession and the circumstances are such as to impel an honest man to produce the testimony. In this case the witness not only failed but refused to testify concerning material matters that must have been within his knowledge. In a case involving such contumacy of a party as a witness it was said:
“It seems plain to us that there is a stronger presumption to be raised against a party in whose possession the facts must be, if they exist, by which suspicion would be removed and all question as to the propriety of his conduct be set at rest, who stolidly refuses, without the suggestion of a reason, to aid the court in arriving at the truth.” (Aragon Coffee Co. v. Rogers, 105 Va. 51, 59, 52 S. E. 843.)
In that case the witness testified that he had given full value for the note in suit, but when called upon to explain the transaction he met the inquiries with evasion, equivocation, and refusal to answer.
“When a witness who evades cross-examination is the chief party in interest, or one who is plainly seeking to screen him, his testimony in his own favor ought to be disregarded when it needs explanation.
“It is to be presumed that when a witness refuses to explain what he can explain the explanation would be to his prejudice.” (Heath v. Waters, 40 Mich. 457, syllabus.)
“It has been more than once said that the testimony in a case often consists in what is not proved as well as in what is proved. Where withholding testimony raises a violent présumption that a fact not clearly proved or disproved exists, it is not error to allude to the fact of withholding as a circumstance strengthening the proof. That was all that was done here.” (Frick v. Barbour, 64 Pa. St. 120, 121.)
“The consciousness indicated by conduct may be, not an indefinite one affecting the weakness of the cause at large, but a specific one concerning the defects of a particular element in the cause. The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted. The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause. Ever since the case of the chimney-sweeper’s jewel this has been a recognized principle.” (Wig. Ev. § 285.)
The conduct of a party as a witness, and his refusal to give frank explanations of the transaction under investigation, were commented on by Mr. Justice Burch in Fincke v. Bundrick, 72 Kan. 182, 83 Pac. 403, 4 L. R. A., n. s., 820, where the reasonable inferences from evasions were drawn and applied.
A careful reading of the testimony of defendant Henry E. Sleeth, contained in the two depositions, convinces us that the principles embraced in the foregoing quotations are applicable, and the natural inference is that the details and explanations called for and withheld would have shown the falsity of his claim that the transaction was in good faith, in view also of their inherent improbability, as evinced by his entire conduct.
Little need be said about the like refusals of Ross Burget. He was Sleeth’s grantor, and both testified that he was Sleeth’s agent. His refusals were prompted by the same advice, and presumably were rooted in the same reason, and the same presumption must apply.
This was an action where the greatest liberality in the presentation of the evidence consistent with orderly practice ought to have been allowed. The transaction was in a distant state, and between persons whose interests were hostile to the plaintiff. Commenting upon such a situation, the supreme, court of the United States has said:
“Parties contemplating a fraud frequently pursue such devious courses to conceal their designs, and resort to such subtle practices to mislead their unsecured creditors, that the fraud becomes impossible to detect, unless the door be swung wide open for the admission of all testimony having any possible bearing upon the question. Facts which to the court might seem of no pertinence and be rejected as having no legal tendency to show knowledge of the fraud might be considered by the jury as significant and indicative of a guilty participation. Even negative evidence may sometimes have a positive value.” (Sonnentheil v. Moerlein Brewing Co., 172 U. S. 401, 410, 19 Sup. Ct. 288, 43 L. Ed. 492.)
“It is true, as contended, that honesty and fair dealing are presumed, and that one charging fraud must prove the same; but direct proof of a dishonest transfer of property can seldom be procured. ‘A fraudulent purpose is known only to the parties to the transaction, and they- do not hasten to tell it. As a rule, therefore, fraud is disclosed only by the condition of the parties, the details of the transaction, and the surrounding circumstances.’ ” (Cox v. Cox, 39 Kan. 121, 123, 17 Pac. 847.)
The conditions of the parties and the details and circumstances of this transaction were all proper subjects •of evidence, and defendant Sleeth, having wrongfully refused to give such evidence, ought not to profit thereby. The presumption against him arising upon such refusal must be added to all the facts and circumstances proved, and upon the whole case thus presented we are constrained to hold that the finding in favor of the defendants cannot be sustained.
Wherefore the judgment is reversed, and a new trial ordered. | [
-14,
106,
-51,
-97,
-54,
-32,
-86,
-6,
105,
-95,
53,
115,
73,
-42,
21,
105,
-10,
29,
112,
104,
86,
-77,
22,
-29,
82,
-13,
-5,
-35,
-71,
73,
-12,
86,
13,
32,
-118,
-107,
-26,
-64,
65,
30,
-114,
5,
41,
76,
-37,
80,
52,
43,
22,
73,
81,
-113,
-13,
43,
29,
-61,
41,
40,
91,
41,
-48,
-15,
-66,
-121,
79,
2,
2,
38,
-108,
-123,
72,
42,
-112,
117,
-127,
-8,
115,
-90,
-106,
-12,
9,
25,
13,
54,
98,
49,
-76,
-18,
-18,
-104,
46,
-1,
-115,
-89,
-80,
72,
-93,
73,
-68,
-99,
116,
80,
38,
-2,
-18,
21,
9,
124,
7,
-113,
-42,
-109,
7,
60,
-110,
3,
-29,
-123,
52,
112,
-49,
34,
92,
103,
120,
-101,
-114,
-67
]
|
Per Curiam:
Williams brought this suit to foreclose a mortgage on Clark county land which had been executed in 1887 and assigned to him. In 1904 the records showed Nancy Brewer, of Springwater, N. Y., to be the assignee of the mortgage, and Mayse, who was ^trying to buy the equity of the owner of the land, wrote to her and offered her $50 for an assignment. She replied that she'was unable to find the mortgage among her papers but would write him if she succeeded in finding it. He then wrote and offered her $25 for a release, but, asked her to make an affidavit which he enclosed stating that she owned the mortgage and had power to release it, but that it was lost and she was unable to find it. She refused to make the affidavit, but he accepted and paid for the release. As a matter of fact, Mrs. Brewer had assigned the mortgage with others in 1901, but was not aware of it. The assignment to Williams was not recorded until after Mayse secured the release of the mortgage and the quitclaim from the owner of the land. The court allowed Mayse a credit of the $25 paid, and found generally for the plaintiff, foreclosing the mortgage. It is contended that this was error.
Under chapter 160 of the Laws of 1897, requiring all such assignments to be recorded within ninety days after the .transfer, and providing in express terms that a release executed to the last recorded assignee should discharge the mortgage, the release relied upon here would have been a complete defense to the action. But in 1899 that law was repealed and a new act, chapter 168 of the Laws of 1899 (Gen. Stat. 1901, §§ 4234-4239), enacted in its place. In the latter the provision that a release by the last assignee of record shall be effectual fully to discharge the mortgage is omitted.
The title to the act of 1897 is as follows: “An act providing for the recording of assignments of real-estate mortgages, and for the release of such mortgages by assignees thereof, and providing penalties for failing to record such assignments”; and that of 1899 reads: “An act in relation to assignments of real-estate mortgages, and to repeal chapter 160 of the Session Laws of 1897.” Whatever the purpose of the legislature may have been, whether, as suggested, it believed the former provision hindered and impaired the usefulness of mortgage notes as security, it is clear that the provision was eliminated from the act of 1899, and nothing of the kind left in its place.
Mayse was not a purchaser of the land in this transaction ; he was attempting to secure a release and satisfaction of a mortgage from a person whom the evidence shows he had some reason to believe might not be the owner, with the expectation of afterward , acquiring the title to the land free from the mortgage.
The judgment, we think, gave him all that he was entitled to under the circumstances, and it is affirmed. | [
-13,
109,
88,
126,
-22,
-96,
42,
-104,
-22,
-91,
-93,
87,
-19,
64,
20,
37,
-27,
97,
113,
88,
-121,
-77,
54,
1,
-46,
-77,
-63,
85,
-73,
93,
-12,
-105,
76,
48,
-56,
85,
68,
-128,
-59,
88,
14,
-121,
9,
-28,
-39,
64,
52,
63,
86,
13,
17,
126,
-95,
47,
21,
110,
109,
46,
-53,
-71,
-16,
-88,
-97,
-99,
121,
3,
-79,
103,
-48,
1,
-54,
-88,
-108,
53,
1,
-24,
123,
-90,
-122,
118,
71,
11,
40,
98,
102,
18,
101,
-17,
-48,
-84,
6,
-10,
-19,
-122,
-47,
72,
11,
40,
63,
-35,
116,
16,
38,
-10,
-18,
-59,
29,
108,
4,
-49,
-42,
-77,
15,
-2,
-120,
3,
-25,
35,
32,
113,
-57,
-30,
93,
103,
113,
-101,
-114,
-3
]
|
The opinion of the court was delivered by
Johnston, C. J.:
On January 10, 1906, H. C. Smeltzer was awarded a judgment against George T. Sparks quieting the former’s title to a tract of land in Lane county. The judgment was based alone on a publication notice. On April 24, 1906, Sparks began this action to vacate that judgment, and his petition contained fourteen distinct paragraphs purporting to state reasons for setting the judgment aside. The sufficiency of the petition was challenged by a demurrer alleging that the facts stated did not constitute a cause of action against Smeltzer. The court overruled the demurrer, and Smeltzer then filed what he termed a “special demurrer,” separately attacking eight paragraphs of the petition on the grounds that they “do not state, or tend to state, nor partially state, any cause of action against the said defendant.” A motion was made by Sparks to strike the so-called special demurrer from the files, but this was denied. Later the court sus tained the demurrer interposed separately to the several paragraphs of the petition, and this ruling has been brought here for review. Is the ruling reviewable at this time?
While the petition is divided into a number of paragraphs, it is not contended that each is a separate cause of action nor that all together constitute more than a single cause of action. On the demurrer addressed to the entire count it was held that a cause of action was stated, and, as we have seen, the special, or second, demurrer was directed at parts of this cause of action. The demurrer, whatever it may be called, cannot be used to rid a single count of irrelevant, redundant or improper matter. Under our code it is hardly accurate to designate demurrers as “general” or “special,” as we have no other than the statutory demurrer, and it has no other office than to challenge the sufficiency of pleadings upon one or more of the six specific grounds prescribed by the code. (Mayberry and others v. Kelly, 1 Kan. 116.) Some of the parts of the petition attacked by the misnamed demurrer state inferences of fact and conclusions of law and some are only argumentative in character, and the evident purpose of the challenge was to eliminate from the petition these impertinent and irrelevant matters. A somewhat similar pleading has been treated as a motion to strike out (Seaton v. Chamberlain, 32 Kan. 239, 4 Pac. 89), and this one may have been so regarded by the trial court; but, if it be .so treated, the decision of the motion is no more than an intermediate order, which cannot be reviewed prior to the final judgment or decree. Nor is the ruling refusing to strike out the special demurrer open to review at this time.’
The proceeding is therefore dismissed. | [
-78,
-18,
-40,
28,
-118,
32,
42,
-79,
65,
-127,
-73,
119,
105,
-46,
12,
49,
115,
41,
81,
122,
-12,
-73,
31,
-30,
22,
-45,
-7,
-43,
49,
93,
-12,
119,
12,
48,
10,
53,
-58,
-126,
-123,
86,
78,
9,
41,
75,
-7,
-64,
48,
123,
114,
11,
113,
-18,
-13,
46,
28,
-53,
-113,
60,
-6,
-68,
-63,
-72,
-70,
13,
93,
20,
49,
54,
-100,
7,
72,
-86,
-104,
61,
2,
-20,
51,
54,
-122,
-11,
107,
-103,
44,
-10,
102,
33,
-75,
-17,
-84,
-104,
47,
-73,
-99,
-90,
-108,
8,
11,
41,
-66,
-99,
125,
21,
-121,
126,
-25,
5,
28,
108,
7,
-50,
-42,
-79,
-81,
116,
-114,
81,
-9,
-93,
32,
112,
-52,
-14,
92,
71,
27,
-101,
-50,
-4
]
|
The opinion of the court was delivered fey
Burch, J.:
The Showalter Mortgage Company, being the owner of a note secured by a real-estate mortgage, assigned both instruments to Charles E. Gibson. By written contract indorsed on the note it guaranteed payment of the interest when due and payment of the principal twelve months after maturity. While the guaranty was in force the mortgage company purchased the land described in the mortgage at a tax sale and received a tax-sale certificate therefor. Afterward an assignee of the certificate received a tax deed of the land, and by quitclaim conveyances the title thus acquired became vested in George B. Cones.
Gibson brought a suit to foreclose the mortgage. Cones answered setting up title under the tax deed, and prayed for a lien for taxes in case it should be held to be void. Gibson replied pointing out defects in the tax deed rendering it void on its face, and defended against the claimed lien for taxes by pleading the guaranty of the mortgage company. - Cones demurred to the latter portion of the reply, on the ground that the statute of limitations had run against the enforcement of the guaranty. The demurrer was overruled, judgment was rendered for the plaintiff, the tax deed was held to be void on its face, and Cones was denied any lien whatever. Of the ruling denying him a lien Cones complains.
Gibson claims that because Cones is the holder of an independent title to the land he is forbidden to plead the statute of limitations against recovery upon the mortgage, citing Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862, and similar cases. The rule announced in those decisions has no application here. Cones does not invoke the statute on behalf of the maker of the note and mortgage, with whom he is not in privity, nor even against the note, and mortgage. He is defending against a guaranty pleaded by way of assault on his tax title. He is an assignee of the guarantor, the Showalter Mortgage Company, is its successor in relationship to the land, and holds the same rights it possessed. He is therefore in privity with it (Challis v. City of Atchison, 45 Kan. 22, 25 Pac. 228) and can make the defense the same as it might have done. (25 Cyc. 1006.)
For all purposes of the decision the case is the same as if the Showalter Mortgage. Company, the guarantor of the plaintiff’s mortgage, had taken out the tax deed while the guaranty was in full force and were now claiming the land under the tax deed after liability on the guaranty had been extinguished by the statute of limitations.
Gibson argues that the purchase of the land by the mortgage company at tax sale did nothing more than effect a payment of the taxes; that the tax-sale certificate had no validity as such, and could be of no more consequence than a receipt for taxes paid; and hence that the tax deed conveyed no interest whatever in the land and carried with it no lien whatever upon the land. This argument is supported by the decisions in the cases of Howard Invest. Co. v. Benton Land Co., 5 Kan. App. 716, 46 Pac. 989, and Concordia Loan & Trust Co. v. Parrotte, 62 Neb. 629, 87 N. W. 348. In the case of Howard Invest. Co. v. Benton Land Co. the guaranty was identical in terms with the one now in controversy. The material part of the opinion reads as follows:
“The mortgage in question contained a clause making it the duty of the mortgagor *to pay the taxes upon the premises, but even if such a clause had not been inserted it would have been his duty so to do. When the Showalter Mortgage Company guaranteed the payment of the obligation of the mortgagor, it was equivalent to guaranteeing that his whole contract would be carried out; and by so doing it was placed in such a position of trust with relation to the defendant in error that the law will not permit it to obtain title by the failure upon the part of the mortgagor to pay the taxes upon the land mortgaged and the purchase of the land by it, at tax sale, on account of such default. The default of the mortgagor became the default of the company, and the purchase of the premises at tax sale was simply the payment of taxes by one whose duty it was to pay the same.” (Page 717.)
The attempt here made to derive the disability of the guarantor to take a tax title from the duty to pay taxes manifestly distorts the terms of the guaranty. The guarantor entered into no contract with any one to pay taxes on the mortgaged land. He limited the indemnity he should provide to payment of interest and principal, and nothing else can be added to his legal obligation. His undertaking was not commensurate with that of the mortgagor, who may have agreed to keep buildings insured, to protect the premises from waste, and to perform other collateral engagements, but it was a separate and independent covenant of his own, the extent of which should be measured by its own terms. He rested under no legal duty to the state, to the mortgagor or to the mortgagee to pay taxes on the mortgaged premises. He would have been guilty of no fault, legal or moral, if the mortgagor’s title and the mortgagee’s security had both been swept away by a tax deed to a stranger. The suggestion of a conscientious quality in the relation between the guarantor and the owner of the mortgage which would prohibit the guarantor from destroying the security of the mortgage has some force, but the default of the mortgagor to pay taxes was not the default of the guarantor, and no inhibition upon the guarantor’s ta-' king out a valid tax deed of the land could be erected upon that foundation.
In the case of Concordia Loan & Trust Co. v. Parrotte, 62 Neb. 629, 87 N. W. 348, it was held that a person who guarantees the payment of a note and mortgage cannot, as against the owner of the note and mortgage, obtain a lien upon the mortgaged real estate by purchase at tax sale, mortgagor and guarantor being placed upon the same footing in that respect. While the decision proceeds upon two grounds, one of them involves the broad doctrine stated. The opinion (p. 632) quotes from Cooley on Taxation, and then proceeds, as appears by the following extracts:
“ 'Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers on grounds which are apparent when their relation to the tax and to the property is shown. The title to be given on a tax sale is a title based on the default of a person who owes to the public the duty to pay the tax, and the sale is made by way of enforcing that duty. But one person may owe the duty to the public, and another may owe it to the owner of the land by reason of contract or other relations. Such a cáse may exist where the land is occupied by a tenant who, by his lease, has obligated himself to pay taxes. Where this is the relation of the parties to the land, it would cause a shock to the moral sense if the law were to permit this tenant to neglect his duty and then take advantage thereof to cut off his lessor’s title by buying in the land at a tax sale. So the mortgagor, remaining in possession of the land, owes to the mortgagee a duty to keep down the taxes; and the law would justly be chargeable with connivance at fraud and dishonesty if a mortgagor might be suffered to permit the taxes to become delinquent and then discharge them by a purchase which would at the same time extinguish his mortgage. There is a general principle applicable to such cases which may be stated thus: That a purchase made by one whose duty it was to pay the taxes shall operate as payment only; he shall acquire no rights as against a third party by a neglect of the duty which he owed to such party. This principle is universal, and is so entirely reasonable and just as scarcely to need the support of authority. Show the existence of the duty, and the disqualification is made out in every instance.’ [2 Cooley, Tax., 3d ed., 963.] The duty to pay the debt is an obligation upon the guarantor equally with the maker, in the event the latter does not páy. It seems, therefore, that the guarantor ought, equitably, to be under the same disability with the maker in the matter of inj uring the means of payment. It would be as great a connivance at fraud and dishonesty in law to suffer the guarantor to pay the taxes on the property covered by the mortgage and give him a priority over the security as it would be to allow the maker to do those things. It is fully as equitable to prevent this wrong to the secured when done by the guarantor as when done by the maker, and that can be accomplished by placing both under the same disability.”
It is somewhat difficult to understand what bearing the quotation has upon the discussion and conclusion following it. The‘text cited bases the disability to take a tax title upon the relation of the tax purchaser to the land or to the tax — that is, upon the duty to pay taxes, the argument being: show a duty to discharge taxes and a disqualification to build up a tax title is established. It must be clear that a contract guaranteeing the payment of principal and interest only cannot be stretched to make the payment of any other sums a legal duty. The guarantor is under no obligation to augment the burden of his contract by the expenditure of money to preserve the mortgage lien from annihilation by a tax deed. He need take no affirmative step to forestall such a result, and if he omit or decline to pay taxes on the land he is guilty of no fault, moral or legal. He can stand upon the terms of his guaranty-ship. Aside from his contract, the guarantor is a stranger both to the land and to the tax. He owes the state no duty to pay the mortgagor’s taxes, and most certainly he owes the mortgagor no such duty. If, therefore, a tax sale of the land should occur it would take place through no fault of his, and if he should take a title based upon such sale he would be building no rights upon a neglect or breach of duty to pay taxes.
There being no legal duty resting upon the guarantor to keep the mortgagee’s security intact by paying taxes on the land, the only valid ground of the decisions referred to is that the contract of guaranty creates a relation between the guarantor and the holder of the debt guaranteed which renders it inequitable for the guarantor to acquire a tax title to the land pledged as security for the debt. There may be some difficulty in demonstrating the soundness of this view. Clearly the offense does not lie in suffering the tax sale to occur, because the guarantor owes nobody the duty to prevent it. If upon a sale the land should, without collusion, be bid in by a stranger, the guarantor would be guilty of no fault. The mortgagee’s resources for the satisfaction of his debt would be diminished by the value of the land, but no blame could attach to the guarantor. Now, if after the mortgagee has suffered this loss the guarantor should, in good faith, buy the tax-sale certificate, what legal duty would he violate ? What breach of good faith or good morals would he commit? And if he may take an assignment of the tax-sale certificate why may he not bid at the sale? The mortgagee, not being under any obligation to pay taxes, is guilty of no fault if the land go to tax sale. He may buy at the tax sale, cut off the title of his mortgagor and throw the entire burden of providing security for the debt upon the guarantor with perfect impunity, simply because he owes no duty to anybody to pay the taxes, and, consequently, in taking the tax title takes advantage of no default of his own. It is not even presumed that he purchases to protect his mortgage lien. (Waterson v. Devoe, 18 Kan. 223; McLaughlin v. Acom, 58 Kan. 514, 50 Pac. 441.) Why should that be reprehensible in the guarantor which is entirely virtuous in the mortgagee, when both occupy precisely the same relation to the tax and neither is under any contract duty to the other respecting it?
It is not necessary to a decision of this case that these , questions be answered. The court expresses no opinion upon them, but assumes that it might be wrong to the mortgagee to permit the guarantor to take a tax title to the real estate in controversy. The question then arises, Ought the guarantor to be put on the same footing with the mortgagor in that respect, as the Nebraska court and the Kansas court of appeals both held? The prohibition upon the guarantor ought to' extend no further than is necessary to accomplish justice, and if the guarantor can be protected from loss without injury to others that ought to be done. The great jurist who wrote the text quoted above recognized the rightfulness of tax titles voidable only at the instance of parties who would be injured, and then only to the extent necessary for their protection. (2 Cooley, Tax., 3d ed., 971.) Besides this, in deciding a case in volving questions relating to the protection of a mortgage lien from a tax lien he wrote the following:
“Sometimes a party by the force of circumstances is placed in a position where another may.take the profit of his losses without being under obligation to make return; but the adjustment of legal rights on equitable principles is never meant to work such a result.” (Connecticut Mut. L. Ins. Co. v. Bulte, 45 Mich. 113, 123, 7 N. W. 707.)
If the mortgagor should pay his debt in full no principle of law or equity makes it necessary that he have his land free of the taxes which the guarantor and his successors in interest have paid. If the land should sell for enough at foreclosure sale to reimburse those who have paid the taxes as well as the mortgagee it would be grossly unjust to return the surplus above the mortgage indebtedness to the landowner and thus permit him to escape the payment of his taxes. If the guarantor should at any time be obliged to protect against a conveyance of the land for taxes, the landowner ought not to reap a profit from his own neglect of duty to the state and to the mortgagee and from the hardship of the guarantor, who has been obliged to discharge that duty for him. If the guarantor pay taxes outright or redeem from a tax sale he has no remedy. His outlay cannot be recovered. Therefore justice demands that, as against the landowner, the guarantor shall be allowed to bid at the tax sale, or if another holds the certificate, of sale to take an assignment of it. In due time he must then take out a tax deed or lose his lien, and if the landowner should continue in default, and should neglect or refuse to redeem, the tax deed should have the same effect against him as in other cases. Looked at from the side of the mortgagee, justice requires no more than that the rights of the guarantor be subordinated to his own. It is unconscionable for him to demand that the guarantor shall lose entirely the money advanced to protect his mortgage which he could have added to his lien if he had paid it. Therefore the only just rule is that the guarantor may take a tax title to the land good against all the world except the mortgagee, and that such a title shall be impeachable by the mortgagee only so far as may be necessary to protect his rights.
This court is already virtually committed to this doctrine. In the case of Manley v. Debentures Co., 64 Kan. 573, 68 Pac. 31, the Kansas Trust and Banking Company had borrowed money upon its debenture bonds and had secured them by the deposit of real-estate mortgages taken from third parties to itself. The mortgages were foreclosed, the lands were bid in and title was taken in a “Debentures Liquidation Company,” to be disposed of for the benefit of the bondholders. Certain tax certificates upon the lands were taken .out with money furnished for the purpose by the banking company and for its benefit. These certificates were assigned to Mary A. Manley, as security for an indebtedness of the banking compány to her. With affairs in this situation; the debentures company occupying in legal effect the position of the bondholders, and Mary A. Manley holding no rights superior to those of her assignor, it was held the tax certificates should be canceled. In the opinion it was said:
“Where one has given, as security to his own debt, a mortgage given by another on property, such one can acquire no title to, or lien upon, such property so as to depreciate its value as such security. So that, in this action, when-the Kansas Trust and Banking Company purchased these tax-sale certificates, it amounted in law to a payment of the taxes thereon; at least, as between the debenture-holders and the Kansas Trust and Banking Company, or its assigns, having knowledge of these facts.” (Page 576.)
The carefully guarded limitations placed upon the scope of the decision are here italicized for emphasis.
The banking company occupied very nearly the position of a mortgagor.' Although the mortgages were given by third persons, the banking company used them to secure its bwn debt. It virtually pledged the real estate covered by the mortgages to the bondholders, and could not destroy the security of the pledge by acquiring an interest in the property adverse to the bondholders. If it had taken title to the land by tax deed, equity would have said the land was still pledged to secure the bondholders. The mortgages having been foreclosed, there was no way to preserve a lien for taxes in favor of the certificate holder and against the landowner, so that it was proper for the court to declare the taxes paid as to the bondholders and to cancel the certificates. But the court went no further than the rights of the bondholders demanded, and left the way open to protect certificate holders against landowners upon whom rests the duty, to pay taxes if opportunity should arise in other cases.
In view of the foregoing it must be held that the purchase of the land in controversy by the mortgage company at the tax sale did not constitute a payment of taxes the same as if the mortgagor had taken out the certificate of sale. The tax certificate carried with it a lien for taxes and the right to a tax deed. If the tax deed had been valid it would have conferred title good against all persons except the mortgagee. Being invalid, it entitles the holder to a lien for taxes superior to all interests except those of the mortgagee. By lapse of time and inaction on the part of the mortgagee he has lost the right to interpose the only fact which would subordinate the tax lien to his own. The remedy on the guaranty being barred by the statute of limitations, the guaranty is no longer a factor in the relations of the parties. In this suit it has no more legal effect upon the rights of the parties than would be the case if no guaranty had been given, and the tax-title holder has all the rights which a stranger to the mortgage debt would have..
The judgment of the district court is reversed and the cause is remanded, with instructions to proceed further according to the views herein expressed. | [
-16,
126,
-8,
-82,
74,
64,
58,
-104,
121,
53,
-89,
83,
109,
-62,
20,
109,
-9,
45,
96,
106,
117,
-78,
39,
104,
-46,
-5,
-47,
-35,
-75,
-34,
-28,
95,
76,
48,
74,
-43,
-26,
-102,
-51,
92,
78,
7,
0,
77,
-7,
64,
48,
27,
80,
73,
65,
-97,
-13,
37,
28,
-53,
76,
40,
73,
61,
-48,
-8,
-101,
-123,
127,
7,
49,
36,
-40,
71,
120,
-114,
-112,
17,
1,
-24,
115,
54,
-106,
-12,
73,
-101,
9,
54,
102,
49,
125,
-19,
-4,
-104,
14,
-41,
29,
-89,
-106,
88,
2,
32,
-73,
-99,
124,
16,
-57,
126,
-26,
5,
29,
109,
15,
-114,
-42,
-77,
39,
116,
-101,
3,
-1,
-125,
32,
97,
-50,
-80,
93,
103,
122,
-101,
-114,
-8
]
|
Per Curiam:
The motion to dismiss is denied. The decision upon the merits is controlled by the opinion rendered in the case of Ham v. Booth, 72 Kan. 429, 83 Pac. 24, with which the court is entirely satisfied. The judgment of the district court is affirmed. | [
-80,
-1,
108,
-100,
74,
96,
48,
-74,
73,
-95,
119,
115,
103,
-102,
-100,
55,
115,
125,
-47,
-69,
-51,
-77,
7,
-47,
114,
-110,
-37,
-33,
-79,
-18,
-27,
116,
76,
112,
-54,
-59,
70,
-56,
-115,
24,
-122,
5,
40,
109,
-79,
-101,
60,
43,
126,
11,
17,
-42,
-5,
12,
27,
-25,
-119,
62,
-37,
-71,
-32,
57,
-118,
7,
127,
16,
33,
48,
-108,
-58,
-16,
110,
80,
-80,
27,
-24,
50,
-10,
-122,
-108,
106,
-5,
-88,
116,
99,
35,
124,
-17,
-72,
-70,
54,
62,
-113,
-90,
-103,
8,
73,
43,
-74,
-71,
116,
48,
14,
-8,
-17,
-100,
23,
108,
-118,
-113,
-106,
-93,
31,
56,
4,
67,
-21,
17,
16,
48,
-49,
-32,
94,
115,
27,
-70,
-34,
-76
]
|
Per Curiam:
W. S. Edwards sued S. M. Porter and H. A. Truskett for $3333.33, and having failed to recover brings this proceeding to reverse the judgment against him. His petition alleged that at a time when he and each of the defendants owned an equal amount of stock in a mining corporation he authorized them to sell his interest together with theirs; that they sold the stock for $20,000 but falsely represented to him that they had received but half the amount; that, in ignorance of the real facts, he made a settlement with them and received his share on the basis of a sale for $10,000. He therefore demanded judgment for a third of the sum concerning which no accounting had been made with him. The case was tried without a jury. No findings of fact were made. A reversal is asked upon the sole ground that under the evidence judgment should have been given for the plaintiff,
The evidence introduced in behalf of plaintiff was sufficient to support his claim, and a demurrer to it was rightfully overruled. The defendants gave oral testimony to the effect that they had been requested by plaintiff to sell the stock for $10,000 if they could get it, and, if not, to let it go for such amount as could be obtained, not less than $7500; that in the course of negotiations for a.sale the prospective buyers exacted as a condition of purchase that the defendants should guarantee that no indebtedness existed against the corporation, and in particular should agree to defend at their own expense a suit then pending against it, and pay any judgment that might be rendered therein; that defendants offered to sell the stock for $10,000, if not required to assume personal responsibility for any claims against the corporation; that this offer was declined, and an agreement was finally made and carried out by the terms of which the buyers were to pay $20,000 and defendants were to deliver the stock and furnish the desired indemnity; that this entire transaction was reported to plaintiff, and that he, with a full knowledge of all the facts, made a settlement with defendants and accepted the amount paid him as his share of the proceeds of the transaction, and only asked a further accounting from defendants after they had made an advantageous settlement of the litigation against the company. If this testimony be accepted as true a good defense was established. The trial court evidently believed it, and its decision in this regard is not subject to review here.
The judgment is therefore affirmed. | [
114,
-20,
-104,
-99,
10,
96,
42,
-102,
65,
-21,
39,
-13,
-87,
78,
16,
49,
-25,
9,
80,
99,
86,
-125,
23,
-29,
-62,
-109,
83,
-51,
-79,
78,
-28,
-44,
76,
32,
-62,
-107,
-30,
-128,
-55,
92,
14,
-123,
24,
-32,
-7,
0,
48,
63,
80,
11,
49,
-98,
-13,
46,
28,
75,
105,
40,
107,
61,
-48,
-8,
-110,
69,
127,
22,
-125,
4,
-100,
79,
-40,
62,
-100,
48,
1,
-23,
122,
-66,
-58,
116,
105,
-69,
12,
98,
38,
35,
1,
101,
-104,
-88,
47,
-2,
-113,
-89,
-12,
8,
1,
105,
-68,
-97,
58,
84,
7,
-2,
-24,
-99,
93,
61,
7,
-53,
-42,
-126,
-97,
94,
-100,
11,
-21,
-109,
50,
117,
-50,
-94,
92,
6,
115,
-109,
-114,
-100
]
|
The opinion of the court was delivered by
Cunningham, J. :
This was an action brought by the defendant in error to recover for personal injuries sustained by being thrown from a wagon heavily loaded with lumber as he was driving into the grounds upon which the plant of the plaintiff in error was located.
Broadbent was an employee of a lumber company which was supplying lumber to the packing company. He was sent to deliver a heavy load of lumber, according to the order of the packing company, at its plant. He was directed to drive along a certain roadway to a given point. In so doing the front wheels of the wagon sank suddenly into the soft roadway and he was thrown forward and downward upon the tongue, breaking one of his legs and sustaining other injuries.
The particular negligence of the packing company, as charged by the petition, was that it—
“negligently and carelessly constructed and maintained a certain road or driveway, ... at a point near the said main entrance, and upon the land of said defendant; .... that said last-mentioned road or driveway was carelessly and negligently constructed and maintained by the said defendant company in this, to wit, that said last-mentioned road or driveway was elevated above the general surface of said land by the placing of loose and incompact dire and materials, to wit, pieces of boards, boxes, chips, shavings, sweepings and refuse from the plant and yard of said defendant company, the same being covered by cinders loosely placed or dumped thereon, all of said material in said road or driveway being unpacked or rolled and in such a condition that the same was unsafe and dangerous for the passage of loaded wagons thereon, and the wheels of said loaded wagons or teams would easily sink or cut into the material composing said road or driveway, and that the same was so as aforesaid negligently and carelessly permitted by said defendant so to remain.”
The character of his injuries, as stated in his petition, was that he was thrown against and across the the tongue, and between the horses, thereby—
“bruising, maiming and injuring plaintiff and causing him to become sick and sore, and fracturing his left leg midway between his ankle and knee, thereby causing plaintiff great bodily pain and mental anguish, which he will continue to suffer during the remainder of his life, and permanently injuring him.”
He claimed damages in the total sum of $2000, itemized as follows : General injury, $1700 ; loss of time, $150; medicines and medical services, $150. The jury awarded him damages in the sum of $1999, without itemizing the specific amounts. A motion for a new trial was denied, and the defendant now seeks a reversal of the judgment.
The first assignment of error arises upon the court’s permitting plaintiff to show that eight days after the occurrence of the accident the surgeons rebroke the partially united bones of his leg and reset the same, having discovered that, either by reason of faulty setting in the first place, or by a misplacing of position by involuntary or accidental movement subsequent thereto, the fractured parts were not properly adjusted. It seems that this operation was not a very serious one. One of the surgeons testified that the process of knitting of the bones had not then begun, because the broken surfaces were not in apposition, except slightly so where the fractured parts touched edgewise. The operation, however, caused the plain tiff pain, and it is claimed by the packing company that the court erred in permitting this to be considered by the jury as an element of plaintiff’s damages ; not because it might not be recovered for had it been properly pleaded, but because the allegations of plaintiff’s damages did not specifically point out this item. Various decisions of this court are cited to the point that proof should be confined to the issues made by the pleadings. We do not disagree with counsel as to this rule; however, it does not require that every incident of, or subordinate result flowing from, an injury should be pointed out or complained of in order to warrant a recovery. Such a rule would result in infinite prolixity, and tend to confuse, rather than to inform.
The general rule is that the pleading of an injury inflicted will admit proof of all results which naturally and approximately ensue or may reasonably be expected to result therefrom. The employment of a surgeon to set the broken leg was certainly such a result. That the surgeon might make a mistake in so doing might reasonably be anticipated, as mistakes occur under the manipulation of the most skilful. Even had an unskilful surgeon been employed, and a misalignment made by him, without fault on the part of the plaintiff, still we are of the opinion that the general allegations of the petition would have been sufficient to admit the criticized proof, especially in the absence of any counter-allegation in the answer.
The Encyclopedia of Pleading and Practice, volume 5, page 746, states the rule as follows :
“It is not necessary in such actions that the petition should undertake to give a specific catalogue of the plaintiff’s injuries. It is enough that the declaration shows the injury complained of without de scribing it in all its seriousness, and a recovery should be had in proportion to the extent of the injury.
“Nor do the rules of pleading require that every effect or result following the infliction of particular injuries shall be set forth in the declaration in order to recover therefor, since such a course would, in effect, require the pleading of the entire evidence.”
In City of Chicago v. Sheehan, 113 Ill. 658, the doctrine was stated thus :
“It is enough that the declaration showed the injury received without describing it in all its seriousness, and the recovery could be to the whole extent of the injury.”
In The Ohio & Mississippi Railroad Company v. Hecht, 115 Ind. 443, 17 N. E. 297, the complaint set out that the plaintiff was inj ured as follows :
“His foot and ankle were sprained, strained, and otherwise greatly injured and bruised, and the ligaments and tendons of plaintiff’s foot were strained and drawn and permanently injured, so that the plaintiff suffered great pain and anguish and became sick, sore and lame.”
Under this allegation the court held :
“The complaint makes a case entitling the appellee to full compensation for the injury which proximately resulted from the appellant’s wrong. Where a disease caused by the injury supervenes, as well as where the disease exists at the time of the injury, and is aggravated by it, the plaintiff is entitled to full compensatory damages.”
In Johnson v. McKee, 27 Mich. 471, the following language was used:
“When the defendant was informed that damages were sought for sickness and disorder, and their attendant expenses, as well as for wounds and bruises, he was bound to accept evidence of any sickness the origin or aggravation of -which could be traced to the act complained of.”
In Keyser v. C. & G. T. Ry. Co., 66 Mich. 390, 399, 33 N. W. 867, under an allegation that a child had his legs and arms broken and dislocated, and his body and head greatly bruised, broken, and injured, and that he was otherwise greatly hurt and wounded, it was held competent to prove that as a result he had what the witness.termed fits, and was troubled with his kidneys. The court remarked :
“While the testimony showed that the ailment referred to was not the necessary consequence of the injury, it did show that it was regarded as a natural consequence, and this was sufficient to bring the proof within that portion of the declaration alleging the injury.”
In Williams v. Railway Co., 102 Mich. 537, 61 N. W. 52, under a declaration alleging injuries by dislocation, straining, laceration and injuries to muscles, nerves, and otherwise, it was held admissible to prove that the plaintiff was suffering from inflammation of a nerve.
An allegation in a complaint, in Babcock v. St. Paul, Minneapolis & Manitoba Ry. Co., 36 Minn. 147, 30 N. W 449, that plaintiff had suffered an injury and “by reason thereof has been and is sick, lame, and sore, and unfitted for manual labor and has suffered great pain of body and mind,” was held sufficient to admit evidence that the injury caused nervous prostration, spinal irritation, and torpidity of the liver.
Plaintiff in error contends that the result of the subsequent breaking and resetting of plaintiff's leg was so independent of, and disassociated from, the original injury as not to warrant a recovery therefor except by specifically pleading it. It must neces sarily be admitted that were this a natural or approximate result of the injury no special pleading would be required.
Upon this point the case of Postal Telegraph Cable Company v. Hulsey, 132 Ala. 444, 462, 31 South. 532, is in point. There the plaintiff, whose leg had been broken through the fault of the defendant, was taken with something like colic one night, and in attempting to turn over on his side, to keep from vomiting on his bed rebroke the fractured leg after the fracture had begun to unite. The court said :
“It is not pretended that the leg was rebroken by any conscious fault of the plaintiff; but if rebroken, it was a natural result, or one liable to happen flowing from the cause of its being broken in the first instance, having immediate and causal connection therewith. But for the original breaking, the rebreakage could not have occurred. Western R. of Ala. v. Mutch, 97 Ala. 194, 11 South. 894, 21 L. R. A. 316, 38 Am. St. Rep. 179; 16 A. & E. Encycl. of L., 2d ed., 431, 436; Thompson v. L. & N. R. R. Co., 91 Ala. 496, 8 South. 406, 11 L. R. A. 146.”
To the same effect was the case of Sauter v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 50, 23 Am. Rep. 18. The injury was the infliction of a hernia. A surgical operation for relief therefrom, by a mistake of the surgeons employed, resulted in the death of the injured. It was held that, notwithstanding this mistake, the railroad was liable for damages for his death, the original injury being the proximate cause of this result. The court remarked :
“The employment of a surgeon was proper and may be regarded as a natural consequence of the act, and the mistake, which it is evident might be'made by the most skilful, may be regarded of the same character.”
Several cases are cited, in support of this conclusion. (See, also, Chicago City Ry. Co. v. Hastings, 136 Ill. 251, 26 N. E. 594; C. B. & Q. R. R. Co. v. Sullivan, 21 Ill. App. 580, 17 N. E. 460.) We conclude that evidence relative to the resetting of the broken leg was proper.
As above noted, the allegation of négligence was that the road sank because it was “elevated above the general surface of said land by the placing of loose and incompact dirt and material, to wit, pieces of boards, boxes, chips, shavings, sweepings and refuse from the plant and yard of said defendant company, the same being covered by cinders loosely placed or dumped thereon, ... in such a condition that the same was unsafe and dangerous for the passage of loaded wagons thereon.”
In support of this allegation the plaintiff introduced several witnesses whose testimony tended to show that the land upon which the road was constructed was originally low and marshy; that the packing company had filled up the general surface by dumping thereon loose material of the nature and kind indicated in plaintiff’s petition, and upon such surface had built the road in question out of cinders and other more substantial material. The defendant, in making its case, called witnesses to prove that the substratum was of sand, and not of the loose material shown by the plaintiff, and then, referring to the roadway above the general surface, questioned one witness as follows : “I will ask you to state whether or not there is any rubbish, like shavings or sawdust or pieces of sticks, in there?” Whereupon the attorney for the plaintiff said in open court: “We don’t claim that there was in the road. We never have claimed in the road. We say, it was the ground on which the road was built.” No claim was made that this was an abandonment of the charge of negligence on the part of the defendant. It proceeded with its evidence tending to prove that the road was solid, and that the accident occurred not as the plaintiff claimed, but because he had, through his own carelessness, driven off the solid roadway.
It is now claimed that in view of what the plaintiff's attorney said the court erred in instructing the jury that the plaintiff’s claim of negligence was that set out in the petition. We cannot agree with the plaintiff in error in this claim. Neither party at the time treated the remark of plaintiff's attorney as an abandonment of his case, but both proceeded as though the allegation of the petition specifically set forth the substance of the oral statement. More than this, the roadway must have been made up of loose materials, as indicated in the petition, if the general elevation of the land, including that immediately beneath the roadway, had been raised by the deposit of that kind of material.
The only other assignment of error arises upon an instruction given by the court as to the measure of damages. As before indicated, the damages claimed were $1700 for general damages, $150 for loss of time, and $150 for medicines and medical and surgical attendance. The plaintiff’s evidence tended to establish the first two items. As to the third, the only evidence was that given by the plaintiff, in which he said : “Well, I have expended right near fifty dollars, I think.” In addition to this he showed the employment of surgeons and nurses, and that they had bestowed upon his case considerable time and attention, the value of which is nowhere indicated. The court instructed the jury that it might find for the plaintiff such sum as the evidence warranted, not exceeding $2000. The jury returned a verdict for $1999. If we say that the jury allowed a full recovery of $1700 as claimed for general damages, and $150 for loss of time — which in both instances is all the jury could have allowed, being all that was claimed — there remains $149 which must have been allowed for the third item. Was this erroneous ? The most that the plaintiff showed by his evidence was an expenditure of fifty dollars. No sufficient information was given the jury from which they could determine the value of services rendered by surgeons and nurses. It would be a matter of mere speculation, entirely unwarranted, to permit a jury to find the value of such services from the statement that they were rendered, accompanied by a statement, somewhat detailed, of their nature and extent. How could the jury, unskilled in such matters, be thereby sufficiently informed as to value to warrant the rendition of a verdict ?
Defendant in error suggests that the cases of Bentley v. Brown, 37 Kan. 14, 14 Pac. 434; Anthony v. Stinson, 4 id. 211, and Noftzger v. Moffett, 63 id. 354, 65 Pac. 670, furnish authority for upholding the verdict upon the evidence introduced. These cases do not go to that extent. The first two simply declare that the opinions of experts as to values, while entitled to great weight, are not binding or conclusive, while the last one holds that where the recovery of an attorney’s fee was sought, and the character and importance of the litigation, the labor and time necessarily involved therein, were shown, the court, with its knowledge óf of the value of legal services, had a basis for the determination of the amount to be allowed, and that it was error to hold that the attorney was not entitled to to recover anything.
The plaintiff in error insists that this excess of ninety-nine dollars indicates such passion and prejudice on the part of the jury as to invalidate the entire verdict. We are not compelled to such conclusion. In Railway Company v. Frazier, 66 Kan. 422, 426, 71 Pac. 832, this court said:
“One of the grounds for a new trial mentioned in the statute is : ‘Excessive damages, appearing to have been given under the influence of passion or prejudice.’ It is not sufficient that the damages be excessive. It must appear from the entire case that the reason for such excessive damages is found in the passion or prejudice of the jury.”
We do not find any indication of passion or prejudice in this or any other fact of this case. In a vague, general way most persons know that surgeons’ fees are not always of modest proportions. The fact that in this case the jury found ninety-nine dollars" to be the i’ight sum to allow therefor indicates no prejudice on their part against the defendant, so that we are not necessarily called upon to reverse the entire judgment because of this allowance. We do, however, hold that there was not sufficient evidence to sustain such finding, and therefore direct that, in case the plaintiff below so choose, the judgment be modified by the deduction of ninety-nine dollars therefrom as of the date of its entry. In case the plaintiff do not so elect the judgment will be reversed, and a new trial awarded. The costs in this court will be divided.
All the Justices concurring. | [
-14,
122,
-40,
-115,
11,
104,
42,
-40,
113,
-123,
37,
119,
-49,
-121,
-115,
35,
-29,
125,
-12,
47,
-35,
-77,
19,
-29,
-45,
-13,
35,
-60,
-79,
74,
100,
-43,
77,
48,
26,
5,
-26,
-54,
-60,
28,
-50,
37,
-88,
-20,
89,
80,
-72,
42,
21,
73,
113,
-114,
-37,
34,
24,
79,
41,
40,
107,
45,
-64,
-15,
-72,
13,
91,
18,
-127,
102,
-100,
35,
88,
63,
-112,
17,
0,
-24,
114,
-92,
-107,
-12,
33,
-103,
72,
66,
98,
33,
69,
-57,
72,
-8,
47,
110,
13,
-90,
2,
56,
59,
9,
-66,
-99,
-38,
22,
22,
120,
-1,
29,
8,
109,
-125,
-125,
-108,
-109,
-49,
-92,
-100,
87,
-21,
-115,
54,
117,
-36,
-94,
92,
5,
80,
-101,
-97,
-2
]
|
The opinion of the court was delivered by
Mason, J. :
The Kinnard Press Company sued Wyatt Stanley upon a note for $1267. Stanley defended upon the ground that a gasoline-engine for which the note was given had failed to meet certain express warranties, and that he had rescinded the contract of purchase. A trial resulted in a judgment for the defendant, and the plaintiff prosecutes error. A number of objections made to the consideration of the case on its merits have been considered and found insufficient.
The specific warranty, a breach of which was claimed by the defendant, was that the engine was capable of developing twenty-five horse-power “when tested by the purchaser by the system for discovering the horse-power of an engine, known as the break-test system.” This was incorporated in the printed form prepared by the company, upon which the order for the engine was made. There was evidence sufficient to justify a finding that in actual use the engine could not develop the specified horse-power; but no test was ever made by the purchaser according to the system prescribed in the contract of warranty. It is contended by plaintiff in error that the capacity of the engine must be determined by the very test stipulated for by the company ; that to sustain his claim of a breach of this warranty, the defendant was required to show the application of such test and the failure of the engine to develop the required power when measured in this manner. To this we cannot agree. It is but just to assume, as against the company, that whatever may have been the peculiarities of the test described in the contract it proceeded upo» some correct principle, and afforded a means for determining with reasonable accuracy the capacity of the engine under the ordinary conditions of actual1, use. To indulge in any other presumption would be# to permit the company to perpetrate a manifest fraud. There was evidence that the engine when operated by agents of the company under conditions apparently satisfactory to them failed to develop more than fifteen horse-power. This was some evidence that it could not develop twenty-five horse-power measured by any fair method, and the company cannot be heard to say that the method it proposed was an unfair one.
The contract also contained this provision: “Sev enty-four degrees gasoline is the grade upon which our warranty is based.” The gasoline used upon the trial of the engine was of a grade described as seventy-two degrees. It is argued that a test made with an inferior quality of gasoline was not binding upon the company. It is a sufficient answer to say that there was competent evidence from which it could have been found that the difference between the two grades of gasoline mentioned was inconsiderable so far as concerned the operation of the engine, and also that an authorized agent of the company waived the requirement of the contract in that regard.
The contract contained a provision that “continued use of the engine for five days without complaint being made direct to the Kinnard Press Company at its factory in Minneapolis, by registered letter, shall be sufficient evidence that the warranty is fulfilled.” Use of the engine was begun July 3,1901. No notice of dissatisfaction with its operation was given until July 9. It is claimed that these facts precluded a recovery by defendant. It does not appear, however, that the engine was used continuously from July 3 to July 9, or that it was used for more than three days during that time. It was the continued use of the engine for five days without complaint that was to conclude the purchaser — not its retention for five days from the time it was first used.
The note was executed July 13, 1901, after the trial of the engine, being made payable October 1. Plaintiff in error seeks to give to this transaction the effect of a final acceptance of the engine. It is not capable of that interpretation, however. The original contract of purchase called for a note to be given to be due October 1, and provided that if such a note were not given the contract itself should stand as a written ob ligation to make payment at that time. The mere delivery of the note made no change in the relation of the parties, one way or the other, and no circumstances were shown tending to give it the effect-, claimed.
Complaint is made of the admission of testimony regarding a conversation between an agent of the ■ plaintiff and the defendant at the time the note was. given. The record, however, does not disclose that. any timely objection was made to its reception.
The judgment is affirmed.
All the Justices concurring. | [
114,
122,
120,
-82,
10,
96,
42,
-102,
89,
-63,
39,
83,
-83,
-53,
-124,
81,
-26,
125,
85,
106,
101,
-77,
23,
83,
-46,
-13,
-7,
-39,
49,
-39,
-4,
124,
12,
44,
-118,
-43,
-26,
-54,
-59,
88,
-50,
4,
57,
100,
-39,
-104,
52,
123,
-11,
79,
81,
-113,
99,
46,
25,
-49,
45,
62,
-21,
41,
-47,
-15,
-70,
-115,
109,
18,
48,
38,
-100,
103,
-40,
30,
16,
-111,
40,
-8,
114,
-74,
-62,
-4,
37,
-103,
8,
38,
99,
50,
21,
-51,
-52,
-120,
47,
-33,
-113,
-89,
20,
104,
43,
105,
-105,
31,
50,
18,
-121,
122,
-2,
-107,
95,
124,
19,
-117,
-106,
-125,
79,
98,
-100,
-126,
-17,
-125,
16,
116,
-113,
-70,
92,
71,
58,
-101,
-113,
-66
]
|
The opinion of the court was delivered by
Smith, J. :
Iiemmo Ruiter held a benefit certificate in the Modern Woodmen of America, f2000 in amount, payable at death to his wife, Ida Ruiter. On February 13, 1900, the insured filled out and signed a blank form, on the back of his certificate, in which he re quested its cancelation and that a new one be issued in the same amount, payable to John Ruiter, a brother. The written request was duly acknowledged before a notary public. The certificate with the request for a change in the beneficiary was mailed at Stillwater, Okla., directed to the head clerk of the society at Rock Island, 111., on February 13, 1900. A fee of fifty cents was remitted with it. On February 15 Hemmo Ruiter died. The letter transmitting the certificate and the request for a change of beneficiary was received by the head clerk on February 16. The claim against the society'was afterward allowed without determining to whom it should be paid. After such allowance, John Ruiter, the beneficiary, died, and this action was begun by his administrator to recover the insurance. A short time after this suit was instituted, Ida Ruiter, the widow, sued in Oklahoma to recover on the certificate. She had judgment for the amount against the society, which it paid. The present action was tried without a jui’y, resulting in a judgmeixt denying a recovery, and in favor of defendant below, the Modern Woodmen of America.
A by-law of the society affecting the power of a member to change a beneficiary, which was applicable to the rights of the parties, reads as follows :
“If a member in good standing at any time desires a change in the name of his beneficiary or beneficiaries, he shall pay to the camp clerk a fee of fifty cents and deliver to him his benefit certificate, with the surrender clause on the back thei’eof duly filled out and,executed by him, designating therein the change desired in the name of the beneficiary or beneficiaries. The execution of such sxxrrender clause by the neighbor shall be in the presence of, and attested by, his camp clex’k; provided, however, that if the member be so situated that he cannot execute the said surrender in the presence of the clerk of his camp, the sig nature of the member thereto may be attested by the jurat or acknowledgment of any person authorized by law to administer oaths and take acknowledgments. The local clerk shall forward said certificate with said surrender clause indorsed thereon, and one-half of said fee of fifty cents, to the head clerk, who shall thereupon issue a new benefit certificate, payable to the beneficiary or beneficiaries named in said surrender clause. No change in the beneficiary shall be effective until the delivery of the new certificate, and until such time the old certificate shall be held in force ; provided further, that the new beneficiary or beneficiaries so named shall be wdthin the description of beneficiaries contained in section 40 hereof. No change in the designation of the beneficiaries shall be of binding force unless made in compliance with this section.”
It is urged by counsel for plaintiff in error that, the member having satisfied all .the conditions on his part necessary to make a change' in the beneficiary, the trial court should have applied the equitable doctrine to the facts and treated the expressed desire of the insured as an accomplished fact, in consonance with the principle that courts will decree that to be done which ought to be done.
It must be kept in mind that “the rights of members in beneficial societies like the Modern Woodmen rest in contract.” (Modern Woodmen v. Taylor, 67 Kan. 368, 374, 71 Pac. 806, 808.) The member in this case contracted that in the event he desired to change the beneficiary named in the original certificate he would surrender itj pay a fee to the head clerk, and that no change in the beneficiary should be effective until the delivery of the new certificate, and until such time the old certificate should be held in force. The new certificate was never delivered to the member, or to any other person for him. He died before his request for a change was réceived by the officer of the society on whom the duty was imposed to issue a new certificate-in lieu of the old. Section 41 of the by-laws abové set out provides, further, that “no change in the designation of the beneficiaries shall be of binding force-unless made in compliance with this section.”
In Olmstead v. Benefit Society, 37 Kan. 93, 96, 14 Pac. 449, 451, the court declined to decide the question whether the right of a beneficiary was vested when the policy was issued, or was subject to the will of the assured alone, with respect to making a change.. The court did say :
“It is clear that the beneficiary can only be changed and the benefit transferred to another in the manner-prescribed by the rules and regulations of the society, and in accordance with the terms of the contract. . If we assume, as the authorities appear to hold, that a member of a cooperative society retain» the power to change the beneficiary, still he cannot exercise his power except with the consent of the society, and in conformity with the rules and regulations of the society.”
In Titsworth v. Titsworth, 40 Kan. 571, 20 Pac. 213, relied on by plaintiff in error, it was stated that a rule of the society prescribing the manner by which a member may dispose of his insurance is directory in character, for the protection of the company only. The facts were that Titsworth, a member of the Ancient Order of United Workmen, a fraternal association, held a benefit certificate for the sum of $2000, payable to his wife. In July, 1886, he was divorced. In August the original certificate was surrendered and another issued, payable at death to his mother and brother, in equal amounts. After Titsworth's death the mother brought an action against the society, based on the benefit certificate. The society appeared, paid the $2000 into court, and asked that the wife be made a party, which was done. The society was by order of the court released from any further obligations respecting the amount of insurance. It took no further part in the litigation. The signature of the member desiring to change the beneficiary was not made in the presence of the recorder, or attested by the seal of a notary public or some officer of a court of record having a seal, and hence it was claimed that, it was ineffectual to change the direction of the benefit. The court said :
“The precise contention is that this last benefit certificate, not'having been issued in the exact manner prescribed by the by-laws of the association, was a nullity, and the first certificate, in which the plaintiff in error was the beneficiary, remains in force.” (Page 575.)
The court then proceeded to hold, citing cases in support of its ruling, that the society having issued a new certificate, changing the beneficiary from the wife to the mother, all questions whether it was done in conformity with the rules and regulations were concluded. It was further held that the society, having paid the insurance money into court, admitted that the certificate was rightfully issued, and that all contention whether its rules and regulations respecting these matters had been complied with were out of the case and disposed of entirely.
The Titsworth case would be applicable here if in the present case the benefit certificate had been changed and delivered in the lifetime of Ruiter, the "insured, but the request therefor was so defectively made as to violate the rules of the society. Language used in an opinion, or syllabus, beyond that necessary to decide the controversy on the precise facts before the court does not have the authoritative force of precedent in other cases. For this reason those expressions in the Titsworth case relating to the directory character of by-laws, which point out the manner of making a change in beneficiaries, were not necessary to be used in disposing of the case on the facts. This is a controversy directly between the new beneficiary and the society which insured the life of the deceased. There is no contention that the rule respecting the changing of beneficiaries is unreasonable. The benefit certificate issued to Hemmo Ruiter in his lifetime recites on its face that it is both a certificate and a contract, and he received it agreeing, as the policy recites, “that all the conditions contained in this certificate and the bylaws of this society, as the same now exist, or may be hereafter modified or enacted, shall be fully complied with.”
In a late Nebraska case (Counsman v. Modern Woodmen of America, 96 N. W. 672) it was held, under a by law identical with the one quoted, that the change could be made only on compliance with the laws of the society. To the same effect see National Mut. Aid Society v. Lupold, 101 Pa. St. 111; Independent Foresters v. Keliher, 36 Ore. 501, 59 Pac. 324, 1109, 60 Pac. 563, 78 Am. St. Rep. 785; Coyne v. Bowe, 23 Hun, App. Div. 261, 48 N. Y. Supp. 937.
In cases where the rules of the society prescribe simply that the member shall note the change of beneficiary on his certificate in a prescribed form, and report his action to a particular officer of the society by transmitting his old certificate, and such officer is then required to issue a new one to the member, it has been held that the change takes effect when the assured has done all the things required of him. (Luhrs v. Luhrs, 123 N. Y. 367, 25 N. E. 388, 9 L. R. A. 534, 20 Am. St. Rep. 754; Cullin v. Knights of Mac cabees, 77 Hun, 6, 28 N. Y. Supp. 276; Supreme Conclave Royal Adelphia v. Cappella, 41 Fed. [C. C.] 1.)
In Coyne v. Bowe, supra, the distinction is noted between such cases and those where the members’ rights are affected by rules governing the case at bar. The court said :
“Force must therefore be given in this case to the provision of the law fixing a time when the direction for the new designation shall take effect. The provision is that no change of direction shall be valid or have binding force and effect until the new beneficiary certificate issues. Change of direction involves power of revocation, as that is essential in order to divert payment from the person entitled thereto by the terms of the certificate. It is quite evident that the association deemed it wise to provide against a complicated situation by requiring that no designation or change should be had until it was evidenced by a new certificate. This rule ought to receive sanction, as it will at all times conclusively evidence who the beneficiary is and thereby prevent complications and obviate the difficulty, often very perplexing, of determining between conflicting claimants. In this case no consent was given to change the beneficiary, and no new certificate was issued.” (Page 265.)
It was competent for the assured to contract with the society of which he was a member that no change in his certificate respecting the beneficiary should take effect until the new certificate should be delivered to him. He did so agree, and we are merely upholding the stipulations in his contract when we decide that there can be no recovery against the society on a certificate never delivered. One party to a contract cannot annul its conditions without the consent of the other. As held in the case last quoted from, the contract ought to be sanctioned, as it makes certain who the beneficiary is and prevents complications and diffi culties arising in determining the rights of conflicting claimants. This was the undoubted purpose in making the by-law under consideration.
The judgment of the court below is affirmed.
All the Justices concurring. | [
112,
124,
16,
-100,
8,
-32,
42,
-70,
90,
-95,
-91,
83,
-23,
-62,
5,
111,
-29,
45,
81,
120,
-41,
-77,
55,
-120,
-46,
-77,
-15,
-43,
-80,
93,
-73,
85,
72,
52,
10,
-43,
-26,
-126,
-51,
20,
-114,
4,
11,
-31,
-39,
89,
48,
-25,
0,
91,
117,
-98,
-69,
46,
24,
-61,
45,
44,
125,
-87,
80,
-71,
-69,
12,
-1,
15,
51,
4,
-72,
-89,
104,
10,
-112,
21,
16,
-24,
83,
54,
-122,
116,
47,
-71,
37,
98,
103,
-96,
49,
-19,
-56,
-104,
-114,
-110,
-99,
7,
-106,
25,
34,
105,
-76,
-33,
120,
20,
54,
118,
-26,
21,
28,
40,
1,
-117,
-10,
-111,
-49,
-80,
-100,
-117,
-17,
-121,
-80,
117,
-52,
-14,
92,
67,
120,
-109,
-113,
-104
]
|
The opinion of the court was delivered by
Cunningham, J. :
This action was an appeal by Littler to the district court of Chase county from the award of commissioners assessing damages because of the condemnation of a right of way across his lands for the use of the railroad of the plaintiff in error.
The right of way sought to be taken was a strip 100 feet wide across the northeast quarter of section 19, in general direction from east to west, dividing the quarter-section into two equal parts, approximately. Through the north half, and nearly parallel with the proposed right of way, is the right of way of the Atchison, Topeka & Santa Fe Railroad Company.
In making his case and to show title in him to the land which he claimed was damaged, Littler introduced a deed under which he claimed. The description in it was as follows :
“The northeast quarter of section nineteen (19), township nineteen (19)", range nine (9), excepting the right of way of the A. T. & S. F. Railway Co., being-acres more or less, also excepting public highways.”
After the introduction of this deed the plaintiff, further to prove his case, produced evidence to show the damage to all the land not taken by the Orient company in this quarter-section — that on the north of the right of way of the Santa Fe company as well as that on the south. The defendant company ob jected to this evidence because it was incompetent, irrelevant, and immaterial, upon the theory that the plaintiff’s land in the quarter-section consisted of two separate tracts divided by the Santa Fe right of way, and, therefore, being thus segregated, that he could recover only for such consequential damage as was suffered by that portion south of the Santa Fe right of way.
In such an action as this damages, as a general rule, must be confined to the tract of land over which the right of way is condemned, and cannot include separate and segregated tracts unless they are used together as one farm, and the owner has, as a matter of right, means of communication between them. In some cases parcels of land separated by a public highway, but used together, have been treated as one tract, because the public highway affords a rightful passageway between them, but the intervention of lands across which the owner has not such right would be a barrier to a recovery for such consequential damage.
In this case the Santa Fe company had built, and was operating, its line across the land in question, and, if the fee in the strip of land so occupied by that company was not vested by the deed in question in the plaintiff below, then the land on the north of that road was severed from that on the south ; and in that case the plaintiff would not be entitled to recover any consequential damages to so much of the land as lay north of the Santa Fe railroad.
The burden of proving all facts necessary to recover rested upon’the plaintiff. One of these facts was that these tracts of land separated by the Santa Fe railroad, and thus apparently segregated in such manner as to prevent a recovery for consequential damage to the portion lying north of that road, wTere really nob so segregated ; that the plaintiff had such interest in the fee of the strip of land occupied by the right of way of this road, or such right of passage across it, as would give him the right to go from the north part of his land to the south across that right of way, and thus permit the use of the two tracts as one farm.
We do not think that the language of the deed which he introduced was sufficient to establish this right in him. There was some interest in the quarter-section that the deed did not pass to the plaintiff; it excepted “the right of way of the A. T. & S. F. Railway Co.” It is a matter of common knowledge that the term “right of way” is used, even by the learned, indiscriminately to describe not only the easement which a railroad may obtain by condemnation under our present law, but as well to describe the strip of land which a railroad company occupies for the use of its track, no matter by what title it may hold the same. Probably the greater number of people, when they speak of the right of way of a railroad company, have in mind the ownership of such strip of land. These rights of way are held by the railroads by various titles. Prior to 1868 condemnation proceedings vested in them the fee-simple title. In other cases rights were acquired by deed of lease. In others, and perhaps the larger number, the mere easement, technically known as a right of way, was acquired by the condemnation proceedings now known to our law. It is clear that this term, as generally used, has no exact and well-defined signification. Again, the term “excepting” is such a one as in exact legal phraseology would be construed as retaining in the grantor the fee to the real estate described, instead of merely re serving from the operation of his warranty deed the mere incorporeal hereditament of a right of way ; but this term as well is subject to explanation. It is sometimes used in its strict legal sense of retaining something from the grant and at others in the sense of “reservation,” which is a taking back from a grant a right conveyed by it amounting to a mere corporeal hereditament. It may have been the purpose of the grantor to use the term in either of these senses.
It.is urged by the defendant in error that all these doubts are to be resolved in favor of the grantees under that deed, and being thus resolved the deed shows title in fee simple in Littler, subject only to the technical right of way. This may be the general rule of interpretation as between grantor and grantee, though many respectable authorities doubt even this. It certainly would not be the rule in such a case as is here presented. In our judgment, the language of the deed relative to the interest retained by the grantor contains a latent ambiguity, from which it is impossible, without further explanation, to determine what the rights of the plaintiff below thereunder were, and, as the burden rested upon him, it was his duty to solve this ambiguity before being permitted to recover ; and the evidence which was introduced to prove his resultant damage should not have been admitted until this ambiguity was so solved.
The judgment is reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
-14,
-2,
-7,
28,
-102,
96,
18,
26,
65,
-69,
-91,
87,
-113,
-120,
0,
117,
-1,
125,
-11,
107,
-26,
-125,
71,
-93,
-110,
-77,
83,
-51,
56,
88,
78,
-57,
77,
48,
74,
21,
102,
74,
65,
28,
-114,
-84,
-119,
109,
-39,
72,
60,
123,
16,
79,
17,
-82,
-13,
42,
28,
-29,
-87,
44,
-21,
40,
-111,
120,
-66,
-60,
82,
1,
1,
68,
-104,
7,
-56,
59,
-112,
53,
1,
-4,
115,
38,
-105,
-4,
1,
-101,
72,
-90,
103,
33,
37,
-113,
108,
-120,
14,
-4,
15,
-89,
-94,
24,
99,
96,
-68,
-99,
116,
86,
7,
-2,
-20,
5,
89,
108,
-123,
-117,
-76,
-89,
-49,
112,
-113,
71,
-53,
45,
51,
116,
-53,
-94,
76,
71,
54,
-101,
15,
-36
]
|
Per Guriam:
The city prosecutes error from a judgment obtained against it by Mrs. A. Yan Meter for injuries she sustained by falling on a defective sidewalk. The alleged errors are: That improper evidence was admitted; that the court refused to give a certain instruction; that the verdict is not supported by the evidence; and that judgment should have been rendered for the defendant.
The admission of the evidence of which complaint is made was in response to a question asked plaintiff con cerning her mental condition since the injury. This question was improper, as there were no allegations in the petition under which such damages could have been allowed. However, the plaintiff’s answer to this question referred exclusively to her physical condition. The answer was therefore within the issues, and not prejudicial.
Complaint is made of the admission of the testimony of H. C. White, jr., city clerk, which tended to show that the plaintiff had presented her claim for damages to the city council before she commenced her action, and that it had been disallowed. This evidence was material, and the witness was competent to testify.
The instruction asked and refused does not correctly state the degree of care the plaintiff was required to exercise. It states that if she were guilty of the slightest degree of negligence she could not recover. The slightest degree of negligence is a neglect to exercise the highest degree of care. A traveler on a public street is not required to exercise the highest degree of care. In the absence of knowledge that a dangerous place exists such person is only required to exercise ordinary care; that is, such care as an ordinarily prudent person would exercise under similar circumstances and conditions.
The judgment is affirmed. | [
-80,
120,
-3,
-81,
-53,
97,
56,
-120,
65,
-119,
-17,
51,
-17,
-61,
28,
47,
-11,
-3,
-47,
35,
69,
35,
7,
3,
-10,
-45,
114,
-107,
-77,
111,
-12,
-3,
77,
49,
-54,
-107,
102,
75,
-11,
88,
-126,
-105,
-119,
76,
-103,
66,
96,
123,
80,
15,
113,
-98,
-29,
46,
41,
107,
-87,
44,
74,
-67,
-13,
-16,
-115,
-115,
123,
2,
-94,
38,
-98,
-81,
-34,
8,
-104,
49,
0,
-88,
51,
-74,
-125,
116,
79,
-101,
4,
98,
98,
33,
13,
119,
-72,
-115,
47,
126,
-115,
-90,
-125,
41,
-55,
33,
-73,
-67,
117,
64,
39,
-6,
-2,
92,
127,
108,
11,
-114,
-44,
-71,
-33,
-12,
-72,
-63,
-17,
-121,
18,
81,
-52,
96,
92,
32,
51,
-101,
-98,
-114
]
|
The opinion of the court was delivered by
Cunningham, J.:
This was an action in ejectment. Plaintiff’s title depended upon the validity and force of a tax deed. Judgment was rendered against him. The record shows that the tax deed upon which he relied was executed before the date of the sale for taxes upon which it was based. It is insisted that the date of the deed, as shown by the record, is a clerical error; that notice must be taken that the date of the deed, as shown by the record, was erroneously stated by the scrivener.
It is true that a court may ignore and amend clerical errors, where such errors clearly appear, and may substitute correct dates for dates erroneously stated, if the entire record discloses the clerical error, and contains enough to enable the court to determine the correct date; but it may not change a material matter in a record on the claim that such matter is wrong because of a clerical error, unless it clearly appear that such error is merely clerical. ' In this case it does not so appear. The deed may have been made before the sale. That it would not be legal does not prove that it was not so made. Even if the date of its execution is erroneously stated there is nothing in the record from which the correct date can be determined, and this is essential in determining the other questions raised. • We do not find enough in the record to justify the amendment of the criticized date, even if it be admitted that the date, as it there appears, was so stated because of a clerical error.
Finding, therefore, that the record states that the tax deed was made prior to the date of the sale on which it was based, we must adjudge it to be void, and that it conveys no title to the premises in controversy to the plaintiff in error.
The judgment of the court below is affirmed.
All the Justices concurring. | [
-78,
124,
-35,
-67,
58,
64,
42,
-119,
105,
-123,
-89,
115,
-19,
-62,
28,
57,
-29,
109,
112,
122,
-52,
-77,
39,
105,
-10,
-77,
-47,
84,
-75,
76,
-10,
70,
76,
32,
-62,
21,
102,
2,
-115,
84,
14,
-89,
-88,
101,
-7,
72,
52,
57,
-56,
73,
97,
-50,
-29,
46,
31,
79,
105,
40,
-55,
113,
-64,
-72,
-66,
-115,
79,
7,
-79,
53,
-44,
74,
-24,
-118,
-110,
49,
-128,
-24,
123,
-74,
-122,
116,
45,
41,
40,
102,
34,
0,
69,
-1,
-8,
-104,
46,
-2,
13,
-90,
18,
88,
43,
-83,
-106,
-99,
100,
16,
102,
126,
-28,
-107,
29,
44,
26,
-54,
-48,
-77,
-113,
60,
-104,
3,
-1,
-77,
18,
112,
-49,
44,
92,
103,
26,
-117,
-114,
-8
]
|
The opinion of the court was delivered by
Clark A. Smith, J.:
The appellant, Frank Clough, was arrested, and, after a preliminary examination, was charged by information, tried, convicted and sentenced in the district court of Bourbon county for the crime of robbery in the first degree. He now brings the- case here for review.
The first error complained of is the refusal of the court to grant him a new trial on a motion therefor, on the ground, first, that one of the jurors, after the rendition of the verdict, made statements in conflict with his sworn statements on his voir dire, as to his acquaintance with, and prejudice against, the defendant. This is more in the nature of an impeachment of the juror than of proof of the fact. Such unsworn statements after the rendition of the verdict have been held to be hearsay evidence as to the fact of the prejudice; but, however this may be, the affidavit of the juror made after the alleged statements, if it was true, and the trial court had the right to, and probably did, believe it to be true, showed that during the trial and during the deliberations of the jury he neither communicated nor entertained any prejudice against the defendant.
His second ground for a new trial was that the verdict was not supported by the evidence, in that the evidence did not identify the defendant as the man who committed the crime. We think the evidence shows almost conclusively that the defendant lured Tortel to a secluded spot which was surrounded by underbrush, and stood by while a confederate committed the robbery. While the evidence was somewhat circumstantial, it fully justified the jury in finding the defendant an accessory before the fact.
For a third ground defendant claimed that the court misdirected the jury, in that it instructed as to robbery in the first degree and omitted to instruct as to the lower degree and the grades of crime that are included in the charge in the information. It is true the court did instruct only as to the crime of robbery in the first degree, and furnished the jury only two forms of verdict — one of guilty of robbery in the first degree, and one of not guilty. Had the evidence even tended to establish the crime of robbery in the second degree, or of larceny without force or violence, this would have been erroneous; but such was not the case. If a verdict of guilty of any crime included in the charge, other than robbery in the first degree, had been returned by the jury, it would not have been sustained by the evidence and should have been set aside on motion.
Even if the court erred in its instructions to the jury or in omitting to instruct in some respects, the record fails to show that the error was properly called to the attention of the court. No exception was taken to any instruction given, and no request appears to have been made for additional instructions. The attention of the court was first called to the alleged error after verdict, upon the presentation of a motion for a new trial. This is not good practice. On the trial of criminal cases attorneys for defendants are in court for the purpose of protecting the interests of their clients in every legitimate way. They should not, however, lie in wait to catch the court in error for the purpose of obtaining reversals, but should claim every right of the client at the proper time, as the trial progresses, and object and except to every adverse ruling supposed to be inimical to the rights of the client at the time it is made. After the verdict, and before judgment, all rulings made during the progress of the trial, still supposed to be prejudicial to the client, should be again called to the attention of the court by a motion for a new trial, and exceptions saved to adverse rulings thereon. Then, if desired, the questions may be presented for review in this court.
Two grounds were set forth in defendant’s motion in arrest of judgment. Only one of these — that the information did not charge a public offense — was a proper ground for a motion in arrest of judgment. As the information did charge the defendant with the crime of robbery in the first degree the motion was properly overruled.
The judgment of the district court is affirmed.
All the Justices concurring. | [
-16,
-22,
-79,
-97,
42,
96,
42,
-72,
16,
-96,
-94,
123,
105,
-114,
1,
97,
-85,
127,
85,
105,
-28,
-73,
7,
101,
-78,
-13,
-21,
-43,
51,
-55,
-81,
93,
77,
112,
-54,
-35,
102,
88,
-59,
94,
-114,
-123,
-87,
-61,
-46,
24,
40,
42,
6,
14,
101,
-98,
-29,
42,
28,
-61,
105,
40,
75,
61,
80,
49,
-98,
-115,
77,
4,
-77,
6,
-98,
3,
-40,
62,
-40,
49,
1,
-8,
115,
-106,
-121,
-44,
45,
9,
12,
102,
98,
17,
-35,
-21,
40,
-127,
46,
62,
-107,
-89,
-112,
105,
73,
76,
-74,
-99,
126,
34,
39,
120,
-30,
85,
25,
108,
37,
-33,
-74,
-77,
7,
48,
-102,
99,
-37,
-125,
4,
113,
-51,
-22,
76,
87,
89,
-101,
-113,
-75
]
|
The opinion of the court was delivered by
Clark A. Smith, J. :
This suit was begun in 1896 and is now brought to this court for review the third time. (Vickers v. Buck, 60 Kan. 598, 57 Pac. 517; Vickers v. Buck, 65 id. 97, 68 Pac. 1081.) The last trial resulted in a judgment for plaintiffs, and defendants bring error. It was an attempt to set aside a fraudulent conveyance.
The first error argued in the brief of plaintiffs in error is the denial of the motion for a change of venue. An application for a change of venue is addressed to the sound discretion of the trial court, and it is not shown that the court abused that discretion in this case.
Error is assigned upon the refusal of the court to hear evidence upon, and the dismissal of, the motion of defendants below to dismiss the case on the ground that plaintiffs were non-resident corporations doing business in the state of Kansas without having complied with the provisions of the statute authorizing them to maintain an action or to recover thereon in the courts of this state. The court refused to hear the evidence offered by the defendants in support of their motion. This was error. Section 3 of chapter 125, Laws of 1901 (Gen. Stat. 1901, § 1283), provides :
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that statements provided for in this section have been properly made.”
If the facts stated in the motion of the defendant to dismiss were true the plaintiffs were not entitled to maintain their suit, or to recover judgment, without having complied with the provisions of the act of 1901. The court sustained the objection to the introduction of any evidence under the motion, for the reason that this suit was commenced in the year 1896, before the passage of that act, or of the act of 1898, of which it is amendatory. It must be borne in mind that this was not an action to enforce a contract, but a suit sounding in tort. The design or effect of allowing the motion in question until the plaintiffs should have complied with the provisions of our statute relating to foreign corporations was not to impair the obligation of a contract. The act regulates the mode of procedure and protects the citizens of the state. The plaintiffs were not in a position to claim that they had a vested right to recover without having complied with the conditions imposed by the laws of the state, merely because they had commenced this suit before the enactment of the statute. The statute is not retroactive, as it applies to this case ; it is prospective, and simply imposes upon such corporations proper regulations, in the interests of the citizens of the state, which they must observe before they will be allowed to maintain, and recover in, an action in this state. The court should hear the evidence, and, if the facts alleged in the motion be sustained by the evidence, it should give them a reasonable time in which to comply with the statute. Upon their refusal so to do it should dismiss the suit.
Plaintiffs in error complain of an alleged failure, or. refusal, of the court to state its findings of fact and conclusions of law separately, as required by section 290 of the code of civil procedure (Gen. Stat. 1901 § 4737). This request was made in a particular manner by the defendants below, and fourteen special questions were submitted. It is not necessary, or customary, for a party to a suit to submit questions of fact when the trial is to the court without a jury, as it is especially required where the trial is to a jury, and special findings of fact are desired. It is the usual and proper practice simply to make the request of the court to make such separate findings of fact and conclusions of law upon all material points involved in the case, which request should be granted. The findings should be announced to counsel, and an opportunity given them to ask further findings upon any material facts.
In this case, in response to the request of counsel, the court filed nearly fourteen pages of closely typewritten matter, which was, perhaps, intended to be findings of fact. It is interlarded with arguments and statements not justified by the evidence; in fact, in one instance the court intimated that his finding was based on hearing the evidence on three former trials, as well as on the present trial. The facts recited could have been presented much better in one-fourth of the space. Although so lengthy, this document did not decide all of the facts material to the case, and justified by the evidence. Following these fourteen pages are more than two pages of conclusions from the evidence. Whether they are conclusions of law, or fact, it is hard to determine, for they include both, as well as much argument. After the court had rendered these alleged findings of fact and conclusions of law the defendants filed a motion objecting to them, and asking the court to modify or change them, or prepare and file others, which motion was denied, and the defendants excepted. The object of granting this right to a party is that he may except to the decision of the court upon questions of law, and may know the facts upon which the court bases its conclusions of law.
It is the proper practice for a trial court, in case it apprehends that its decision may be misunderstood, or from mere choice, to prepare and file a written opinion in the case, and in this opinion it may give the reasons for its findings of fact, and its reasons and authorities for its conclusions of law ; but this opinion and these arguments should not be so mingled with the conclusions of law and findings of fact as to make all indistinguishable. For instance, the question whether Vickers and wife had a homestead of 160 acres exempt to them when they transferred the lands to Mixon was involved in this case. The findings of fact should have first determined whether Vickers and family ever occupied the land in question as a homestead ; if so, the next question would have been whether they vacated or ceased to occupy the land as a homestead before the conveyance ; third, if they did remove from the land claimed as a homestead before the conveyance, whether they had abandoned it as a homestead before the conveyance. The conclusion of law should have decided whether Vickers was entitled to a homestead right upon the land at the time in question. Instead of these brief findings over a page of typewritten matter, principally argument, was devoted to this question, and there was no finding whether Vickers and family ever occupied the land as a homestead, or whether they had abandoned it if they had a homestead thereon prior to the conveyance. There was a fairly stated conclusion that Vickers was not entitled to any claim of homestead or any portion of the 840 acres of land at the time of the transfer, but this conclusion was not separately stated.
It is with reluctance that we reverse this case and send it back for trial the third time. We are not prepared to say that the trial court did not arrive at the right conclusions. It seems to have devoted great labor to the trial, and apparently with overanxiety to be right, and to do justice to all parties ; yet it practically denied to the defendants a plain statutory right to have the findings of fact and conclusions of law separately stated.
The judgment is reversed.
All the Justices concurring. | [
-80,
106,
-16,
28,
72,
-32,
32,
-101,
117,
-95,
39,
115,
-83,
-46,
4,
63,
99,
61,
113,
106,
70,
-77,
7,
51,
-42,
-77,
-45,
-35,
-75,
79,
117,
-42,
76,
48,
-126,
-43,
70,
-62,
65,
28,
-114,
4,
8,
-52,
-15,
44,
48,
107,
18,
65,
113,
-20,
-13,
43,
29,
-57,
-23,
40,
-21,
-67,
-15,
-8,
-102,
-59,
125,
0,
33,
21,
-98,
5,
88,
44,
-104,
17,
41,
-88,
83,
-74,
-122,
116,
97,
-103,
40,
106,
99,
97,
81,
-17,
-8,
-68,
38,
63,
-113,
-89,
-108,
64,
75,
13,
-74,
-103,
116,
22,
7,
-2,
-18,
20,
-99,
-84,
3,
-53,
-16,
-73,
15,
44,
-104,
3,
-13,
-93,
-76,
113,
-57,
-24,
92,
71,
120,
-101,
-50,
-36
]
|
The opinion of the court was delivered by
Greene, J.:
Cleo D. Burnette appeals from a judgment of the district court of Sumner county disbarring him from the practice of his profession as an attorney and counselor at law. The proceeding was instituted by an accusation verified upon information and belief and filed in the office of the clerk of the district court. An order was entered that a copy of the accusation be served on the accused, and that he appear and make answer thereto on the first day of the next succeeding term. The court appointed J. A. Burnette, J. S. Dey, and W. W. Schwinn, attorneys of the Sumner county bar, to prosecute the proceeding. Burnette failed to appear or answer. Without further evidence than that furnished by the verified accusation the court rendered judgment disbarring Burnette from the practice of his profession. Within three days thereafter, and at the same term, he appeared and asked the court to set aside the judgment and to permit him to answer, alleging as grounds therefor, among other things : (1) That the judgment was rendered against him on an accusation not made under oath; (2) that such judgment was rendered without any testimony’s having been introduced on the hearing in support of the accusation. The application was overruled, and Burnette appeals.
The two questions presented for our determination are : (1) Did the accusation, verified upon information and belief, give the court jurisdiction to,inquire into the charges alleged against Burnette ? (2) Is a judgment of disbarment rendered without any evidence to support the charges other than an accusation verified upon information and belief authorized by law ? Section 399 of the General Statutes of 1901 reads as follows :
“The proceeding to remove or suspend an attorney-may be commenced by the direction of the court, or on motion of any person interested. In the former case, the court must direct some attorney to draw up the accusation; in the latter, the accusation must be drawn up and sworn to by the person making it.”
Under the provisions of this section the court may, on its own motion, direct a lawyer to draw up the accusation, and such accusation need not be verified. This section also provides that an investigation into the conduct of an. attorney may be instituted on the motion of any person interested, but such accusation must be sworn to by the person making it. These provisions are only preliminary, and are intended merely to arrest the attention of the court. Section 400 of the General Statutes of 1901 reads :
“If the court deem the accusation sufficient to justify further action, it shall cause an order to be entered requiring the accused to appear and answer, on a day therein fixed, either at the same' or subsequent term, and shall cause a copy of the accusation and order to be served upon him personally.”
If the court deem the accusation sufficient to justify further action it shall then take such steps as are pointed out in this section. The sufficiency and formality of the accusation are examined and passed on by the court before an order is made. The verification is not jurisdictional, and an entire absence of any verification would not render a judgment, based on a proceeding otherwise regular, void or voidable. The court had jurisdiction. This contention cannot be sustained.
In opposition to the second contention of the appellant it is argued that the written accusation is a pleading, and answers to a petition in a civil action ; that under section 128 of the civil code (Gen. Stat. 1901, § 4562 ), which provides that every material allegation in the petition not controverted by the answer shall, for the purpose of the action, be taken as true, the court was justified in rendering a judgment as upon default. To this proposition we cannot give our assent. A proceeding to disbar an attorney is mi generis — the statutory rule of evidence provided in section 128 of the code has no application. In support of the procedure had in this case, the appellee quotes section 402, General Statutes of 1901, which reads :
“If the accused plead guilty, or fail to answer, the court shall proceed to render such judgment as the case requires.”
It is contended that, in the absence of an answer, this section authorizes the court to accept the verified accusation as evidence of the facts charged therein, and render judgment. The provision of this section, which directs the court, in the absence of an answer, to render such judgment as the case requires does not authorize the court to proceed without evidence to render judgment as upon default in civil actions. Its provisions contemplate the regular and orderly procedure to hear, weigh and determine the-evidence, and render such judgment as the case requires.
One of the charges made against the appellant is-that he was guilty of wilful and deliberate perjury. Before a court should find one guilty of so serious an offense it should be satisfied of the truthfulness of the charge by positive and direct evidence, given under the solemnity of an oath. This rule seems to have been generally adopted, and is well sustained by ad judicated cases. In State v. Shumate, 48 W. Va. 359, 37 S. E. 618, in a disbarment proceeding, the court said: “To disbar an attorney, the evidence of the charges against him must be full, preponderating, and clear.” In the case of In re Simpson, 9 N. Dak. 379, 83 N. W. 541, it was said :
“In disbarment proceedings, the contents of affidavits which have been filed as a basis for commencing such proceedings cannot be considered as evidence in support of the accusations upon the trial of the issues of fact. The accused has a right to be tried upon the evidence of witnesses who have been cross-examined or an opportunity given to do so.”
In People, etc., v. Pendleton, 17 Colo. 544, 30 Pac. 1041, the court used the following forceful language :
“A judgment of disbarment should be pronounced only upon clear and convincing evidence, and this rule is preeminently appropriate where, as in this case, the offense charged is cognizable by the criminal code.”
In the case of In the Matter of Eldridge, 82 N. Y. 161, 37 Am. Rep. 558, it was said:
“Where the alleged misconduct is denied, the affidavits and papers upon which the proceedings were instituted are not evidence upon the issues, but simply perform the office of pleadings or statements of the charges relied upon. Affidavits are sufficient to originate the proceedings, but upon the trial of the issues the common-law rules of evidence must be observed.”
Again, in In re O —, 73 Wis. 602, 42 N. W. 221, the court said :
“Even where the charges of professional misconduct upon which an attorney is disbarred are not of a criminal nature, they should be established by a preponderance of satisfactory evidence.”
In the above-cited cases the accused appeared and denied the accusations, but this of itself could not change the rule. The duty rests upon the court to hear and weigh the evidence before determining that an attorney is guilty of a crime for which he should be disbarred. The court must be convinced of the truthfulness of the charge, and, where the offense was not committed in its presence, the only way it can become convinced is by hearing and weighing the evidence tending to establish the fact.
We think that the court has no authority, in the absence of any evidence, and solely upon the accusation sworn to upon information'and belief, to find the appellant guilty and to render a judgment disbarring him.
The judgment is reversed, and the cause remanded with instructions to set aside the judgment and to proceed with the hearing.
Johnston, C. J., Smith, J., concurring. | [
-76,
-20,
-83,
-115,
42,
-32,
50,
-70,
89,
-109,
-27,
115,
-23,
-54,
4,
95,
-6,
111,
85,
105,
-59,
-74,
50,
69,
114,
-109,
-39,
-41,
-75,
-33,
-25,
-33,
72,
48,
-54,
-43,
70,
74,
-121,
84,
-126,
3,
-119,
-2,
90,
9,
48,
51,
22,
7,
101,
62,
-45,
106,
29,
-61,
-88,
44,
-53,
-67,
51,
-79,
-114,
-99,
125,
0,
51,
39,
-120,
3,
120,
46,
-108,
49,
-127,
-8,
115,
-106,
2,
84,
77,
-71,
8,
118,
99,
33,
105,
-25,
-68,
-120,
14,
62,
-99,
-90,
-8,
1,
73,
-119,
-74,
-103,
116,
16,
7,
-12,
-30,
-51,
28,
76,
11,
-49,
-48,
-77,
-101,
116,
-102,
23,
-5,
-89,
16,
69,
-49,
-30,
93,
70,
89,
-37,
-106,
52
]
|
The opinion of the court was delivered by
Johnston, C. J.:
William Martindale instituted an action against R. T. Battey, Calvin Hood, and Isaac E. Lambert, and he also named as defendants Elizabeth Holderman and others of his creditors, askiDg that they be ordered to set up whatever claims they had in the premises. In his final amended petition he alleges that he was owing a number of persons $170,000, and to secure the payment of the indebtedness he agreed with his creditors to transfer his real estate and other property to a trustee, to be named by Judge William C. Hook — such trustee to convert the property into money and apply the same to the payment of the debts of Martindale. R. T. Battey was appointed trustee in accordance with the agreement. He accepted the trust, and gave a bond for the faithful performance of his duty, after which Martindale and his wife conveyed to him property, largely lands, of the value of $144,500.
It is alleged that Lambert was an attorney of Battey, and should have aided him in the faithful execution of the trust; that he was also an attorney of the receiver of the First National Bank of Emporia, one of the creditors of Martindale, and that Battey and Lambert, instead of honestly and faithfully endeavoring to sell the property for the highest and best price that could be obtained therefor, so that all the creditors of Martindale might be paid and all his debts discharged, conspired- with Calvin Hood to sell the property to the latter for a grossly inadequate price,
To carry out the fraudulent purpose they arranged it so as to prevent competition, in this, that notice of the sale was printed in an Emporia newspaper only ; that all the property, real and personal, was to be sold in bulk, without fixing a minimum price, although the real estate was composed of several different tracts, located in several counties of Kansas and Colorado, and when they well knew that better prices would be obtained if the tracts should be sold separately, and the personal property sold separately from the real. It is averred that abstracts of title were not seasonably furnished ; that those furnished were incomplete and defective, and that only three days were given for the examination of a large number of abstracts, when a much longer time was needed. Conditions were imposed, information withheld, and obstructions placed, so that an intelligent and safe bid could not be made, and this was done by Battey and Lambert for the purpose of deterring bidders and to enable Hood to acquire the property at much less than its value. There were bidder’s, whose names were given, who desired to purchase, and would have purchased, the property at a fair price, if Battey and Lambert had given the proper information and opportunity, as it was their duty to do.
It is further alleged that a proceeding brought in the federal court by Ford Harvey, a creditor, against the trustee was used to effectuate the fraudulent purpose mentioned. An order of that court enjoining the sale was obtained, and it is averred that, during its pendency, Lambert procured an assignment of Ford Harvey’s claim to Calvin Hood, keeping all knowledge of the transfer from the court and from the other parties, and providing that a decree should be entered as if Harvey was still the owner. By misrepresentation and duplicity, a number of creditors were induced to come in and stipulate that a sale of the property might be made under the direction of that court, and that an offer by Hood of $41,000 for the property was the best that could be had. This offer the court was asked to approve, and did so. In pursuance of the order of the court and sale, a deed was made by Battey to Hood, conveying the entire property for the small sum of $41,000. The court, it is alleged, was deceived, and the order obtained by false representations, which are elaborated in the petition ; and, more effectually to carry out the plan and defraud the plaintiff and his creditors, it is alleged that Hood at once sold and conveyed most of the real estate to innocent purchasers. The property so sold for $41,000 was worth more than $140,000, and this was well known to Battey, Lambert, and Hood.
If the trustee had faithfully administered his trust, and had not collusively and fraudulently sold the property to Hood, enough would have been realized to satisfy all the creditors of Martindale. The prayer of the petition is that the proceedings and orders of the federal court be declared collusive and fraudulent as against the rights of Martindale and his creditors not participating in the proceedings, and asking a judgment against R. T. Battey, Isaac E. Lambert, and Calvin Hood ; that they duly account to him for the full market value of all the property sold, conveyed and converted by them, or either of them, to innocent holders and purchasers thereof, and that upon said accounting this plaintiff have judgment against Battey, Lambert and Hood for the sum of $90,000.
The foregoing is but a brief statement of the material facts contained in the petition. In substance the averments of the petition in Holderman v. Hood, im mediately preceding (78 Pac. 838), are the same as those pleaded here, and a full statement of the facts in the transactions, including the important documents and exhibits, may there be found. In their cross-petitions filed herein the creditors named as defendants came in and set up substantially the same facts that were pleaded by Martindale, and asked to share in the judgment that'might be rendered. Battey, Hood and Lambert each separately demurred to the petition, and also to the cross-petitions, upon several grounds, including the one that several causes of action were improperly joined, and another, that the facts are insufficient to constitute a cause of action. The demurrers were sustained, and from these rulings error is assigned.
Is there a misjoinder of causes of action? In its main features, including the prayer, it is clear that as to two of the defendants an action for an equitable accounting of the trust funds wrongfully diverted and misappropriated is pleaded. Battey is, of course, liable as trustee to account for and pay over to those beneficially interested, not only the proceeds of the sale made to Hood, but all that he should have received from a bona fide sale of the trust estate after an honest, diligent effort to obtain its full value. A court of equity may enforce the trust against all those who come into the possession of the estate, or the proceeds of it, with notice of the trust. Every one who wrongfully obtains any part of the trust funds may be required to account to the beneficiaries to the extent of the amount which .each received. Battey had possession of all the estate, and, of course, can be required to account for all disposed of in violation of his trust. Hood, who, it is alleged, connived with Battey, and Came into possession of the greater part of the estate, is treated in equity as a trustee, and can be required to account for the part he received ; that is, the difference between what he paid for the property and the amount for which it should have been sold. If Lambert had purchased or acquired any of the property or funds through the faithless trustee, equity would regard him as a trustee also, and he might have been required to account and pay the amount which he received in consequence of the breach of trust.
There is nothing in the petition, however, to show that Lambert purchased any of the lands or came into the possession of any of the trust funds belonging to the estate. Having none of the property and funds he has nothing for which he can be required to account, and, therefore, the cause of action to account equitably, which is good as to the other parties, is insufficient as to him.
A cause of action of another character, however, was alleged against Lambert. The wrongs alleged to have been committed by him are sufficient to constitute a cause of action sounding in tort, for which he is liable in damages to the extent of the injury inflicted. As already held in Holderman v. Hood, supra, an action in tort may be maintained against those who fraudulent unite with and aid a trustee to sell trust property for less than its value, and the injured beneficiary may recover from each tort-feasor the entire damages sustained. The objection to a recovery against these parties, including Lambert, for the wrongs alleged, was considered in Holderman v. Hood, supra, and found to be without force. The action against Battey and Hood, as we have seen, is distinctly one for an equitable accounting, but such a cause of action is not alleged against Lambert. However, he is made a party, and a good cause of action, not in equity, but in law, for damages, is stated against him, for which a recovery is asked. These causes of action cannot be united. One is in equity, for an accounting, and the other an action at law, for damages. In one, two defendants are treated as trustees, and, in the other, the third defendant is treated as a tortfeasor. In one, the recovery sought is that each defendant account for so much of the trust fund as he obtained and holds in violation of the trust; and the other is for the full amount of the damages inflicted by the wrong-doing of a defendant, without regard to whether he received, or holds, any of the trust funds. In the equitable accounting, the determination would be by the court without a jury; and in the action for damages, Lambert would be entitled to a jury trial as a matter of right. Thus it appears that in their nature the two causes of action are entirely unlike, and the measure of liability in each, and also the methods of trial, are different. Although arising largely out of the same acts and wrongs, the remedies are distinct, and, as seen, each does not affect all of the defendants.
The code classifies the causes of action, specifying particular claims under each class which may be united in the petition, but it provides specifically that “the causes of action so united must all belong to' one of these classes, and must affect all the parties to the action, except in actions to enforce mortgages or other liens.” (Civil Code, §83; Gen. Stat. 1901, §4517; Hoye v. Raymond, 25 Kan. 665; Lindh v. Crowley, 26 id. 47.) Even if the causes of action united in this petition were not in their nature incongruous, the fact that each does not affect all of the defendants would x’ender the petition demurrable for misjoinder of caxxses of action. The causes of action included in the petition were not separately stated,.it is true, but the fact that they were blended and commingled in' one statement does not cure the defect of the misjoinder, nor prevent the operation of the demurrer. (Haskell County Bank v. Bank of Santa Fe, 51 Kan. 39, 32 Pac. 624; A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 id. 617, 33 Pac. 312; Goldberg v. Utley, 60 N. Y. 427; Wiles v. Suydam, 64 id. 173; Wright v. Connor, 34 Iowa, 240.) In Hentig v. Benevolent Association, 45 Kan. 462, 25 Pac. 878, it was said that “it is one of the prerequisites to the uniting of different causes of action that all the causes of action must affect all the parties to the action.” In Rizer v. Comm’rs of Davis Co , 48 Kan. 389, 29 Pac. 595, it was held that a cause of action for an accounting against certain defendants could not be joined with a cause of action against other defendants for the wrongful conversion of trust property..
As tending to sustain the view that there was a misjoinder of causes of action, and that the demurrer was rightly sustained, we cite Haskell County Bank v. Bank of Santa Fe, supra; A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., supra; Gardner v. Ogden, 22 N. Y. 327, 78 Am. Dec. 192; Stanton v. Missouri Pac. Ry. Co., 2 N. Y. Supp. 298; Hess v. Buffalo & Niagara Falls R. R. Co., 29 Barb. 391; Nichols v. Drew, 94 N. Y. 22; Compton v. Hughes, 38 Hun, 377; Bennett v. Merritt, 6 Jones Eq. (59 N. C.) 263; N. C. Land Co. v. Beatty and another, 69 N. C. 329; Jasper v. Hazen, 2 N. Dak. 40, 51 N. W. 583; Holton v. Wallace, 66 Fed. (C. C.) 409; Security Savings & Loan Ass’n v. Buchanan, 66 id. 799, 14 C. C. A. 97; Mayo v. Madden, 4 Cal. 27; Lathrop v. Bampton, 31 id. 17, 89 Am. Dec. 141; Bliss, Code Plead. §§ 123, 412; Pom. Code Rem. § 479; Bry. Code Plead. §§ 167, 168.
It is said that the purpose of the demurrer for misjoinder is to compel the plaintiff to elect upon which of the two or more causes of action improperly united he will proceed. (1 Kink. Code Plead. §101.) The code provides that when a demurrer is sustained on the ground of a misjoinder of causes of action the court, upon application, shall allow the plaintiff to file several petitions and proceed without further service. (Civil Code, §92; Gen. Stat. 1901, §4526.) In this case no such application was made. We think the demurrer was rightly sustained, and, therefore, the judgment of the district court is affirmed.
All the Justices concurring.
Cunningham, J., not sitting. | [
-16,
108,
-40,
-98,
26,
-28,
46,
-102,
27,
-31,
-74,
83,
-23,
-118,
5,
45,
-30,
45,
-43,
120,
-26,
-73,
15,
-29,
-46,
-77,
-39,
-51,
48,
-39,
-28,
-41,
72,
16,
74,
-99,
-122,
-62,
-61,
28,
-114,
5,
41,
-28,
-39,
0,
48,
-69,
6,
74,
81,
-66,
-13,
42,
25,
-21,
73,
44,
107,
-71,
81,
-79,
-85,
-57,
127,
23,
1,
64,
-104,
3,
72,
-82,
-8,
52,
9,
-24,
83,
-74,
6,
116,
5,
9,
12,
54,
98,
1,
-11,
-23,
-72,
-104,
46,
-9,
-123,
-89,
-110,
88,
34,
104,
-98,
-103,
124,
20,
7,
-4,
-25,
-123,
20,
108,
5,
-113,
-106,
-125,
14,
124,
-98,
27,
-45,
-93,
49,
80,
-58,
-30,
92,
67,
122,
27,
-114,
-16
]
|
The opinion of the court was delivered by
Johnston, C. J. :
C. F. Richards brought an action against J. E. Boyd and L. J. Newstifter to recover $102 on a promissory note. It had been given to J. P. Sherr, who, some time after maturity, transferred it to Richards. On the back of the note payments had been indorsed, and there was also a statement that “this note is by permission of surety extended twelve months. A. C. S.” In his answer Newstifter alleged that he signed the note as surety only ; that he had never received any of the consideration or benefits of the note, and that after the note became due, Sherr, the then holder and owner, extended the time of payment of it for a year without his knowledge or consent and without any consideration from him.
There was testimony that the note was turned over to one A. C. Smith for collection ; that Smith was the agent of Sherr, and that for an advance payment of interest the time of payment was extended by him without the consent of the surety. This was contradicted by the plaintiff's testimony, and therefore the authority of Smith to represent Sherr "in receiving payments and in granting an extension of the time of payment became a material question in the case. In an effort to show the agency of Smith some of his declarations and acts were received in evidence over the objection of the plaintiff. Later the court struck out the declarations but declined to strike out the testimony of the acts of Smith or of the transactions which occurred between him and Boyd, the maker of the note.
It is contended that the acts, as well as the declarations of the agent, were incompetent, and that both should have been excluded. It is well settled in this state that agency cannot be proved by the mere acts and declarations of the one assuming to act in that capacity. In Streeter v. Poor, 4 Kan. 412, it was said :
“Neither the declarations nor acts of a man can be given in evidence to prove that he is the agent of an other; where agency is a question at issue, it should be proved by other testimony.”
The same question was before the court in Leu v. Mayer, 52 Kan. 419, 34 Pac. 969, where it was remarked :
“While the acts of the principal will sometimes estop him from denying the authority of an agent who oversteps the limitations imposed upon him, it is clear that the agency or authority cannot be proven by the unauthorized or unaccepted conduct of the alleged agent. In numerous cases it has been held that the fact of agency cannot be established by the declarations of the alleged agent, and testimony of his acts or conduct is of no greater value for that purpose. It has been said that the rule of law bearing on this question is, that neither the declarations of a man nor his acts can be given in evidence to prove that he is the agent of another.”
Testimony of the acts of the agent may, of course, be admissible for other purposes after agency has been established, or the acts may be shown in connection with proof of a ratification of such acts by the principal ; but the court seems to have tried the case upon the theory that agency may be proved by testimony of the mere acts of the one assuming to act as agent. The court not only refused to strike out the testimony of the acts of Smith, but it gave the jury the unqualified charge that “agency may be shown and proved by the acts of the agent (not by his declarations), and it may also be shown by the declarations of the principal.” For this error the judgment is reversed and a new trial awarded.
All the Justices concurring. | [
50,
-24,
-32,
-97,
10,
96,
42,
-102,
-45,
-95,
-89,
115,
-23,
-58,
4,
49,
-9,
41,
-15,
104,
-58,
-77,
38,
123,
-14,
-13,
-7,
-35,
-80,
125,
-68,
92,
76,
48,
-54,
-107,
102,
-54,
-127,
26,
-50,
-123,
40,
-20,
-7,
80,
48,
61,
20,
75,
117,
-34,
-13,
42,
29,
87,
109,
40,
-21,
-87,
-48,
-15,
-98,
-123,
125,
20,
51,
100,
-104,
69,
-56,
46,
-128,
55,
1,
-8,
114,
-74,
6,
-12,
109,
25,
24,
98,
98,
48,
85,
-17,
-68,
-100,
46,
-74,
-115,
-90,
-14,
73,
35,
45,
-66,
-99,
53,
16,
6,
-4,
-9,
29,
21,
44,
5,
-113,
-42,
-94,
31,
60,
-120,
11,
-41,
3,
49,
80,
-49,
-96,
93,
101,
123,
27,
-114,
-48
]
|
The opinion of the court was delivered by
Cunningham, J. :
There is some question between counsel as to the nature of this case, the plaintiff in error claiming that it is one to revive a dormant judgment ; the defendant in error, that it is an action upon a dormant judgment.
The judgment was rendered May 19, 1879. It was properly kept alive by the issuance of executions until December 10, 1888, on which date an execution was issued. The next execution was issued December 13, 1893; the next February 10, 1899. This action was commenced December 4, 1899, which, as will be noted , is nine days less than six years after the issuance of the execution on December 13, 1893. We shall assume, without deciding, that this is a proceeding to revive a dormant judgment, and that it was commenced in time, providing there was a living judg mentón the 18th of December, 1893. If the execution issued on that date had no living judgment upon which to rest, it could not receive vitality from such judgment, or its issuance impart vitality thereto. Section 4895 of the General Statutes of 1901, being section 445 of the code of civil procedure, provides :
“If execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant and shall cease to operate as a lien on the. estate of the judgment debtor.”
It will be noted that the execution of December 13, 1893, was issued three days after the expiration of five years from the date of the execution which last preceded; hence, under the terms of this section, the judgment had then become dormant.
A dormant judgment is one without generative vitality. That it may have efficiency it must be awakened, revivified. A dormant judgment does not authorize the issuance of an execution ; “all proceedings upon the judgment while it is dormant are void.” (The State v. McArthur, 5 Kan. 280, 283; Ballinger v. Redhead, 1 Kan. App. 434, 40 Pac. 828; Dempsey v. Township of Oswego, 51 Fed. 97, 2 C. C. A. 110.)
If the judgment was dormant on December 13,1893, it would neither sustain the execution issued on that date nor be revived by the issuance of such execution, as the statute specifically points out how dormant judgments may be revived, and these methods are exclusive.
Plaintiff in error, however, contends that the judgment was not dormant on December 13, 1893, and this because of the fact that from March 14, 1891, to July 8, 1891, there was pending in the probate court proceedings under the statute in aid of execution upon this judgment, and that these proceedings served during that time to suspend the running of the limitation found in the section heretofore quoted. We cannot approve of this claim ; no authority therefor is found in the statute. The language of the statute admits of no such exception. What the effect of a suspensive proceeding might be to stay the running of the time indicated in the statute it is here unnecessary to decide, for clearly this proceeding in aid of execution had no suspensive effect; it was simply an auxiliary one ; the judgment remained in the district court, and an execution could have been issued, and even levied, at any time during the pendency of these ancillary proceedings.
The judgment having become dormant five years after December 10, 1888, the proceedings to revive could only have been brought within one year thereafter, and hence, the proceeding here under consideration not having been commenced within that period, it was unauthorized, and the judgment of the district court denying relief to the plaintiff is affirmed.
All the Justices concurring. | [
-46,
110,
-43,
-66,
10,
96,
34,
-102,
81,
-64,
-76,
115,
-119,
-62,
68,
105,
93,
105,
112,
104,
78,
-77,
55,
105,
26,
-13,
-63,
-107,
49,
125,
-12,
-58,
12,
48,
74,
-11,
-26,
-86,
65,
82,
-118,
-81,
-103,
108,
-39,
64,
48,
57,
80,
-114,
113,
106,
-29,
43,
25,
107,
105,
40,
75,
-83,
-47,
-72,
-82,
-123,
111,
22,
-125,
4,
-104,
-126,
88,
14,
-100,
29,
0,
-8,
112,
-106,
-58,
-12,
45,
-87,
44,
102,
34,
0,
69,
-17,
-72,
-104,
31,
54,
-99,
-89,
-102,
88,
-21,
77,
-106,
-35,
52,
20,
-90,
-18,
-26,
-105,
-103,
-20,
9,
-118,
-10,
-79,
-33,
124,
-70,
65,
-57,
-89,
50,
85,
-116,
104,
92,
119,
120,
27,
-98,
-112
]
|
The opinion of the court was delivered by
Cunningham, J. :
This was an action in the district court of Lyon county to contest the verbal will of J. Hardin Baird, which had been admitted to probate in that county. The issues were tried by the judge, who announced his findings of fact and conclusions of law as follow:
“FINDINGS OF FACT.
“1. That prior to March 1, 1903, J. Hardin Baird, a resident of Lyon county, Kansas, and an unmarried-man, became sick of nervous prostration at his home in Emporia, Lyon county, Kansas, and was afterward taken to the residence of T. L. McDill, in said Emporia, Lyon county, Kansas, which sickness continued through intermittent stages of better and worse until his death at the place last mentioned on the 16th day of April, 1903. That deceased expected the approach of death at any time during his illness, and was liable to die at any time ; that there was no reasonable apprehension nor did the deceased apprehend death was to immediately follow his act in making the alleged verbal will hereinafter mentioned.
“2. That on the 31st day of March, 1903, at the place aforesaid, Dr. Charles Gardiner, one of his attending physicians, in the presence of said J. Hardin Baird, read a written memorandum to him, of which the following is substantially a copy: ‘I, J. Hardin Baird, do make known that it is my desire and will, when the proper time comes, that the following-named persons shall have out of my estate the amounts hereinafter mentioned: (1) To Mrs. Mary Baird Huntsinger, of Pinckneyville, 111., twelve thousand dollars and the silver and china left by Emma Baird, and the right to choose any and every thing in the way of household goods in the room in the second story of the business house on Sixth avenue and Merchants street, Emporia, Kan.; (2) to T. L. McDill, of Emporia, Kan., the sum of ten thousand dollars ; (3) to Porter Baird, of Perry county, Illinois, the sum of ten thousand dollars and my watch; (4) to Ida Wallace, of Perry county, Illinois, seven thousand dollars and Emma Baird’s watch; (5) to Mrs. Mary Baird Huntsinger’s youngest brother, the watch of James Baird, deceased, and seven thousand dollars; (6) to Mrs. Martha Dickey, of Coulterville, 111., the nine hundred dollars loaned to her on mortgage ; (7) to Hardin Baird McDill, son of T. L. McDill, twenty-five dollars. And that Howard Dunlap, of Emporia, be my executor.’
“3. That the said memorandum was read item by item by said Doctor Gardiner to said J. Hardin Baird, and said J. Hardin Baird assented to each item by nodding his head in assent thereto. The deceased was not able to sign paper with a pen because of the partial paralysis of his arms.
“4. That at the time there were several persons present and heard the reading of such memorandum and witnessed the assent of J. Hardin Baird thereto. That among those persons under the circumstances stated were Charles Gardiner, J J. Wright, Mrs. Mary A. Roberts, Howard Dunlap, Mrs. T. L. McDill, and W. T. McCarty, an attorney at law.
“5. That after the same was read by said Doctor Gardiner and its provisions approved by said J. Hardin Baird, said J. Hardin Baird uttered audibly in the hearing of said persons the following words concerning said memorandum and its provisions, addressed to said persons, each and all: ‘I want you to see that it is carried out the way I want it to be.’
“6. That the said memorandum had been theretofore prepared by the deceased himself and handed to said Doctor Gardiner ; that the same was not signed by the deceased, nor did he request any person to sign the same for him, nor was the same subscribed by any person as a witness.
“7. That the formed purpose of the deceased was to make a verbal and not a written will, and he believed the memorandum unsigned was sufficient to carry out his purpose.
“8. That within ten days after the said 31st day of March, 1903, the words substantially contained in said memorandum were reduced to writing and subscribed by two competent, disinterested witnesses, to wit, Dr. Charles Gardiner and Mrs. Mary A. Roberts, and the same was after the death of the deceased admitted to probate by the probate court of Lyon county, Kansas, as the verbal will and testament of the said J. Hardin Baird.
“9. That at the time said memorandum was read to said J. Hardin Baird he was of sound mind and disposing memory and was under no restraint or undue influence, and continued so until the time of his death.
“10. That the relationship and kinship of the parties hereto to said J. Hardin Baird is as alleged in the petition of the plaintiffs herein, which is hereby adopted and made a part of this finding.
“ 11. That Mrs. Mary Baird Huntsinger, nominated in the alleged verbal will, is a first cousin to the deceased ; that T. L. McDill is a second cousin ; that Porter Baird is a first cousin; that Ida Wallace is a first cousin ; that Mrs. Martha Dickey is a first cousin ; that the youngest brother of Mrs. Mary Baird Hunt-singer is a first cousin; that Hardin Baird McDill, son of T. L. McDill, is a third cousin.
“conclusions op law.
“1. That the memorandum and alleged testamentary words contained therein read to the deceased and assented to by him are not a written will, because not signed by him, and not signed by any person for him at his express direction, and because not attested by two witnesses.
“2. That the said memorandum and alleged testamentary words contained therein are not a verbal will, for the following reason : That at the time of the uttering of the same the deceased was not in his last sickness, within the meaning of the law. Last sickness, within the meaning of the law’s technical definition, means that the party must be in extremis or in articulo mortis. The deceased was not at the time prevented by surprise of sudden death from executing a written will, and could have done so up to the date of his death.
“3. That the words spoken by the deceased do not show that he called upon some person present at the time of the assent to the memorandum to bear testimony of his disposition therein.
“4. That the heirs-at-law of the deceased, as set out in the petition of the plaintiffs, are entitled to inherit his property and are entitled to recover in this suit.
“5. That said alleged verbal will is void and of no effect in law.”
There was little contradiction in the evidence, and these findings of fact might well be somewhat amplified in this statement by saying that it further appears that Mr. Baird before, at, and after, the time of the nuncupation was thoroughly impressed with the idea that his death was near at hand, as he had settled up his business and made arrangements about his funeral and burial, and had given directions as to gravestones. He had also frequently conversed with his spiritual adviser and others as to his preparation for death and his condition after death. His physical condition was such as to make him almost helpless during this time and to render his death a probable and expected event to himself, his friends, and his medical attendants.
These questions arise upon these facts : (1) What is the meaning of the term “last sickness” in the statute permitting the making of verbal wills ? (2) Should it receive such a. construction as will cover the present case, or should it have the narrower meaning given by the court below? (3) Were the words used by the deceased at the time of the making of the will sufficient under the statute to call the attention of those present to bear testimony to the disposition which he was making of his property as his will ?
These questions were decided by the court below adversely to the contention of the plaintiffs in error, who were the beneficiaries under the will, the court holding the verbal will void because it was not made “in the last sickness” and because the attention of the witnesses was not challenged by a sufficient rogatio testium. They are now here seeking to reverse this ruling.
The language of the statute involved (Wills Act, § 69, Gen. Stat. 1901, § 8007 ) reads as follows :
“A verbal will made in the last sickness shall be valid in respect to personal estate, if reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words, and if it be proved by said witnesses that the testator was of sound mind and memory and not under any restraint, and called upon some person present at the time the testamentary words were spoken to bear testimony to said deposition as his will.”
Addressing ourselves to the first question, we call attention explicitly to the condition of the deceased at the time of the alleged nuncupation, as shown by the findings and facts : (1) He was in his last sickness— that is, he died seventeen days thereafter, of the disease with which he was at the time afflicted ; (2) at that time he expected his death to occur at any time and had no hope of recovery; (3) the will was made in view of this expected death and as a provision therefor; (4) he was at the time weak physically, unable to sign his own name, and was liable to die at any time, although immediate death was not apprehended by him,-and it did not immediately follow. Do these facts constitute “last sickness,” within the meaning of the statute, or is the court’s definition of that term, as found in its second conclusion of law, correct? That is, must the party be in extremis or in articulo mortis, and must the deceased be prevented by surprise of sudden death from executing a written will, in order to execute a valid verbal one?
The first and most influential case upon this question is that of Prince v. Hazelton, 20 Johnson (N. Y.), 502, 11 Am. Dec. 307. This was a case decided by Chancellor Kent in 1822, who, after having disposed of the case upon its merits, by holding that the will in question was not entitled to probate because it was the production of fraud and perjury, went on to discuss the question here involved as to the meaning of the term “last sickness,” and therefrom deduced the rule “that a nuncupative will is not good unless it is made by a testator when he is in extremis, or overtaken by sudden and violent sickness and has not time or opportunity to make a written will.” Chief Justice Spencer, Justice Platt and a majority of the senators concurred. Dissenting therefrom were Justice Wood-worth and a minority of the senators.
This construction has been followed by the supreme courts of Virginia, Pennsylvania, Maryland, Georgia, Mississippi, and New Jersey: Reese v. Hawthorn, 10 Grat. 548; Case of Priscilla E. Yarnall’s Will, 4 Rawle, 46, 26 Am. Dec. 115; Boyer v. Frick, 4 W. & S. 357; Conaughton’s Will, 11 Penn. Co. Ct. Rep. 460; Rutt’s Estate, 200 Pa. St. 569, 50 Atl. 171; Wiley’s Estate, Forman’s Appeal, 187 id. 82, 40 Atl. 980, 67 Am. St. Rep. 569; O’Neill et al. v. Smith, Adm’r of O’Neill, 33 Md. 569; Hammett v. Shanks, 41 id. 201; Ellington v. Dillard et al., 42 Ga. 361; Scaife v. Emmons, 84 id. 619, 10 S. E. 1097, 20 Am. St. Rep. 383; Bellamy v. Peeler, 96 id. 467, 23 S. E. 387; Sadler v. Sadler, 60 Miss. 251; Carroll v. Bonham, 42 N. J. Eq. 625, 9 Atl. 371.
Following these cases, most of the text-writers have announced the same rule. A contrary view has been taken by the supreme courts of Alabama, Tennessee, and Illinois : Johnson et al. v. Glascock & wife et als., 2 Ala. 218; E. M. Nolan v. W. B. Gardner et als., 7 Heiskell, 215; Harrington et al. v. Stees et al., 82 Ill. 50, 25 Am. Rep. 290. These latter cases will be considered at greater length hereinafter.
Light is sought to be thrown upon the question by consideration of the common,law, and quite an elaborate discussion of it may be found both in the opinion of Chancellor Kent in Prince v. Hazelton, supra, and in the case of Johnson et al. v. Glascock & wife et als., supra, which was decided in 1841. "We do not think it of great moment to go into the details of this discussion. It will be sufficient to remark that in the earlier stages of the common law, at least, verbal wills made by any competent person at any time while in the best of health were recognized as valid; but a gross and palpable fraud that was brought to light in the case of Cole v. Mordaunt, 4 Ves. 196, caused the passage by parliament, in the twenty-ninth year of Charles II, of an act restricting the right to make such wills to those who should be in their last sickness. We are not disposed to give much weight to these considerations. Although we may remark that, as the right to make a verbal will would exist with little, if any, restriction in the absence of statute, we must view the statute as restrictive rather than permissive, and hence that it is to be carried no further than a reasonable interpretation of its terms requires.
It is true that the statutes of most of the states have limited the right to make verbal wills to much narrower bounds than does ours, and it is further true that in some of the states that right has been denied under most circumstances ; still the question that re mains for us is, What interpretation must be placed upon our own statute? It is sure that the right to make verbal wills yet' remains under the terms of our statute, and we are not warranted in emasculating that statute by an interpretation which shall restrict the making of such wills to so narrow a compass as practically to deny the right; but we must, rather, adopt a construction that will be fairly reasonable and just, so as to carry out and effectuate under the ordinary and expected circumstances the purpose of the legislature in authorizing the execution of such wills. While it may be true that their execution is not to be encouraged, it is also true that the law must be reasonably interpreted and administered to permit the exercise of the right therein granted. The inquiry then is, As a practical proposition, how shall the phrase “in the last sickness” be construed? It must mean that the nuncupation must be had at some time during the progress of the sickness from which the nuncupator finally dies. If he should recover from the sickness which he had when he spoke the words, the nuncupation would be void.
We think that it is equally clear that the term should not be construed to cover a period of long duration or make valid a will pronounced at a time when the testator was neither in danger of approaching death nor expecting death within a short time. In one view, “in the last sickness” might be construed to mean all of that period during which the deceased was in any way afflicted with the disease which finally terminated fatally, but this construction does not recommend itself, for perhaps, actually considered, the seeds of the fatal disease were carried even from the cradle. In another view, “in the last sickness” may be interpreted as the end of the fatal illness, because it is of the augmented force of accumulating disease that finally and lastly the afflicted one is removed. We think this latter interpretation, which is the one insisted upon by the defendants in error, and apparently adopted by the court below, equally unreasonable and untenable. If this be adopted, we are left without any guide whatever. “Last sickness,” in this view, must mean the last expiring breath — the condition that immediately precedes dissolution — that condition indicated by the court below in its second conclusion of law as in extremis or in articulo mortis, or being surprised by sudden death. If we adopt this construction we practically deny the right to make a verbal will; for if a testator must wait until he shall be in articulo mortis, then he may have lost testamentary capacity, and when he has lost testamentary capacity he cannot make a will. At best, the question of the validity of the will because made too soon, or of testamentary capacity because made too late, would be the occasion of serious conflict in every case. We cannot believe that either of these extreme claims is founded in reason, but rather prefer to hold that the proper interpretation of the statute is that where the “last sickness” of one has progressed to such a point that the deceased expects, and is liable, to die at any time, and in view of its occurrence and as preparatory thereto a verbal will is made, and he does thereafter die of such disease, such will is valid and is “made in the last sickness ;” that neither prior preparation to make such verbal will nor opportunity to make a written will at the time or thereafter would necessarily be determinative against the' validity of the nuncupation.
Ia the case of Johnson et al. v. Glascock and wife et als., supra, the court as its conclusion held:
“If a person in his last sickness — the sickness of which he subsequently dies — impressed with the probability of approaching death, deliberately makes his will, conforming to the statute, we do not feel authorized to say that it will be invalid because, in point of fact, he had time and opportunity to reduce it to writing.”
In the case of E. M. Nolan v. W. B. Gardner et als., sup a, after speaking of the words of their statute, which in substance is the same as ours, the court said :
“It is important to bear in mind that the power to make a nuncupative will is not derived from this statute. The power existed independently of the statute. The statute only places limitations and restrictions upon that power, and these restrictions will not be held to go any further than the plain and natural import of the language will justify. The only requirement of the statute in this regard is that the will shall be made ‘in the last sickness’ of the testator ; but by the construction given to it by the court below, the sickness must be a sudden and violent one, and must progress so rapidly to a fatal termination as to make it impracticable to make a written will, or it must affirmatively appear that the means or facilities for reducing the will to writing were not at hand. Surely this is adding to the statute requirements not to be gathered from any fair construction of the language used, and such as would practically in most cases defeat wills of this character altogether.”
In Harrington et al. v. Stees et al., supra, it was held :
“It is contended, first, that this will was not made ‘in the time of the last sickness’ of deceased, in the sense in which the words are used in the statute. It is strenuously insisted that such a will, to be valid, must have been made in extremis, or when the tes tator is overtaken by sudden and violent sickness and has not time or opportunity to make a witten will. . . .”
“At common law, it was not essential to the validity of a nuncupative will that the testator should have been ill at all. The statute is, in this regard, a limitation of the common-law powers. The words ‘in the time of the last sickness,’ had no technical signification at the time of the passage of the statute. These words must be taken in their ordinary signification. The courts have no power to take from or add to the statute. It is their duty to carry out the will of the legislature as found in the words of the statute, and the necessary and reasonable implications arising from these words. The statute requires it to be proven that the will was made ‘in the last sickness.’ It is a reasonable and necessary implication that it must also appear that the testator, at the time of making the will, supposed that his then sickness would prove his last sickness — in other words, that he should be impressed with the probability that he would never recover.”
The law being distinctly stated in the syllabus in that case as follows :
“If a person, in a sickness, from which he after-wards dies, being impressed with the probability of approaching death, deliberately makes his will in conformity to the statute, it will not be rejected because he may, in fact, have had time to reduce it to writing. It. is not necessary that he should have no hope of recovery.”
From this conclusion, however, Chief Justice Breese dissented.
There is not a little show of reason in the proposition made by plaintiff in error, that the statute under which the leading case of Prince v. Hazelton, supra, was made requires a much stricter construction than does ours, for in several particulars that statute seems to restrict the right to make a verbal will to much narrower limits than does ours. We are not, however, placing our conclusion upon any fine-spun or even obvious distinction of this character.
Attorneys for defendant in error insist that we must here apply the rule of interpretation found in our statute (Gen. Stat. 1901, §7342, subd. 2), where it is provided that “technical words and phrases, and such others as may have acquired a particular and an appropriate meaning in law, shall be construed according to such peculiar and appropriate meaning,” claiming that the words “in the last sickness” have acquired such peculiar and appropriate meaning. In this we do not agree with them. It can hardly be held that where courts of so high authority have so radically disagreed in the meaning to be attached to these words the legislature used them in the sense attributed to them by one court, rather than in that given them by another.
Turning now to a consideration of the last question involved, Was there a sufficient roga.tio testium? The words performing this function were : “I want you to see that it [referring to the verbal will] is carried out the way I want it to be.”
The requirement of the statute is that the testator shall call “ upon some person present at the time the testamentary words were spoken to bear testimony to said deposition as his will.” This provision of the statute must be substantially complied with in order that the will be valid ; it is not necessary that the exact words of the statute be used by the testator. The rule is well stated in a note to the case of Wiley’s Estate, Forman’s Appeal, supra, in 67 American State Reports, on page 577, where it is said :
“It is not absolutely essential to the validity of the will that the testator should use the exact words of the statute in requesting the persons present to bear witness that such is his will. It is sufficient if such desire is clearly and unequivocally manifested by the testator, but it is indispensable that he should expressly desire those present to bear witness that the words then expressed were his last will, or that he would say or do something equivalent to an express request.' But any form of expression, however imperfectly uttered, so that it clearly conveys to the minds of those to whom it is addressed the idea that he desires them or some of them to bear witness to the disposition that he is then making of his property is sufficient.”
In Weir v. Chidester et al., 63 Ill. 453, the court said :
“Any words that express a clear intention to give the estate to a certain person will be sufficient to pass the property. Nor is it necessary that the testator should call upon persons present, by name, to become witnesses to his will. Any form of expression, however imperfectly uttered, so that it conveys to the minds of those to whom it is addressed the idea that he desires them or some one of them to bear witness to the disposition he is making of his property, will be deemed a compliance with the statute in that regard.”
In Bradford v. Clower, 60 Ill. App. 55, the words, “you all know now what I want done, that is all I have got to say,” were held to be a sufficient calling upon witnesses to bear witness to the deposition the testator was making. (See, also, Owens Appeal in the Matter of Pritchard’s Will, 37 Wis. 68; In re Will of Christopher Hebden, 20 N. J. Eq. 473; Matter of Estate of Grossman, 75 Ill. App. 224.)
It is clear from the undisputed evidence that the bystanders thus addressed well knew what the deceased was doing; that they understood his purpose and desire in the entire transaction ; and that by the words used they were to become witnesses thereto. We think the court was in errnr in concluding that there was not a sufficient rogatio testium to satisfy the statute.
On the whole case, under the findings of fact, sustained and amply supported by the evidence as they are, we are of the opinion that the nuncupative will of J. Hardin Baird was executed under such circumstances, and with such formalities, as, by the provisions of our statute, to make it a valid nuncupative devise. We, therefore, reverse the judgment of the court below, and direct that judgment be entered for the defendants below, sustaining the probate of the will.
All the Justices concurring. | [
-16,
108,
-67,
-99,
10,
96,
10,
-38,
115,
-125,
117,
123,
-23,
-38,
5,
111,
114,
13,
85,
105,
-12,
-109,
22,
-119,
-38,
-13,
-43,
-43,
51,
111,
-12,
-42,
73,
32,
26,
-107,
-26,
72,
-59,
-44,
-52,
4,
-120,
-8,
-37,
80,
52,
123,
20,
90,
-43,
-86,
-45,
42,
24,
-29,
104,
60,
-5,
-67,
80,
-16,
-66,
-105,
-51,
23,
19,
2,
-104,
-121,
88,
58,
-112,
49,
-120,
-4,
115,
-122,
22,
116,
69,
-119,
44,
118,
107,
49,
29,
-19,
-96,
-56,
15,
55,
-99,
-89,
-78,
89,
-22,
108,
-98,
-103,
55,
80,
15,
-4,
-27,
23,
-100,
-84,
-126,
-117,
-106,
-127,
89,
60,
-104,
31,
-5,
-119,
49,
81,
-51,
98,
120,
70,
50,
-103,
-97,
52
]
|
Per Ouriam:
There was no testimony showing that the statements made by Inman in the presence of the sheriff, county attorney and constable were induced by threats or promises. He was told distinctly that he was not compelled to answer. (The State v. Kornstett, 62 Kan. 221, 61 Pac. 805.) The complaint that the court should have submitted to the jury the question whether Inman’s statements had been extracted by fear or induced by hope of benefits is without merit. Counsel for defendant asked that the investigation be made in the absence of the jury, and finally agreed that the testimony at a former trial respecting the surroundings of defendant at the time he talked to the sheriff and others should become a part of the record on this trial, to which the court assented. No offer was made by counsel for defendant to'read this testimony to the jury. Withholding testimony from a jury cannot be ground of error when the testimony was not offered.
The contention that the admission in evidence of statements made out of court by a party on trial are incompetent, on the theory that they tend to make him a witness against himself, is without substance. Voluntary statements of an accused person have always been received in evidence against him. Section 10 of the bill of rights is not violated by the admission of such testimony. Again, no objection on constitutional grounds was made to the testimony in the court below. The trial court was afforded no opportunity to consider or pass upon the constitutional question now presented.
Direct and circumstantial evidence, as defined by the court in its instructions, was without prejudice to the defendant. The definitions given are supported by section 5 of volume 1 of Jones on Evidence, and by the language of Chief Justice Shaw in Commonwealth v. Webster, 5 Cush. 295, 310.
Instruction No. 10 stated the rule of evidence fairly. (The State v. Furney, 41 Kan. 115, 21 Pac. 213, 13 Am. St. Rep. 262.)
We have given consideration to the other errors assigned, and find nothing to justify a reversal of the judgment. The case was carefully tried on the part of the court below. The instructions guarded all the rights of the appellant. There was sufficient evidence on which the jury might convict.
The judgment of the court below is affirmed. | [
48,
-24,
-24,
-97,
10,
96,
56,
0,
-127,
-93,
54,
114,
-17,
-34,
1,
35,
-66,
63,
85,
97,
76,
-77,
103,
67,
-14,
-13,
24,
-43,
-73,
-53,
-20,
92,
77,
32,
-54,
-11,
102,
-120,
-121,
90,
-118,
-113,
-104,
64,
-110,
80,
32,
23,
126,
75,
17,
-106,
-13,
46,
26,
-61,
105,
44,
75,
-67,
96,
56,
-97,
71,
109,
4,
-77,
38,
-100,
67,
-8,
46,
24,
49,
1,
-22,
115,
-74,
-126,
-44,
73,
-119,
40,
102,
98,
-95,
45,
102,
-8,
-97,
63,
127,
-97,
-90,
-48,
65,
75,
77,
-105,
-1,
125,
48,
46,
-24,
-23,
28,
92,
102,
11,
-113,
-74,
-73,
-117,
60,
-106,
1,
-25,
-111,
20,
113,
-51,
-6,
92,
65,
113,
-101,
-114,
-107
]
|
Per Curiam:
Appellant was charged in two counts: First, with the illegal sale of intoxicating liquors; and, second, for maintaining a nuisance in connection therewith. He was convicted and sentenced upon the second count.
Upon the trial he denied that the liquor kept by him and sold was of an intoxicating character, and that he kept for sale or sold intoxicating liquors at the place charged. Evidence was introduced and considered upon these points.
In support of a motion for a new trial it was shown by the affidavits of several of the jurors that while the jury were deliberating upon their verdict one of them stated in the presence and hearing of the others: “I know it was beer that the defendant was selling there,” referring to the place where he was charged with maintaining nuisance, “because I drank some of the stuff myself.” Again: “I know that he sold intoxicating liquors as charged; that is the business he is in; he has followed it for years.” It was further shown that thereafter the jury, which had stood largely for acquittal, agreed to a conviction. A new trial was refused notwithstanding this showing. In this we must hold the court erred. (The State v. Burton, 65 Kan. 704, 70 Pac. 640; The State v. Rambo, 69 id. 777, 77 Pac. 563.)
The judgment of the court below is reversed, and the cause remanded for further proceedings. | [
-79,
-22,
-19,
-97,
10,
96,
34,
-8,
65,
-27,
55,
115,
-19,
82,
1,
105,
-6,
127,
117,
121,
-38,
-73,
39,
65,
-10,
-5,
-38,
-41,
-75,
111,
-27,
-12,
77,
-12,
11,
-11,
98,
-63,
-47,
92,
-118,
4,
-103,
-32,
82,
-102,
52,
43,
70,
10,
113,
30,
-29,
40,
31,
-61,
9,
44,
75,
29,
112,
-72,
-104,
-59,
111,
22,
-93,
22,
-99,
-121,
-40,
46,
-108,
49,
1,
-24,
115,
-108,
6,
84,
79,
-101,
-84,
102,
98,
33,
17,
-17,
-88,
-120,
47,
47,
-99,
-89,
-40,
89,
73,
-88,
-74,
-35,
116,
54,
6,
-2,
-19,
-43,
89,
124,
6,
-50,
-68,
-77,
-113,
60,
-58,
82,
-21,
-89,
16,
69,
-35,
118,
92,
69,
82,
27,
-114,
-108
]
|
The opinion of the court was delivered by ■
Cunningham, J. :
This was a suit by the First National Bank of Herington, Kansas, to foreclose a mortgage given by Samuel Harrison and his wife to secure the payment of several notes. The Boatmen’s Bank and C. M. Smith, its trustee, were made parties defendant, under the allegation that the bank had, or claimed to have, some interest in the mortgaged property. This interest was afterward shown to be a conveyance from Harrison to the Boatmen’s Bank subsequent to the recording of the mortgage. The Boatmen’s Bank, by its trustee, Smith, for answer claimed that Harrison had fully paid the notes. Harrison made default. After the court had entered upon the trial of the issues between the two banks thus made, it was found, advisable, owing to the length of the accounting involved, to appoint a referee to ascertain the condition of the account between Harrison and the Herington bank. Subsequently, when this hearing came on before the referee, the Boatmen’s Bank suggested the death of Harrison, but neither produced proof of the fact nor requested revivor. The referee proceeded to ascertain the condition of the accounts between Harrison and the Herington bank for the purpose of ascertaining the amount due upon the notes sued upon in order to determine whether, as against the Boatmen’s Bank, the mortgage should be foreclosed. The Boatmen’s Bank participated in this examination. The referee made findings of the amount due the Herington bank on the Harrison notes. Upon the motion of the Boatmen’s Bank, for various grounds therein set out, this report was set aside and the court proceeded to ascertain for itself the amount due on the notes. Upon this hearing it received as evidence, by agreement of parties, the transcript of the evidence taken by the referee. Whether it received other evidence than this the record does not show. Its findings of the amount due varied slightly from those of the referee. Personal judgment was rendered against Harrison for the amount, and judgment against all of the defendants for the foreclosure of the mortgage and the sale of the premises.
Complaint is here made because the case was proceeded with after the suggestion of the death of Harrison without a revivor. This was not error, for two reasons : (1) There was no showing, besides the mere suggestion, that Harrison was dead; (2) it was entirely immaterial, so far as the Boatmen’s Bank was concerned, whether Harrison was dead or unrepresented upon the hearing: The issue between the plaintiff and the Boatmen’s Bank could proceed to final determination just as well without, as with, Harrison in the case, and that bank could make every defense to the notes for the purpose of defeating foreclosure of the mortgage that it could have made had there been a revivor of the personal action against Harrison.
It has been repeatedly decided in this court that where the title to mortgaged real estate has passed from the mortgagor subsequently to the execution of the mortgage the mortgagor is not a necessary party in a suit to foreclose. (Jones v. Lapham, 15 Kan. 540; Ashmore v. McDonnell, 39 id. 669, 18 Pac. 281.)
It is further urged by the plaintiff in error that under the evidence shown by the record an excessive amount was found due on the notes. It does not so appear. Aside from the fact that the matter was given careful consideration by the court below, involving, as it did, long and somewhat intricate ac counts, we have no sufficient data from which to make a recalculation, even were we so disposed. The record, as we have already suggested, does not show that all of the evidence considered by the court is therein found.
The judgment is affirmed.
All the Justices concurring. | [
-14,
108,
-72,
-1,
122,
96,
42,
-102,
105,
-80,
-89,
83,
-55,
-121,
1,
105,
-74,
13,
-16,
105,
70,
-77,
7,
-31,
-46,
-14,
-15,
-35,
-80,
-36,
-12,
-33,
12,
48,
-62,
-107,
-26,
-54,
-61,
84,
-114,
7,
40,
-59,
-35,
72,
52,
123,
86,
74,
21,
-116,
-13,
46,
29,
74,
105,
41,
-53,
45,
80,
-8,
-117,
-113,
93,
5,
51,
32,
-116,
71,
-54,
62,
-112,
53,
1,
-8,
121,
-90,
-124,
-76,
77,
-117,
8,
102,
98,
33,
117,
-21,
-8,
-104,
46,
-34,
-99,
-90,
-112,
72,
2,
33,
-74,
-99,
124,
80,
7,
-2,
-18,
5,
29,
-20,
19,
-53,
-78,
-111,
-113,
124,
-102,
11,
-14,
3,
48,
113,
-49,
32,
93,
-59,
56,
25,
-98,
-7
]
|
Per Curiam:
Upon a rehearing (Jordan v. Telegraph Co., 69 Kan. 140, 76 Pac. 396) on the application of the referee in this case as to the amount that should be allowed to him in costs for his services as such, the judgment of the court is so amended as to permit the award made by the district court in that respect to stand. On this rehearing several matters have been called to our attention which were not presented before, which go to enhance the value of the referee’s services. In the light of the matter thus presented we are not able to say that the award of the court below was erroneous. On the former hearing the referee was not represented, and it seemed then to be admitted, inferentially at least, by both plaintiffs and defendant that the award was excessive. | [
-80,
-20,
-92,
-116,
8,
34,
0,
-118,
109,
-15,
-25,
83,
-67,
66,
20,
15,
-73,
61,
-15,
106,
-42,
-94,
23,
67,
-50,
-46,
-5,
-41,
-79,
108,
-12,
-4,
76,
56,
-22,
-43,
102,
-62,
-59,
86,
-114,
-121,
-71,
-51,
-7,
33,
52,
60,
18,
87,
49,
-10,
-29,
40,
25,
-61,
72,
62,
-2,
97,
65,
-48,
-102,
5,
127,
0,
50,
7,
-100,
-114,
-36,
46,
24,
61,
3,
-8,
120,
-90,
2,
-11,
43,
-71,
-116,
102,
98,
16,
81,
79,
-68,
-8,
63,
54,
-99,
-28,
-109,
88,
75,
15,
-74,
-73,
100,
118,
7,
-4,
-3,
21,
-97,
-92,
-117,
-113,
-92,
-77,
-113,
92,
-118,
74,
-26,
-109,
16,
68,
-52,
-26,
92,
78,
50,
-103,
-98,
-68
]
|
Tne opinion of the court was delivered by
Burch, J. :
Appellant was convicted of the crime of perjury, committed before a justice of the peace of the city of Great Bend, and appeals to this court. Error is assigned because a motion to quash the information and an objection to the introduction of any testimony under it were overruled, the ground of each being that the information did not show the materiality of the false testimony to the proceeding in which it was given. The recital of facts in the information, when fairly construed, does show materiality, although not in terms as direct and certain as might have been used, by setting out the testimony and stating that it was given in support of a defense of an alibi in a prosecution of a character described. But, in addition to this, the statement of the false testimony concludes with the following allegation : “All of which were material matters in said cause.” The authorities recognize two methods of pleading the materiality of testimony alleged to be false, in prosecutions for perjury. Facts may be averred from the relation of which materiality is made to appear, or a direct allegation may be made that the testimony in question was material. (2 Bish. New Crim. Proc. §921; 2 Whar. Crim. Law, §1304; 16 Encyc. Pl. & Pr. 343.) If the latter method be adopted, the allegation of materiality may be regarded as a statement of ultimate fact and not as a mere conclusion of law. The information in this case is sufficient under either rule, and the motion and objection were properly overruled.
When the case was called for trial the defendant and his attorneys appeared and participated in the examination of the jury. After the jury had been sworn the defendant objected to any further proceedings in the case, for the reason that he had not been arraigned and had not pleaded to the information. The court then caused the information to be read to the defendant, requested him to plead, and, upon his refusal to do so, entered a plea of not guilty for him. The jury was then resworn and the trial proceeded with, over the objection and exception of the defendant. This action of the court is assigned as error.
In the case of The State v. Wilson, 42 Kan. 587, 597, 22 Pac. 622, the course adopted by the district court to cure the irregularity in failing to arraign the defendant and to require him to plead was expressly recommended.
In the case of Weaver v. State, 83 Ind. 289, the proper practice on such occasions was described, as follows :
“ It is shown by the record that the court discovered, after the jury had been impaneled and sworn to try the case, but before any evidence had been given to the jury by either of the parties, that the appellant had not been arraigned on the indictment, and had not entered his plea thereto. What was the duty of the court upon making this discovery ? It was hardly incumbent on the court, after such discovery, to proceed with the trial of the cause without an issue ; for, if such trial had resulted in the conviction of the appellant, his non-arraignment on the indictment and his failure to plead thereto would have constituted sufficient cause, not for his discharge from the indictment, but for a new trial. ... It seems to us, therefore, that it was the plain duty of the court, when it was discovered that the appellant had not been arraigned and had not entéred his plea, to cause him to be arraigned and to require him to enter his plea to the indictment before proceeding with the trial of the cause. Any other course than the one pursued by the court in this case would necessarily result in useless expense and a waste of time.”
In the case of Disney v. Commonwealth, 5 S. W. (Ky.) 360, it was said :
“But, by an oversight, the appellant was put upon his trial before he was required to plead; the oversight was discovered and corrected, before the case had progressed far, by entering the appellant’s plea and reswearing the jury. This was done, it is true, against his protest. But what right of his was prejudiced? The jurors had just been selected and chosen by him in the manner pointed out by law ; his rights in that regard were in no manner abridged. And the subsequent fact of putting him upon trial, and progressing with the trial for a short time without his plea having been entered, deprived him, in fact, of no right that he would have been entitled to in the progress of the trial had it been properly begun. Therefore, it is clear, very clear, that his rights were not prejudiced by the action of the court.”
See, also, State v. Weber, 22 Mo. 321; The State v. Willard, 39 Mo. App. 58; Morris v. The State, 30 Tex. App. 95, 16 S. W. 757.
Authorities may be found impugning the doctrine announced by these cases, but they do not commend themselves to our view. Without arraignment or a waiver of arraignment, and without plea or a refusal to plead and an entry of a plea by the court, the defendant was not in jeopardy, and the proceeding amounted to nothing. (The State v. Rook, 61 Kan. 382, 59 Pac. 653, 49 L. R. A. 186; Wallace v. State, 4 Lea, 309.) Hence, all that the defendant could demand would be that the erroneous proceeding be set aside and another conducted against him in the regular way. This was done, and then all the formalities of the law were followed. Therefore, he has suffered no injury whatever to his rights.
On the trial it appeared that certain documents establishing the title of the justice of the peace before whom the false testimony had been given to his office were either lost or destroyed, and consequently secondary evidence of their contents was introduced. In this there was no error. The justice also gave oral testimony relating to the public discharge of the duties of the office of justice of the peace under a claim of official right. Under the circumstances of the case this evidence was also unobjectionable.
The complaint filed and warrant issued in the action in which the false testimony was given were introduced in evidence. They were proper in order to prove the institution and pendency of the proceeding to which they related. Other testimony admitted against the defendant is not of sufficient importance to require notice.
No exceptions were saved to the instructions given to the jury, and the assignment of error relating to that feature of the trial cannot be considered. (Railroad Co. v. Werner, decided at the present term, ante, page 190, 78 Pac. 410.) Other matters urged as grounds for a new trial were not called to the attention of the court in the motion for a new trial, and hence are not available to the defendant in this appeal.
The state insists that the bill of exceptions was allowed and signed beyond the time limited for that purpose, and, hence, that all assignments of error depending upon it are not reviewable. The journal entry reads as follows:
“Upon the application of the defendant, it was ordered by the judge of the court who tried this case that the above sentence be stayed until the 25th day of June, 1904, until which time the defendant was given to make and file a bill of exceptions, the said order staying sentence being upon the condition of the defendant giving bond in the sum of $1200, conditioned for his appearance at this court on said day, which bond was duly given, approved by the court, and the defendant was discharged until the said date.”
The bill was settled and signed on June 25. A clear instance is here presented in which the strict legal and lexigraphic meaning of the word “until” may be controlled by the context. The condition of the defendant’s bond-was that he appear on June 25. He was evidently discharged to appear according to his bond, and execution was evidently stayed while he was at liberty under his bond, even though the expressions used were “ until” said day. The same period, however, was plainly allowed in which to make his bill of exceptions. (The State v. Bradbury, 67 Kan. 808, 74 Pac. 231; The State v. Dyck, 68 id. 558, 75 Pac. 488.)
No sufficient reason having been shown for a reversal of the judgment of the district court, it is affirmed.
All the Justices concurring. | [
-80,
-20,
-23,
-98,
-70,
96,
42,
56,
17,
-127,
-73,
115,
109,
-38,
4,
59,
114,
93,
84,
99,
68,
-105,
7,
-127,
-10,
-77,
-38,
-107,
-65,
111,
-28,
92,
79,
-80,
-62,
-43,
38,
-56,
-57,
94,
-114,
5,
-88,
-48,
-46,
64,
36,
121,
18,
11,
113,
63,
-5,
43,
27,
-61,
-55,
40,
111,
56,
65,
-39,
-116,
21,
-35,
84,
-77,
4,
-100,
7,
88,
40,
-104,
-79,
1,
-72,
51,
-106,
18,
-44,
109,
25,
12,
102,
98,
33,
12,
-25,
-88,
-120,
47,
62,
29,
-89,
-104,
73,
105,
45,
-74,
-35,
119,
50,
38,
-24,
-13,
20,
29,
108,
11,
-49,
-46,
-77,
15,
56,
-102,
123,
-21,
-95,
0,
97,
-59,
96,
92,
69,
114,
-101,
-98,
-11
]
|
The opinion of the court was delivered by
Burch, J. :
On June 28, 1902, Miss Blanche Boies, Mrs. Henry Howard and others of a praying-band, five in number, went to certain rooms in a brick building at No. 402 Quincy street, in the city of Topeka, and found there a flourishing beer-saloon. In the place were a bar and shelves and bottles and glasses and tables. Men were sitting at the tables playing-cards, and a dozen others were at the bar drinking. A man behind the bar was handing out beer to them, which they drank and paid for, one of the women seeing the money pass. One of the women asked the bartender if that was Mr. Fritz Durein’s saloon, and he said it was. She asked for the proprietor, and he said he was Fritz Durein. In the course of a conversation with him he told the women he did not think it wrong to keep a saloon ; that it was not against his religion, and that he intended to keep right on running a saloon and selling beer. He drank a glass of it himself and asked the women to have some.
On January 10, 1903, an assistant attorney-general of the state of Kansas for Shawnee county filed an information against this Fritz Durein, charging him with selling liquor without a permit and with maintaining a nuisance at the place described. A warrant was issued at once. Within twenty minutes after receiving the writ the sheriff of Shawnee county and two of his deputies were at the place, and found it to contain a bar and shelves and glasses and tables,and an ice-box, bottles and kegs of beer, bottles of whisky, and a miscellaneous lot of bottles and various kinds of liquor, some labeled beer, and some hop-tea, and some wine. Ten or twelve persons were in the room, some sitting at tables and some standing at the bar drinking. Durein was behind the bar setting out beer. Upon a trial the officers and the members of the praying-band already named related the foregoing facts, and a verdict was returned against Durein, finding him-guilty of the offenses charged. Judgment upon the verdict was duly rendered, and in an appeal to this court numerous errors are assigned.
The count of the information under which the appellant was convicted of an unlawful sale of intoxicating liquor charged that he made such sale without first taking out and having from the probate judge of Shawnee county a permit for that purpose. It is insisted that every word of that count of the information might be true and the appellant be innocent of any offense, for, it is said, although he had no permit he had a lawful right to sell if he was a registered pharmacist or assistant pharmacist in the employ of one having a permit. Hence it is claimed the count should have been quashed for want of an allegation negativing the bearing of any character by the appellant which might afford him immunity from prosecution. No such allegation was necessary. The statute recognizes no independent right in a druggist’s clerk who is a registered pharmacist or assistant pharmacist to make sales of intoxicating liquors. Sales made by such a clerk are regarded as made by the druggist himself. The clerk’s identity is merged in that of his employer; and since he has no distinct character of his own, as a dispenser of liquor, a complaint for selling without a permit need not negative such character in order to charge a public offense.
In response to a motion requiring the state to elect upon what transaction it would rely to convict the appellant of an unlawful sale of intoxicating liquors it elected to rely upon an alleged sale to parties whose names were unknown, made on the 28th day of June, 1902. The names of the witnesses to such sale were not stated in making the election, and no further attempt was made to individualize any particular sale. The court instructed the jury that the state relied upon a sale of intoxicating liquor by the appellant to parties whose names were unknown, as testified to by the witnesses, Mrs. Howard and Miss Boies, such sale having been made on June 28, 1902. It is claimed the election was insufficient, and that a conviction was impossible under the evidence of the witnesses named.
No witnesses gave evidence of a sale on June 28, 1902, except those named in the instruction, and their testimony related to the same transaction. The mere fact that a dozen men were drinking at once, or during a given period of observation, and that the witnesses were unable to identify the particular individual or individuals who furnished the money observed to pass, did not militate against the fact that a sale was made. A liquor-seller cannot escape punishment because sales are made to men in such groups, or in such a manner, that witnesses cannot separately discriminate them. If all the elements of a sale appear in evidence, it is sufficient to support a verdict of guilty, even though a keener scrutiny might have detected that several sales were in fact made. The inability of witnesses fully to describe the transaction ultimately advantages the accused, because he is protected against any further prosecution on account of anything which the transaction in fact included. The nuisance sections of the statute do not cover such cases, for sales of the character described may be made by one not the keeper of the place, and if a keeper should also sell he is subject to the penalties prescribed for both offenses. Therefore the election was sufficient, and the verdict was sufficiently supported by the evidence.
A witness testified to sales of intoxicating liquor by the appellant, but before his examination was concluded it was discovered that such sales were made long after the information had been filed. The record then discloses the following :
“The Court: Any testimony concerning anything that may have occurred since this information was filed would not be competent.
“Mr. Redden: The information was filed January 10, 1903.
“The Court: Then the testimony of this witness as to last spring is withdrawn.
“Q. Were you not in there during the spring or summer of 1902? A. I don’t think I was.
“Q. Were you not in there about June, 1902 ? A. I don’t remember that.
“Q. And thereafter ? A. I don’t remember being in there, as I said.
“Q,. That is, until in the spring of 1903 ? A. Yes, sir.
“The Court: This evidence is not competent in this case. Anything that occurred since the information was filed cannot be considered against the defendant.”
Appellant insists that the remarks of the court were addressed to counsel only, and not to the jury. The record cannot be interpreted to show error, if it be susceptible of a reasonable interpretation to the contrary. Plainly the statements that the testimony of the witness was withdrawn and that anything occurring since the information was filed could not be considered might have been directed to the jury, and, if so, they were sufficient to take the objectionable evidence out of the case. That the court so intended is apparent from its conduct in overruling the motion for a new trial, and the appellant does not show the contrary to be.true.
The nuisance count of the information under which appellant was convicted charged that he maintained a place where intoxicating liquors were sold, and were kept for sale, and where persons resorted to drink intoxicating liquors, contrary to law, on March 2, 1901, and divers other days and times between that day and the filing of the information. The court instructed the jury as follows :
“The court has permitted the officers who served the warrant in this case to testify as to what they saw and found at the place described in the information at the time they went to the place for the purpose of serving the warrant. This testimony is competent to be considered by the jury in passing upon the question as to whether the place described in the information was a common nuisance at the time charged. But this testimony is not competent, and cannot be considered by you in your deliberations in the jury-room, for the purpose of determining whether the defendant was the keeper of this place at the time charged. On the question of whether the place described in the complaint was a common nuisance at the time therein charged, this testimony is competent to be considered, together with all the other facts and circumstances proven, for the purpose of determining whether the place described in the complaint at the time charged was a common nuisance by reason of being a place where intoxicating liquors were kept for sale and sold in violation of law.”
Appellant argues that a retrospective inference from the condition of the place on January 10, 1903, to the effect that a nuisance existed prior to that time, would be illegitimate, and that after the court had instructed the jury there was left neither evidence nor presumption that he was a keeper at any other time than on June 28, 1902.
In the case of Topeka v. Chesney, 66 Kan. 480, 71 Pac. 843, the sole question for consideration was the relation of a man, charged as keeper, to a liquor nuisance at a particular place — a relation which in and of itself is not necessarily or essentially a continuing or enduring one. The question was sharply raised by an instruction, and its decision was accurately expressed in the syllabus, which reads :
“In a prosecution for keeping a place where intoxicating liquors were sold in violation of a city ordinance, evidence relating to the condition of the place five days after the date of the offense, and three days after the filing of the complaint, was inadmissible to prove that the defendant was the keeper of the place.”
The opinion related solely to the point under consideration, and was based upon two grounds — one of simple logic, forbidding that mere proof of facts showing a place to be a nuisance will also identify its keeper ; and another of law, founded upon sound reason, forbidding the indulgence of retrospective inferences. That retrospective inferences may be indulged in some cases was expressly recognized, but some confusion may have resulted from the citation of the peremptory rule given in volume 22 of the second edition of the American and English Encyclopedia of .Law, at page 1239. The paragraph from the encyclopedia is in effect an elaboration of rule 37 in Lawson on Presumptive Evidence, which states that “a presumption is not retrospective.” Professor Lawson’s statement, like that of the encyclopedia, is based upon the decisions of reputable courts, and has been expressly approved in Jarvis v. Vanderford, 116 N. C. 147, 21 S. E. 302, and in Martyn v. Curtis, 67 Vt. 263, 31 Atl. 296. In the first case it was decided that because certain persons held official positions at a given date it could not be inferred they were such officers some years before, and in the second it was held that the use of land as a pasture at a particular time did not warrant an inference that it had previously been so used. The same rule is given in section 110 of volume 1, Elliott on Evidence (Sept. 1, 1904), and supported by abundant authority. Likewise, in the case of Barnes v. The Commonwealth, 2 Dana (Ky.) 388, it was held that, upon the trial of an indictment for keeping a tippling-house in March, proof of keeping such house in the following August was inadmissible, wdiich could not have been true if a revertive inference of continuity had been allowable.
These authorities are all sound in principle, but some discrimination must be used in the application of general rules to particular states of fact. The nature of the subject is of importance. From their present condition and appearance it might be reasonably inferred that the pyramids of Egypt have endured without essential modification for a long period of time. No such inference is possible concerning frost films on the window-pane. The quality of substantially changeless continuity inheres in the one, and not in the other. Between such classes of objects, and separated from one another by infinitesimally slight signs of difference, lies an infinity of states, conditions, and relations, complicated by the interposition of human activities. Of some of these persistence may not be predicable at all, and of some of them such an affirmation may be made with reasonable certainty, within wider or narrower time limits. When one of these matters is offered in court as an evidentiary fact it may be that its admissibility cannot be determined by any fixed standard of law. Thus, in negligence cases, the condition of a place, or of an appliance, shortly before and shortly after an accident, when there is nothing to indicate a change, may be relevant, when the lapse of a slightly greater interval, or a very little modification of circumstance, would destroy its value altogether. Therefore very frequently something must be left to the cautious exercise of the court’s best judgment upon the peculiar facts of the particular case. Sometimes, in criminal cases, the presumption of continuity will run counter to the presumption of innocence, in which event it must yield as the weaker of the two. (22 A. & E. Encycl. of L., 2d ed., 1237; Laws. Presump. Ev., rule 38.)
In order to be such a nuisance must exist for some length of time. The coordination of its elements must have an appreciable duration, and, in ordinary cases, continuity for a period considerably beyond the limits of the de minibus rule may be safely asserted.
“ If attention is directed to any point of time during the keeping, there is a probability, from the very fact of keeping then, that the s'ame condition has existed from some previous time, and will continue for some time into the future. And so, as to offenses which are in their nature continuing, evidence has often been received of a condition a little before or a little after the time within which the offense must be proved. And this rule has been repeatedly applied to prosecutions for unlawfully keeping intoxicating liquor with intent to sell it. The introduction of this kind of evidence should be carefully guarded, and the testimony should be confined to a time very near the time in question, or should be connected with it by evidence showing a continuance of the same condition through, the entire intervening period.” (Commonwealth v. Finnerty, 148 Mass. 162, 166, 19 N. E. 215.)
In the case just cited the evidence showed practically a continuing state of affairs for some thi’ee weeks following the date to which the principal evidence related.
In the case of Commonwealth v. Powers, 123 Mass. 244, the rule was extended to include the condition of a room where liquors, it was alleged, had been kept, as to appointments and fixtures, at eight o’clock of the morning following the day of the offense. In some cases more radical decisions have been made, but without discussion of the principle involved.
In the case now under consideration appellant might have been convicted of maintaining, a nuisance on the day the information was filed. Within a few minutes after the action was commenced he was found apparently in charge of a well-appointed saloon, personally dispensing beer. The evidence disclosing this fact should have gone to the jury without limitation. However, the fact that the court attempted to impose restrictions upon its. probatory force was to the advantage of the appellant and he cannot complain.
The simple fact of the existence of a nuisance at the place in question on Jauuary 10, 1903, after the information had been filed, or that fact combined with the fact that appellant was its keeper at that time, could not be related to the existence or keeping of a nuisance at the same place in June of the preceding year by mere force of a retrospective inference. However, on June 28,1902, appellant told his visitors that he was the proprietor of the saloon then running at the place in controversy, and assured them that he intended to keep right on running a saloon and selling beer. In the light of this declaration, the fact that in January following the same saloon' was running in apparently the same way, and that appellant was still there setting out beer, took on an aspect which the jury might consider without violating any of the rules of law or of logic. Therefore, under the evidence, the instruction as a whole was not prejudicial to the appellant.
The constitutionality of the law regulating the sale of intoxicating liquor in this state is assailed, and the argument is made that the sale of liquors for medical, mechanical and scientific purposes is a lawful and virtuous business, necessary for the welfare of the community ; that permits to carry on such business must, therefore, be obtainable as a matter of right; that the statute gives to probate judges an arbitrary and unrestrained authority to refuse permits for such purposes; that the vesting of such power in probate judges renders the statute void, and hence that no one can be punished for selling liquors without a permit. The opinion of-the supreme court of the United States in the case of Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, effectually disposes of this argument. Mr. Justice Harlan there shows, both by reason and upon authority, that the right to manufacture, sell and use articles of trade is conditioned upon the fact that such conduct does not deleteriously affect the rights of the public; that if any business becomes prejudicial to the welfare of the community, society has the right to. protect itself against such injurious consequences ; that the legislature of the state has the right to determine what measures are appropriate or needful for the protection of the public morals, health, and safety, and unless a statute has no real or substantial relation to those objects the courts cannot interfere. It is then shown that if, in the judgment of the legislature, the manufacture of intoxicating liquors for the maker’s own use as a beverage would tend to cripple or defeat the effort to guard the community against the evils attending the excessive use of such liquors, prohibition may follow. So, if the manufacture and sale of liquors for medical, mechanical and scientific purposes merely opens the door to the train of evils following upon the general use of intoxicants, they may be prohibited; and since they may be prohibited, they may be regulated in the manner prescribed by the statutes of this state.
(80 Pac. 987.)
SYLLABUS BY THE COURT.
1. Intoxicating Liquors — Legislature May Absolutely Prohibit Manufacture or Sale. Whenever, in its judgment, it is necessary for the protection of the health, morals, peace and safety of the people the legislature may prohibit the manufacture and sale of intoxicating liquors in this state for medical, scientific and mechanical purposes; and in the interest of the public welfare it may impose any conditions upon the conduct of those industries short of prohibition which it may deem proper.
2. -Right to Sell Not a Privilege or Immunity of Citizenship. The right to sell intoxicating liquors is not one of the privileges or immunities attaching to citizenship in the United States.
3. - State Constitution Affects Power of Legislature to Tol erate, Not to Restrain, Liquor Traffic. The amendment to the state constitution prohibiting the manufacture and sale of intoxicating liquors except for medical, scientific and mechanical purposes affected the power of the legislature to tolerate only, and did not abridge its power further to restrain or prohibit, the liquor traffic.
At the hearing of the motion for a new trial appellant made a showing to the effect that he had once suffered a conviction of the offenses charged in the information. His attorneys were ignorant of the fact until after the verdict had been returned, and appellant claimed he did not know of the importance of the former conviction until the trial had been concluded. It is conceded that the former conviction was not presented at the proper time, or in the proper manner, to obtain, as a matter of right, the protection it might have afforded, and such is the law; but it is argued that the district court might have used it as a basis of an exercise of its discretionary power to grant a new trial. Conceding this to be true, it was not an abuse of discretion to refuse a new trial.
The judgment of the district court is affirmed.
All the Justices concurring. | [
-15,
-22,
-56,
-33,
42,
-32,
110,
-98,
66,
-127,
-75,
115,
-23,
-6,
65,
121,
-30,
77,
80,
121,
-2,
-105,
23,
0,
-46,
-13,
-102,
-59,
-79,
105,
-11,
119,
74,
32,
10,
-35,
-90,
-62,
-63,
92,
-118,
5,
41,
-48,
91,
-48,
52,
59,
34,
10,
113,
15,
-45,
44,
92,
-61,
41,
60,
-37,
45,
112,
-72,
-99,
-43,
108,
22,
-127,
2,
-40,
-125,
72,
62,
-102,
113,
11,
-88,
115,
-124,
6,
116,
71,
-119,
13,
102,
99,
33,
53,
-21,
-24,
-87,
63,
59,
-107,
-89,
-80,
73,
66,
40,
-68,
-99,
126,
80,
3,
-14,
-6,
81,
-39,
56,
-115,
-118,
-106,
-79,
15,
57,
-122,
87,
-21,
-91,
33,
101,
-47,
118,
92,
-59,
114,
-101,
-114,
-76
]
|
The opinion of the court was delivered by
Atkinson, J.
This suit was commenced in the district court of Sedgwick county by the city of Wichita, a city of the first class, against the Missouri & Kansas Telephone Company, a corporation. In plaintiff’s amended petition it was alleged that defendant was wrongfully obstructing the streets and alleys of the city by placing therein its poles and wires and by maintaining and extending its telephone system without the authority, consent or permission of the city. An injunction to prevent a further obstruction of the streets and alleys was asked, and it was also asked that upon the final hearing the defendant be required to remove from the streets and alleys its poles and wires. To this petition defendant filed a demurrer, which was sustained. Plaintiff elected to stand upon its petition and judgment went for defendant.
The petition was voluminous. It set out in detail the claims of the city for the relief demanded, and also the claims made by the telephone company of its right to occupy and use the streets and alleys of the city with its poles and wires. The petition thus presenting the controversy was, in effect, a presentation of the respective claims of the parties upon agreed facts, and the sustaining of the demurrer was, in effect, the rendition of a judgment for defendant upon agreed facts.
Narrowed down, the respective claims of the parties are as follow: Plaintiff denied to the telephone company the right to occupy and use the streets and alleys of the city unless it should obtain such right through a franchise granted by the city council. Defendant claims the right under the statute to occupy and use the streets and alleys of the city, independent of any grant, consent or permission by the city council. We must look to the statute to determine the rights of the parties to this controversy. This calls for an interpretion of certain statutory provisions.
Section 74 of chapter 23, General Statutes of 1868 (Gen. Stat. 1901, §1342), confers upon telegraph companies the right to the occupancy and use of streets, in the following language :
“Corporations created for the purpose of constructing and maintaining magnetic telegraph lines are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state, in such manner as not to incommode the public in the use of such roads, streets and waters.”
The right to. the use of the streets and alleys of a city, conferred upon telegraph companies by said section 74, is, however, restricted by section 78 of chapter 23, General Statutes of 1868 ( Gen. Stat. 1901, § 1346), in the following language :
“The council of any city or trustees of any incorporated town or village through which the line of any telegraph corporation is to pass, may, by ordinance or otherwise, specify where the posts, piers or abutments shall be located, the kind of posts that shall be used, the height at which the wires shall be run, and such company shall be governed by the regulation thus prescribed; and after the erection of said telegraph lines, the council of any city or the trustees of any incorporated town or village shall have power to direct any alterations in th'e location or erection of said posts, piers or abutments, and also in the height at which the wires shall run, having first given such company or its agents opportunity to be heard in regard to such alterations.”
The legislature, by chapter 104, Laws of 1885, (Gen. Stat. 1901, §§1251, 1252), with the view of conferring upon telephone companies the same rights to the use of the streets and alleys as had been theretofore by article 8 of chapter 23 of the General Statutes of 1868 (Gen. Stat. 1901, §§1342-1348) extended to telegraph companies, enacted chapter 104, entitled “An act providing for the formation of telephone companies,” which reads :
“Section 1. Corporations for the construction and maintenance of a telephone line may be formed in the mode and manner prescribed by the general laws of this state for the creation of private corporations.
“Sec. 2. All such corporations shall have all the rights and powers conferred, and be subject to all the liabilities and duties imposed by the general laws of this state upon telegraph corporations.”
It is on the foregoing provisions of the statute that defendant bases its claim of right to occupy and use the streets and alleys of the city of Wichita with its poles and wires, independent of any grant, consent or permission by the city council.
It is contended by plaintiff that said chapter 104, Laws of 1885 (Gen. Stat. 1901, §§ 1251,1252), entitled “An act providing for the formation of telephone companies,” is unconstitutional, in that it fails to come within the requirement of section 16 of article 2 of the constitution, which reads :
“No bill shall contain more than one subject, which shall be clearly expressed in its title, and no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended, and the section or sections so amended shall be repealed.”
In view of the constitutional requirements the title to the act (Gen. Stat. 1901, §§ 1251, 1252; Laws 1885, ch. 104) is subject to criticism. With slight care in preparation language might have been employed which would have rendered it more explicit. The word “formation,” however, as used in the title of the act, contemplates not only the right to incorporate — the right to make application for, and obtain, a charter for the purpose of engaging in the telephone business — as claimed by counsel for plaintiff, but comprehends all the rights that extend to a corporation authorized to engage in the telephone business. Thus interpreting the word “formation,” the title of the act is within the constitutional requirement that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” It embraces but one subject — that of telephone companies. Comprehending, as it does in the use of the word “formation,” all the rights conferred upon a telephone company by its charter of incorporation, the subject is clearly expressed in the title of the act.
In The State v. Barrett, 27 Kan. 213, in passing upon the sufficiency of the title to the prohibitory act, against which the claim was made that it failed to come within the requirement of section 16 of article 2 of the constitution, the court said :
“It is not necessary that the title to an act should be a synopsis or abstract of the entire act in all its details; it is sufficient if the title indicates clearly, though in general terms, the scope of the act.”
That the title to said chapter 104 is sufficient finds support in the following cases : The State v. Wilcox, 64 Kan. 789, 68 Pac. 634; Wilson v. Clark, 63 id. 505, 65 Pac. 705; Blaker v. Hood, 53 id. 499, 36 Pac. 1115, 24 L. R. A. 854; The State, ex rel., v. Kansas City, 50 id. 508, 521, 31 Pac. 1100; The State v. Stunkle, 41 id. 456, 21 Pac. 675; The State, ex rel., v. Cross, 38 id. 696, 17 Pac. 190; Comm’rs of Cherokee Co. v. State, ex rel., 36 id. 337, 13 Pac. 558.
Chapter 104 of the Laws of 1885 does not amend the general telegraph act (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§1342-1348). In general terms, the act of 1885 conferred upon telephone companies the rights and powers extended to telegraph companies by the general laws of the state, subject to all the liabilities and duties imposed by the general laws of the state upon telegraph companies. The fact that the general laws of the state applicable to telegraph companies were by said chapter 104 conferred upon telephone companies, by reference thereto, without embodying in the act the language of the general laws applicable to telegraph companies, is urged by plaintiff as a failure to bring the act within the requirement of section 16 of article 2 of the constitution. The act of 1885 added nothing to, and took nothing from, the general laws applicable to telegraph companies. It therefore constituted no revivor of, or. amendment to, the general laws applicable to telegraph companies. Being no revivor thereof, or amendment thereto, but being in fact an act applicable to telephone companies only, and, as applicable to telephone companies, distinct within itself, it does not come within the requirement of section 16 of article 2 of the constitution, providing that no law shall be revived or amended, unless the new act contain the entire act revived, or the section or sections amended.
Counsel has called our attention to cases from the courts of other states holding it unconstitutional to incorporate a provision into an act of the legislature by reference to other acts. An examination of the cases cited discloses that the constitutions of- the states from which the cases are cited contain a provision forbidding such legislation. Our constitution contains no such provision. However, legislation of that kind is not to be commended.
It is the claim of plaintiff that the charter act of cities of the first class, chapter 37, Laws of 1881, repealed sections 74 and 78 of chapter 23, General Statutes of 1868 (Gen. Stat. 1901, §§ 1342, 1346), by •a general repealing clause. It is pointed out that section 122 of the charter act (Laws 1881, ch. 37) is a general repealing clause. As has been said by this court and other courts, a general repealing clause in an act is a legislative expression which carries with it a repealing effect only where by law the effect would be the same without such repealing clause. (Keirsey v. Comm’rs of Labette Co., 30 Kan. 576, 2 Pac. 864; Hornaday v. The State, 63 id. 499, 65 Pac. 656; Turner v. State, 111 Tenn. 593, 69 S. W. 774.) In Turner v. State, supra, it was said :
“The last section of the act contains a general clause repealing all laws in conflict with this act. But the repealing clause found in the last section of this act has no legal effect whatever. The act is precisely the same in legal import and in point of validity as it would have been without that clause, whose presence makes the act neither more nor less a repealing law. State v. Yardley, 95 Tenn. 558, 32 S. W. 481, 34 L. R. A. 656; City of Memphis v. American Exp. Co., 102 Tenn. 341, 52 S. W. 172. The words of the caption, viz., ‘and to repeal all laws in conflict with this act/ have no greater virtue or operation in law, not being followed in the body or enacting part of the bill with any repealing provision. Such words cannot of themselves, and without more, give character to the act, but are to be regarded as mere surplusage.” (Page 606.)
With a general repealing clause in an act the intention to repeal must also be manifest in the legal effect of the latter act upon the former one. The test of a repeal should be, Are the two acts inconsistent, or repugnant, in their provisions ? If so the former must give way to the latter in so far, at least, as the two acts are inconsistent. If not inconsistent both should stand and be construed together.
It is also the claim of plaintiff that so much of the general telegraph act as is embodied in section 74 of chapter 23, General Statutes of 1868, extending to' telegraph companies the right to occupy and use the streets for its poles and wires, has been repealed by implication. It is pointed out that subdivision 22 of section 11 of the city charter act (Laws 1881, ch. 37 ; Gen. Stat. 1901, §717 et seq.) specifically gave the power “to grant the right of way for the erection of telegraph or telephone posts and wires along and upon any of the streets and alleys” of the city. It is claimed by plaintiff that this section operated as a repeal by implication, and in effect eliminated the word “streets” from said section 74 of chapter 23, General Statutes of 1868. Subdivision 22 reads :
“Twenty-second : To grant the right of way for the erection of telegraph, electric light or telephone posts and wires along and upon any of the streets, alleys or -ways of the city, and change, modify and regulate the same.”
To this claim we cannot agree. Nowhere in the charter- act is reference made to the general laws relating to telegraph companies, nor is there any expression which may be fairly said to repeal, even by implication, the general telegraph laws. Unquestionably the legislature, by subdivision 22, in the use of the phrase “to grant the right of way,” contemplated the granting of something. What it was the intention to grant is explained in the remaining words of the phrase. The words “the right of way” define the contemplated grant. We conclude that, as applied to telegraph companies and telephone companies, the right of way to which the grant applies is the right of the city to determine and designate the streets and alleys which may be occupied and used by the posts and wires of the companies. Thus construed there is no conflict between the charter act (Laws 1881, ch. 37) and the general laws applicable to telegraph companies. (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§1342-1348.)
It would hardly be reasonable to presume that the legislature, in enacting a charter for cities of the first class, by the use of the word “grant” in connection with the term “telegraph company” had-in contemplation the repeal of a general law or any part thereof applicable to telegraph companies, without making any specific mention thereof, and with the use of no language that may be fairly said to contemplate a re peal. Under the well-known rules of construction we should give to the word “grant,” as used in subdivision 22 of the charter act, a construction, if reasonably possible to do so, which will give effect to both the telegraph act (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§ 1342-1348) and the city charter act (Laws 1881, ch. 37). Repeals by implication are not favored. (Hornaday v. The State, supra; Kansas Breeze Co. v. Edwards, 55 Kan. 630, 40 Pac. 1004; Keirsey v. Comm’rs of Labette Co., supra; The State v. Bancroft, 22 Kan. 170, 211; The State, ex rel. Tholen, v. Farrell, 20 id. 214; The State v. Young, 17 id. 414; Frost v. Wenie, 157 U. S. 46, 15 Sup. Ct. 532, 39 L. Ed. 614.)
It is urged by plaintiff that if a construction be placed upon subdivision 22 of section 11 of the charter act (Laws 1881, ch. 37) which gives to the word “grant,” as therein contemplated, a limitation, such limitation should apply only to telegraph companies ; that it should not be applied to telephone companies, as they are not by specific mention included in article 8 of chapter 23, General Statutes of 1868 (Gen. Stat. 1901, §§ 1342-1348). In further support of its position plaintiff says that if a limitation be imposed upon telephone companies in the construction of subdivision 22 of the charter act, the same limitation upon the term ‘ ‘ grant ’ ’ must be placed upon electric-light companies, since the three companies are named together in subdivision 22.
Telegraph companies and telephone companies are both public utilities used for the transmission of intelligence between distant places. The use of poles and wires, with electricity as the medium of transmission, is the same in both. To change one to the other is only to change the apparatus at the termini. Substantially the same public function is being executed in substantially the same way by corporations employing either means of communication. There is really no difference in character between telegraph companies and telephone companies. The same language employed to extend rights to a telegraph company, with only the change of name, may be used to confer rights upon telephone companies. Because of this similarity in construction and use the courts of many of the states have held general legislative enactments extending rights to telegraph companies to include alike, and apply as well to, telephone companies. (H. R. T. Co. v. W. T. & R. Co., 135 N. Y. 393, 32 N. E. 148, 17 L. R. A. 674, 31 Am. St. Rep. 838; Chesapeake & Potomac Teleph. Co. v. Balto. & Ohio Teleg. Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; Duke v. Central New Jersey Telephone Co., 53 N. J. L. 341, 21 Atl. 460, 11 L. R. A. 664; Chamberlain v. Iowa Telephone Co., 119 Iowa, 619, 93 N. W. 596; S. A. & A. P. Ry. Co. v. S. W. Tel. & Tel. Co., 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884; P. Telephone Co. v. B. Turnpike Road, 199 Pa. St. 411, 49 Atl. 284; Northwestern T. E. Co. v. City of Minneapolis, 81 Minn. 140, 86 N. W. 69, 53 L. R. A. 175; The Wisconsin Telephone Co. v. The City of Oshkosh, 62 Wis. 32, 21 N. W. 828.)
The legislature undoubtedly had in mind this similarity between telegraph companies and telephone companies when enacting subdivision 22 of the charter act (Laws 1881, ch. 37). This recognition by the legislature of the similarity between the two companies was made very apparent when, by chapter 104, Laws of 1885, there was conferred upon telephone companies all the rights given by statute to telegraph companies. There is not this similarity in the con strucfcion, operation and use of electric-light companies, although all are public utilities, and are now classed among the necessities of modern city life. Undoubtedly the legislature could have extended to electric-light companies the same rights and limitations given to telegraph companies and telephone companies. It has not done so.
The main controversy in the case, as presented in the record, was the effect of subdivision 22 of section 11 of the charter act (Laws 1881, ch. 37) on the rights of telegraph companies and telephone companies under the statute to occupy and use the streets and alleys of the city of Wichita. Having held that the effect of the phrase “to grant the right of way,” contained in subdivision 22, when construed with section 74 of the general telegraph act (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§ 1342-1348), gave to the city the right to determine and designate the streets and alleys which may be occupied and used by the posts and wires of telegraph companies and telephone companies ; that chapter 104, Laws of 1885, (Gen. Stat. 1901, §§ 1251, 1252) was constitutional and operative, and that the charter act (Laws 1881, ch. 37) did not repeal the general telegraph act (Gen. Stat. 1868, ch. 23, art. 8; Gen. Stat. 1901, §§ 1342-1348), or any part thereof, it may be asked, What are the further rights of the parties under the statute ? As the case is presented, we are not called upon to define in detail the rights of the city, or the rights of the telephone company, under the statute. We shall not undertake to discuss in detail the effect of the provisions of the general telegraph act (Gen. Stat. 1868, ch. 23, art. 8), the later charter act of cities of the first class (Laws 1903, ch. 122), or any of the statutory provisions that may operate to determine their respective rights. It can be said, however, that the general police powers of cities of the first class may be exercised by such cities over telegraph companies and telephone companies within their corporate limits, together with such regulations as are by statute conferred upon cities of the first class. The question whether the ordinances of the city of Wichita contained in the record are operative becomes immaterial in the view we have taken of the case.
The judgment of the district court is affirmed.
All the Justices concurring. | [
-80,
108,
-8,
-34,
10,
-23,
16,
-112,
57,
-79,
-92,
83,
-83,
-63,
-123,
113,
-45,
-67,
81,
107,
-59,
-30,
79,
107,
-98,
-45,
-45,
-33,
-8,
91,
-28,
-50,
76,
32,
74,
-107,
70,
-64,
77,
-100,
-50,
7,
-119,
109,
-47,
-61,
36,
105,
50,
67,
113,
13,
-9,
40,
24,
-61,
-88,
60,
-37,
-120,
-109,
-8,
-88,
-41,
-4,
22,
2,
4,
-104,
-123,
-50,
44,
-112,
49,
28,
-88,
115,
-90,
-122,
116,
13,
-39,
12,
32,
99,
33,
37,
-81,
-8,
-68,
6,
-40,
-115,
-90,
-92,
40,
33,
5,
-66,
-107,
100,
20,
71,
-2,
-9,
4,
19,
108,
11,
-113,
-12,
-77,
15,
-16,
-106,
83,
-21,
-93,
16,
113,
-54,
-76,
95,
67,
22,
27,
-114,
-3
]
|
The opinion of the court was delivered by
William R. Smith, J. :
The appellant was charged with the crime of grand larceny, tried, and convicted. After overruling a motion for a new trial the court sentenced him to hard labor in the penitentiary. He was allowed by the court sixty days within which to make and serve a bill of exceptions. The court fixed' a bond in the sum of $600, upon the execution and approval of which the judgment of the court was to be stayed, pending the preparation of the bill of exceptions. A bond signed by the appellant and three sureties was given and approved on May 12, 1904. The bill of exceptions was allowed and signed on J une 29, following. On August 18, notices of appeal to this court were served, and a bill of exceptions and transcript filed here on September 16, 1904. On September 7, 1904, the county attorney of Elk county made an application to the district judge for an order directing the sheriff to convey Scott to the peniten tiary. A hearing of the application was set for September 13, with directions that notices of it be served on defendant and his attorney, which was done.
On the day set Scott did not appear in person or by counsel, and it was found that by such failure he had violated the conditions of his bond, which were that he would keep and observe all orders made by the court with reference to his custody, and, upon the order of the court‘or judge, surrender himself into the possession of the sheriff, and do and perform such other things as might be required of him pending the appeal. The bond was declared forfeited.
In support of a motion filed in this court by the state to dismiss the appeal, it is made to appear that, after Scott’s conviction in this case, a complaint was filed against him for cattle stealing; that a warrant was issued for his arrest, but he was not found by the sheriff. It has been made to appear also that one of the bondsmen informed the sheriff that relatives of Scott had raised money to pay the amount of the bond given pending the preparation of the bill of exceptions.
The appellant is a fugitive from justice. He is not serving his sentence nor has he given bond to stay the execution of the judgment imposed by the trial court pending the appeal. Courts have uniformly declined to hear parties similarly situated. (Commonwealth v. Andrews, 97 Mass. 543; People v. Tremayne, 3 Utah, 331, 3 Pac. 85; Whart. Crim. Pl. & Pr., 8th ed., §774a; People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; Smith v. United States, 94 U. S. 97, 24 L. Ed. 32; Bonahan v. Nebraska, 125 id. 692, 8 Sup. Ct. 1390, 31 L. Ed. 854.) In the three cases last cited writs of error sued out to reverse judgments of conviction were dismissed conditionally, it being ordered that if the appellants, who were fugitives from justice, should appear within a time fixed by the court their appeals would be heard. In a case not reported this court made a like order. Counsel for appellant, though duly served with notice of the motion to dismiss, has offered no assurance that his client intends to appear at any time. The action of his bondsmen in arranging to pay the amount of their liability indicates that defendant has no intention of returning.
In People of the State of N. Y. v. Genet, 59 N. Y. 80, 82, 17 Am. Rep. 315, it was said :
“In criminal cases there is no equivalent to the technical appearance by attorney of defendant in civil cases, except the being in actual or constructive custody. When a person charged with felony has escaped out of custody, no order or judgment, if any should be made, can be enforced against him ; and courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent of the person charged with crime.
“The provisions of the statutes, giving to defendants in criminal cases the right to make a bill of exceptions, are not so absolute as to displace all the other principles which belong to criminal proceedings, but must be taken in subordination to them.
“We think they do not require the courts to encourage escapes and facilitate the evasion of the justice of the state, by extending to escaped convicts the means of reviewing their convictions.”
The appeal is dismissed.
All the Justices concurring. | [
-16,
-24,
-76,
-97,
58,
-32,
42,
-104,
83,
-29,
-90,
83,
-23,
70,
0,
97,
49,
127,
85,
105,
-34,
-105,
22,
-63,
-14,
-13,
27,
-43,
-77,
88,
-20,
85,
8,
50,
2,
93,
102,
-120,
-63,
-40,
-52,
-127,
-87,
-19,
-15,
10,
56,
47,
22,
10,
113,
30,
-13,
46,
24,
-22,
41,
41,
75,
63,
-40,
-8,
-69,
-49,
77,
16,
-77,
7,
-100,
7,
88,
46,
-104,
49,
0,
-8,
115,
-106,
-122,
-43,
111,
-103,
44,
110,
98,
1,
93,
-49,
-120,
-40,
46,
-66,
-115,
-25,
-112,
88,
74,
76,
-74,
-103,
119,
84,
-90,
122,
-26,
-116,
81,
44,
1,
-50,
-70,
-125,
-115,
56,
-106,
88,
-45,
-96,
32,
113,
-52,
-30,
76,
71,
113,
-101,
-113,
-7
]
|
The opinion of the court was delivered by
Burch, J. :
Frank A. Bush was convicted of maintaining a nuisance in Doniphan county. The information charged that he kept, and assisted in keeping, a place where intoxicating liquors were kept for sale and were sold, and where persons resorted for the purpose of drinking intoxicating liquors, all contrary to law. The defendant moved to quash the information, and objected to the introduction of any evidence under it, on the ground of its duplicity.
The statute provides that every person who “maintains or assists in maintaining” such a nuisance shall be punished. (Gen. Stat. 1901, § 2493.) If , the conduct of an individual result in the existence of a nuisance at a given place at a given time he is guilty of but one offense, whether he act alone or assist another, and the charge that he kept and assisted in keeping a single place at a certain time does not multiply his crime. The conjunctive enumeration of several capacities in which a keeper may act, following the language of the statute, does not constitute duplicity; but if maintaining a a nuisance, and assisting in maintaining a nuisance, of the character described, be separately punishable under certain circumstances, both acts may be charged in a single count when committed by a single person in respect to the same place at the same time. (The State v. Schweiter, 27 Kan. 499.) Therefore, both the motion and the objection were properly overruled.
Many errors are assigned relating to the introduction of evidence, all turning upon the proposition that the defendant was not connected with the maintenance of the nuisance described in the information, and a greater part of the appellant’s brief is occupied with an argument upon that subject which might well have appeared plausible to the jury trying the case. But the record abundantly proves that appellant, who resided at Belleville, was running the organization known as the Kansas Utopian Association, and that under its cover and as a part of its scheme of operation a saloon called a “lodge ” was running at Denton. The record further shows that, notwithstanding the ■ fact the charter for the lodge at Denton was not ac-.. tually issued until its barkeeper had been arrested, notwithstanding the fact a witness whose name already appears on the records of this court in connection with the Utopian project testified that appellant was only a hired man, notwithstanding the fact appellant avoided personal presence in Doniphan county, and notwithstanding the fact appellant may not have been informed of all the details of the management of the Denton branch, there was nevertheless nothing chimerical, nothing “Utopian,” about his connection with that saloon. He acted toward it in the relation of primary and cherishing cause, and the jury were fully justified in brushing aside all sophistical considerations and finding what was the plain fact — that appellant’s business consisted in assisting in maintaining a common liquor nuisance at Denton.
Many errors are assigned relating to the admission of expert evidence to prove appellant’s signature on the back of checks remitted to him by the barkeeper at Denton as “dues” from the “lodge” there. The witnesses were qualified and the evidence was competent.
The court instructed the jury as follows :
“If you find from the evidence that J. 0. Brownell kept and maintained a place as described in the information, for the purposes therein alleged, but in the absence of the defendant, Frank A. Bush, you must further find that it was so kept with the knowledge and consent of Frank A. Bush, or that the defendant counseled, aided or abetted in some manner in so conducting the place, or you must find the defendant not guilty.”
A portion of this instruction is of doubtful propriety, because it permits the inference that appellant might be convicted merely because of his knowledge of, and consent to, the existence of the nuisance complained of. (The State v. Douglass, 44 Kan. 618, 26 Pac. 476.) The record, however, reveals a request by the appellant for an instruction containing the objectionable matter in the identical words adopted by the court; hence, he cannot complain. The latter portion of the instruction added the words “counseled” and “abetted” to the word “aided” in appellant’s request. This, however, did not modify the matter preceding the disjunctive word “or,” and the failure of the court to use appellant’s very language in the precise form proposed concerning the alternative matter did not prejudice him. (Reed v. Golden, 28 Kan. 632, 42 Am. Rep. 180.)
All of the errors assigned, thirty-two in number, have been examined, and none of them presents anything sufficiently serious to require a reversal of the judgment of the district court'; therefore it is affirmed.
All the Justices concurring. | [
-79,
-18,
-35,
-33,
10,
-32,
58,
126,
96,
-95,
-12,
119,
-23,
-40,
68,
33,
-5,
109,
84,
121,
-57,
-106,
23,
-127,
-14,
-5,
-37,
-43,
-67,
77,
-10,
-44,
74,
52,
-118,
-43,
38,
74,
-47,
-36,
-114,
5,
9,
-47,
-47,
-48,
52,
123,
-124,
10,
117,
31,
-29,
58,
28,
-57,
45,
44,
75,
-83,
113,
-15,
-98,
-35,
110,
6,
3,
2,
-68,
-121,
88,
63,
-102,
21,
-127,
104,
115,
-76,
4,
116,
7,
-103,
-115,
-94,
98,
33,
49,
-85,
-88,
-119,
31,
-77,
-115,
-89,
-80,
73,
67,
45,
-106,
-99,
117,
52,
7,
-14,
-28,
21,
29,
124,
11,
-118,
-10,
-73,
-49,
52,
-122,
23,
-21,
33,
33,
97,
-51,
-26,
92,
71,
80,
-101,
-116,
-108
]
|
The opinion of the court was delivered by'
Smith, J.:
The case was tried and proceeded to judgment in the court below on the theory that the obstruction to the alley was a permanent appropriation of it by the railroad company. Such appropriation involved the weakening of the lateral support of the rear end of the lots abutting on the alley by reason of an excavation to the depth of eighteen feet, made to accommodate the railroad-track. Entering into the verdict, as disclosed by the findings of the jury, was the element of damages caused by the impairment to the lateral support of the land afforded by the soil adjacent thereto which the lots naturally had before the excavation was made. An allowance was made for the future cost of building a stone wall at the back of the lots. The jury awarded no damages because any portion of the lots had slipped or fallen into the excavation.
It is a general rule, to which we have found no exception, that a landowner does not suffer damages recoverable at law for injury to lateral support of his property until the earth is so much disturbed that it slides or falls. The principle was well stated in Schultz v. Bower, 57 Minn. 493, 496, 59 N. W. 631, 47 Am. St. Rep. 630, 632, thus :
“Where one, by digging in his own land, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall.”
A leading case on the subject was decided in the house of lords, in which it was held that the statute of limitations began to run on an action for damages based on impairment of lateral support of land not from the time of excavation but from the actual occurrence of. the mischief, which in that case was the subsidence of the earth by the working of a mine under the plaintiff’s land. (Backhouse v. Bonomi, 1 B. & S. 970.) Counsel in the case referred to argued that the plaintiffs were entitled to recover prospective damages for any loss which they could have shown would arise, or might reasonably be expected to arise, from the withdrawal of lateral support. It was decided otherwise. The following cases are in point: Williams v. Kenney, 14 Barb. 629; Ludlow v. The Hudson River Railroad Co., 6 Lans. 128; Smith v. Seattle, 18 Wash. 484, 51 Pac. 1057, 63 Am. St. Rep. 910; Fremont, E. & M. V. R. Co. v. Harlin, 50 Neb. 698, 70 N. W. 263, 36 L. R. A. 417, 61 Am. St. Rep. 578. See, also, section 590 of Jones on Easements.
While it was competent for plaintiff below to prove the market value of the lots before and after the appropriation of the alley to show the extent of the injury sustained by him, yet his damages, under the uniform decisions of this court in like cases, must be confined to the diminution in value occasioned by the peculiar and special injury sustained by being cut off from access to, and egress from, the land. Decrease in market value occasioned by an injury apart from the loss of use of the alley cannot be shown by bringing into the case an element of damage for which no action would lie. The cases of L. N. & S. Rly. Co. v. Curtan, 51 Kan. 432, 33 Pac. 297, and C. B. U. P. Rld. Co. v. Andrews, 26 id. 702, cited by counsel for defendant in error, do not sustain their views on the right of the lotowner to recover for injury to lateral support.
Plaintiff in error asks that the judgment of the court below be modified by a direction that the sum allowed for damage to lateral support be eliminated from it.. A review of the particular questions of fact submitted to the jury, and their answers thereto, satisfies us that they are so conflicting that no judgment for either party can be sustained. The jury found that the difference in the market value of the lots before and after the appropriation was $950 ; that they had depreciated that much. On this finding judgment must go for plaintiff below, and such finding seems to have followed a proper submission of the case to the jury, for the court did not instruct that damages for injury to lateral support might be recovered, and, in the absence of evidence, we cannot say there was any proof of it. The jury allowed $750 for injury to lateral support. This conflicts with the finding as to-market value before and after appropriation, and is at variance with the theory on which the case was-seemingly tried, inasmuch as there was nothing in the instructions authorizing a recovery for damage to lateral support, and none of the evidence is before us.
It may be said that the jury, under the theory on which the case was tried, did not and could not consider the damage to lateral support, and did not mean that they had when they answered that the general market value of the lots was $9000 immediately before the appropriation and $8050 immediately afterward. The finding that an allowance of $750 was made for destruction of lateral support is in direct- conflict with the findings respecting market value, when we consider that the findings as' to value were made without any evidence before the jury regarding the question.
The judgment of the court below will be reversed and a new trial granted.
Johnston, C. J., Cunningham, Greene, JJ., concurring. | [
-12,
120,
-100,
-34,
-102,
106,
42,
-40,
65,
-91,
-91,
87,
-51,
11,
16,
49,
-93,
57,
-48,
43,
86,
-29,
71,
-109,
-106,
-45,
115,
-51,
-72,
77,
71,
87,
76,
32,
66,
-107,
-26,
-56,
73,
88,
-114,
63,
-120,
109,
-7,
32,
60,
62,
84,
79,
17,
-102,
-13,
46,
25,
-61,
41,
44,
111,
61,
80,
-8,
-66,
-124,
125,
4,
33,
7,
-66,
-61,
-56,
26,
-112,
53,
1,
-24,
115,
-92,
-105,
124,
77,
-101,
12,
-30,
98,
1,
101,
39,
120,
-104,
6,
-10,
-115,
-90,
-128,
24,
1,
119,
-65,
-105,
124,
64,
-90,
110,
-17,
77,
89,
44,
5,
-117,
-14,
-30,
-49,
120,
-100,
3,
-53,
-93,
49,
96,
-54,
-94,
76,
69,
114,
-97,
15,
-56
]
|
The opinion of the court was delivered by
Cunningham, J. :
The defendant in error was plaintiff below. It commenced an action in replevin in Kearny county, Kansas, against the plaintiffs in error, setting out in its petition the execution and delivery to it by the plaintiffs of their promissory note secured by a chattel mortgage on 515 head of cattle of various kinds, all branded alike. It further alleged that the note was long past due and that it was entitled to the immediate possession of the mortgaged property, and that “defendants unlawfully detain and keep plaintiff out of the possession of said property, although demand has been made for the same.” Attached to the petition were copies of the note and the mortgage mentioned therein, and the petition was duly verified. At the time of the filing of the petition an affidavit in replevin was filed which alleged that the plaintiff was the owner, and entitled to the immediate possession, of the property described in the petition. An order of delivery was issued to the sheriff, and under it the property was taken and delivered to the plaintiff. Some three months after the filing of the petition, and after the filing of several dilatory motions by the defendants, they were permitted to file their answer. The plaintiff in the meantime shipped the cattle to Kansas City and disposed of them upon the market there.
The defendants’ answer contained, first, a general denial; second, they admitted the making of the note and mortgage in quest’on, and that the note was past due ; but, by way of counter-claim, they charged that, the cattle had been taken by the plaintiff under the order of delivery issued in the case and shipped to Kansas City, where they were sold to some ten different buyers ; that these cattle could have been sold at. the time they were shipped for a much greater sum in the county of Kearny than they were at Kansas City ; that “said plaintiff did not act in good faith nor-use reasonable care and diligence in shipping said cattle to Kansas City, Mo. ; that said plaintiff well knew that the Kansas City market was a very poor-market to ship cattle to at that time, and that said cattle could be sold at a much better advantage inKearny county, Kansas ; that the shipping and selling of said cattle in Kansas City worked a great hardship and an injustice to the defendants in this, that-said indebtedness amounted to about $11,500 when said cattle were taken by the sheriff of Kearny county, and that they only netted in Kansas City, Mo.,. $7727.44, leaving a deficiency of about $3773” ; and, further, that the cattle were of the reasonable value-of more than $14,000 in Kearny county at the time of their seizure and sale. The defendants prayed judgment for the return of the cattle, or, in case the same could not be had, for the sum of $3553, the difference between the mortgage debt and the value of the> property in Kearny county.
In the mortgage it was provided that until default should be made the possession of the property should remain with the mortgagors, and that upon default the mortgagee might take possession of the property and sell the same “at public auction, or private sale, with or without notice, at any convenient place, or after transportation to the Kansas City stock-yards, Kansas City, Kan., or Kansas City, Mo., or the stockyards at South St. Joseph, Mo.”
Thereafter, upon motion of the plaintiff, it was held by the court that this answer stated no defense to plaintiff’s petition, and the court thereupon adjudged that plaintiff was at the time of the commencement of the action entitled to the immediate possession of the property described in its petition, and that the defendants should pay the costs of the action. It is to reverse this judgment that the plaintiffs in error are now here.
One of the defendants’ dilatory motions was 'to quash and set aside the service of the order of delivery because of the insufficiency of the replevin affidavit, it alleging ownership of the property, and not that plaintiffs had a special ownership or interest therein. We think there was no error in the court’s refusal to sustain this motion. The affidavit in itself was sufficient in form, and in a very important sense was literally true. Section 4250 of the General Statutes of 1901 provides that, in the absence of a stipulation to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right to possession. This mortgage, though it contained a provision that the mortgagor might retain possession of the property until default in the performance of its conditions, contained no provisions whatever changing the status of the title as created by the statute. Besides this, the entire transaction, with the nature of the plaintiff’s claim under its chattel mortgage, was shown in its petition, so that the defendants were clearly advised of the claim of the plaintiff.
The further claim of the plaintiffs in error is that the condition of the pleadings did not warrant the rendition of a judgment against them, without proof: (1) Because their general denial put in issue plaintiff’s allegation of a demand, and this being so it ought not to have recovered without proof of such demand. The general denial is modified and limited by the allegations contained in the second defense, which is denominated a counter-claim. Had the general denial stood alone, the plaintiff would have been required to prove demand. This counter-claim,-however, prayed a return of the property. This could only be claimed upon the theory that the plaintiff was not entitled to the possession of the cattle at the time of the commencement of the action, and that the defendants were. It has often been held by this court that no demand and refusal need be shown where the defendant places his defense upon his right of possession at the time of the commencement of the action. (Raper v. Harrison, 37 Kan. 243, 15 Pac. 219; Schmidt v. Bender, 39 id. 437, 18 Pac. 491; Greenawalt v. Wilson, 52 id. 109, 34 Pac. 403.) (2) Because the counter-claim states a right of recovery in the defendants which could be availed of in this action, and, hence, that they had a right to be heard thereon. This counter-claim prayed for the recovery of the excess of the alleged value of the cattle in Kearny county over the amount due on defendants’ note, on the theory either that the plaintiff had no right to ship and sell on the market at Kansas City, although the chattel mortgage permitted it so to do, or that in so doing it did not act in good faith. But in either view this relief could not be granted the defendants in this action. The only-issue in a replevin action, in the first instance, is-whether the plaintiff is entitled to the possession of the replevied property at the time of the commencement of the action. (Wilson v. Fuller, 9 Kan. 176; Rucker v. Donovan & Feiferlich, 13 id. 251, 19 Am. Rep. 84; Brown v. Holmes, 13 id. 482; Town of Leroy v. McConnell, 8 id. 273.) Another and entirely distinct issue could not be injected into the case by the pleading here filed.
To be sure, under section 185 of the code (Gen. Stat.. 1901, § 4619), the value of the property may be ascertained in the replevin action in a case where it has-been delivered to the plaintiff and upon final trial its-l’eturn to defendant is adjudged. This is for the purpose of requiring the payment of such value in case-a retuxm of the property itself cannot be had. The language of this court in Denny v. Faulkner, 22 Kan. 89, 100, is cited by plaintiffs in error in support of their contention. That language, however, was used-in reference to a case arising under section 185, and. not under facts such as are here found.
We are also cited to the case of Deford v. Hutchison, 45 Kan. 318, 25 Pac. 641, 11 L. R. A. 257, as holding the doctrine that a counter-claim in the nature of the one here pleaded may be availed of by a defendant.. This claim is not borne out by the facts of that case.. It was there sought by the defendant in possession to-defeat plaintiff’s right of recovery by showing that subsequently to the execution of the mortgage the plaintiff had agreed to purchase the mortgaged propei'ty, and thus extinguish the debt. Of course, this claim went directly to the plaintiff’s right of recovery, for if there was no debt there was no such right. We are not now deciding that the defendants’ counterclaim set out no cause of action against the plaintiff, but we do decide that it contained no defense to plaintiff’s right of recovery in this action of replevin.
Some other suggestions of error are found in the brief of plaintiffs in error. We have examined them all and find nothing of substance.
Discovering no error in the record, we affirm the judgment of the court below.
All the Justices concurring. | [
-16,
108,
-79,
61,
10,
96,
42,
-118,
67,
-93,
54,
83,
-23,
-62,
5,
105,
118,
61,
-60,
105,
70,
-77,
7,
-64,
-46,
-14,
-111,
-43,
-79,
79,
-28,
-41,
77,
16,
74,
21,
-26,
-62,
-63,
92,
-82,
39,
9,
-27,
-7,
8,
60,
41,
18,
72,
49,
-115,
-13,
42,
57,
67,
105,
40,
-21,
125,
-56,
-15,
-69,
-123,
95,
22,
17,
6,
-110,
5,
-40,
62,
-112,
49,
3,
-24,
114,
-74,
-122,
116,
45,
-119,
40,
38,
98,
33,
92,
-51,
120,
-120,
46,
95,
-115,
-26,
-112,
88,
99,
32,
-106,
-99,
124,
86,
7,
124,
-1,
5,
-99,
108,
7,
-6,
-112,
-77,
15,
60,
-102,
-117,
-21,
-90,
49,
113,
-59,
-96,
89,
71,
56,
27,
-114,
-67
]
|
The opinion of the court was delivered by
Mason, J. :
Jacob Zubick was wounded by a bullet from a revolver fired by Milton Kittle in the course of a controversy between them. Kittle was arrested, tried and convicted upon a charge of assault with intent to kill. The evidence of the state tended to show that the defendant was the aggressor in the encounter and to sustain the entire charge against him. His own testimony was to the effect that he was assailed by Zubick and others, that he acted wholly on the defensive, and that he fired only for the purpose of frightening his assailants, in order to enable him to escape from them. In behalf of the defendant an instruction was asked permitting a finding that he was guilty of assault and battery only. This was refused, the trial court holding that, under the evidence, either the defendant was guilty of the felony charged — assault with intent to kill — or he was innocent of any public offense. Upon an appeal this refusal is urged as error.
It is well settled that, if upon any reasonable theory tenable under the evidence a defendant may be held to be guilty only of an offense of a grade inferior to that charged and included within it, it is error to refuse to instruct upon such inferior offense, when the attention of the court is called to the matter. (The State v. Clark, 69 Kan. 576, 77 Pac. 287.) The present inquiry, therefore, is whether the evidence was open to any reasonable construction consistent with a finding that defendant was not guilty of the felony charged, but was guilty of a misdemeanor included within it. In behalf of the state it is argued that the defendant’s own version of the affair was either true or false; that if it was true he was innocent of all offense and should have been acquitted, while if it was false he was guilty to the full extent of the accusation against him. The fallacy of this argument lies in the assumption that the defendant’s narrative must be accepted as either wholly false or wholly true, whereas,, in fact, it may have been a combination of truth and falsehood.
The shooting was admitted. The state charged, and; in order to convict of a felony was required to prove,, that it was unjustifiable, and also that it was done with the specific intent to kill Zubick. The defendant asserted that it was done in self-defense, and without any intention to kill, or even to hit, Zubick; that is, he denied that the shooting constituted an assault,, and he denied that it was done with intent to kill. It is conceivable that, if opportunity had been given, the jury might have found that the defendant was the aggressor, that he shot without lawful excuse, for the purpose of frightening his antagonists, but that he had no intention of killing any one ; or, what is the same thing in effect, that the state had proved beyond a reasonable doubt that the defendant had committed an assault upon Zubick, but had not proved beyond a reasonable doubt that he did so with the intent to kill him. Such conclusions would require a verdict of guilty of a misdemeanor only. (The State v. Triplett, 52 Kan. 678, 35 Pac. 815.) If thedefendant hadavowed1 that he shot with the design of killing Zubick,'justifying his action on the ground that it was done in self-defense, a very different question would be presented.. Then the issue as to intent would be eliminated, and! the defendant, if guilty of assault at all, would necessarily be guilty of assault with intent to kill. (The State v. Mize, 36 Kan. 187.) It follows that it was error to refuse to instruct upon assault and battery.
A question is also raised with, regard to the form of ,the verdict, but as it is not likely to arise again in this case it is not necessary that it be determined.
The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
112,
-18,
-4,
-65,
59,
96,
42,
-72,
81,
-126,
-92,
-13,
77,
-53,
5,
105,
40,
61,
85,
105,
-36,
-73,
23,
-63,
-78,
99,
91,
-59,
-78,
-20,
-3,
95,
12,
100,
-62,
85,
102,
74,
-31,
86,
-122,
-116,
-71,
-48,
-46,
80,
36,
118,
116,
10,
49,
-98,
-29,
42,
28,
-61,
-87,
40,
74,
-66,
80,
56,
-100,
-115,
-51,
22,
-77,
34,
-100,
39,
80,
44,
-40,
49,
1,
-8,
123,
-92,
-128,
-11,
109,
-119,
12,
102,
99,
33,
89,
-50,
40,
-119,
111,
122,
-115,
-89,
16,
65,
3,
76,
-106,
-35,
96,
112,
14,
100,
-25,
92,
88,
100,
9,
-105,
-76,
-79,
-17,
52,
18,
-16,
-29,
-121,
0,
116,
-50,
34,
92,
85,
89,
-101,
-97,
-43
]
|
The opinion of the court was delivered by
Johnston, C. J. :
By this action J. R. Swartzel seeks to recover from the George 0. Richardson Machinery Company the value of his services in the sale of a thrashing rig. He entered into a contract with the company by which he was to sell thrashing rigs at Caldwell and receive as compensation twenty per cent, of the selling-prices. On cash sales his commissions were to be paid out of the cash received, and on credit sales, where notes were to be taken, he was to be paid from the proceeds of the notes when each note should be paid in full. In the latter he was to receive commission certificates bearing the same number as the notes taken, setting forth the amount named in each note and when the same would become due. These certificates were not transferable or assignable.
Among other transactions, Swartzel sold a rig to James Pease on credit, the price to be paid in three instalments. Pease operated the rig a few days and then abandoned it and left the country. Swartzel began negotiations with Conklin Brothers for the sale of the Pease rig, and after the terms of sale had been practically agreed upon he wired the company that Pease had left the country, that he could sell the machine to other responsible parties, and he asked them to send a representative of the company to Caldwell. In response to the telegram the company wrote that they had instructed their agent Rice to go to Caldwell and take possession of the rig, and that if Swartzel could resell the machine to good parties for what Pease owed on it Rice would close the deal. Rice came, and after being informed by Swartzel of the situation and of his negotations with Conklin Brothers he went to the neighborhood where the thrash ing rig was, and when he returned told Swartzel that the deal with Conklin Brothers had been closed and that they had been placed in possession of the rig. While possession was given to Conklin Brothers the transaction was not finally closed up, the company thinking it necessary to foreclose the Pease mortgage so as to give the new purchasers an unquestioned title to the thrashing rig, and they proceeded to do so. Before it was accomplished Swartzel wrote the company asking for commission certificates on the Conklin Brothers sale. In answer, the company stated that the sale to Conklin Brothers had not been made, that he was not entitled to any commission, and closed the letter with this statement: “We would also request you to return us your contract, as we hereby cancel the same.”
Soon afterward Swartzel brought this action before a justice of the peace, where he recovered a judgment for $275 for the services-rendered. The company appealed to the district court, where new pleadings were filed, in which Swartzel claimed in one count upon the contract, and in the second count upon a quantum meruit for the actual value of the services rendered. Upon the pleadings, the court eliminated the claim for recovery upon the contract, and the case was submitted upon the second count asking for a recovery for the value of plaintiff’s services in selling the thrashing outfit for $2750, estimated at $275. He recovered $213.16.
The contentions of the company are that in making the sale to Conklin Brothers Swartzel acted under the contract, and must recover, if at all, by virtue of its terms; and, further, that if it be granted that a sale was made he was not entitled to commission certificates when he demanded them ; and, even if he had been, the refusal to issue certificates did not warrant him in ignoring the contract and bringing an action for the value of the services rendered.
It is to be noted that, in addition to the refusal of the certificates, the company in express terms declared the contract to be canceled. This was a repudiation of the entire contract, and Swartzel might rightfully assume that the contractual relations were ended, and recover upon a quantum meruit for the actual value of the services then performed, without reference to the specified contract rate of compensation. His evidence, confirmed by the verdict, was to the effect that he negotiated a sale and arranged the terms, which were subsequently accepted by the company. The company availed itself of the benefit of his services in this respect, and when he asked for the issue of certificates under the contract they met him with the statement that the contract had been renounced. There may have been reasons for delay in issuing the certificates, or some of them, but no attempt was made to show reasons for the arbitrary abandonment of the contract. The contract having been thus wrongfully terminated by the company, Swartzel had the option to sue for the breach and recover damages, or upon a quantum meruit for the worth of the services already performed. (Jenson v. Lee, 67 Kan. 539, 73 Pac. 72; Fitzgerald v. Allen, 128 Mass. 232; Mooney v. Iron Co., 82 Mich. 263, 46 N. W. 346; Derby et al. v. Johnson et al., 21 Vt. 17; Carroll v. Giddings, 58 N. H. 333; United States v. Behan, 110 U. S. 338, 4 Sup. Ct. 81, 28 L. Ed. 168; 9 Cyc. 688.)
The company, which annulled the contract, and in effect released Swartzel from its obligations, will not be permitted to set up the contract to defeat him. “It is generally true that the party who is guilty of the first breach of a contract can neither found a right of action upon such contract, nor make it the basis of defense to an otherwise just claim.” (Stage Company v. Peck, 17 Kan. 271, 274.) Where a contract contemplates a number of independent transactions, with fixed compensation for each, and the contract is terminated, the contract rate may, as the company contends, be applied to such independent transactions as have been fully performed; but here the transaction in question was not complete. It could not have been fully closed until the last note taken from Conklin Brothers had been paid, and the claim of the company is that the sale even was incomplete when the contract was canceled and the action brought.
It is argued that the refusal of certificates was, at most, a violation of a collateral undertaking which did not justify Swartzel in ignoring the contract, and the case of Quigley v. Comm’rs of Sumner Co., 24 Kan. 293, is cited in support of the contention, The argument and authority do not fit the facts of this case, because the violation in this instance is not of a collateral part of the contract, but in the letter refusing commission certificates there was a renunciation of the entire contract for reasons of their own, which were not given.
We find no prejudicial error in the record, and hence the judgment of the district court is affirmed.
All the Justices concurring. | [
112,
114,
-104,
-116,
90,
-16,
42,
-38,
81,
101,
-89,
87,
-119,
-66,
20,
125,
-29,
125,
-48,
104,
-26,
-93,
22,
115,
-61,
-13,
-55,
-51,
-79,
-50,
-84,
84,
76,
36,
-54,
21,
-26,
-128,
73,
20,
-50,
33,
-87,
-20,
-3,
2,
48,
-69,
52,
75,
81,
-114,
-29,
46,
29,
-58,
-19,
40,
107,
56,
-63,
-8,
-69,
-116,
87,
28,
-128,
96,
-100,
103,
-8,
62,
-112,
-75,
0,
-24,
123,
-92,
-106,
-12,
105,
-71,
8,
98,
99,
16,
69,
-17,
88,
-104,
47,
-66,
-99,
-89,
21,
80,
-126,
97,
-66,
-99,
-22,
18,
-73,
-10,
-18,
21,
28,
37,
3,
-117,
-42,
-93,
15,
126,
-100,
27,
-17,
-125,
54,
112,
-51,
-94,
93,
86,
123,
31,
-121,
-72
]
|
The opinion of the court was delivered by
Burch, J. :
On August 10, 1901, a petition was presented to the board of county commissioners of Cowley county, praying for the location of a public highway upon certain section-lines through territory which had originally formed a part of the trust and diminished reserve lands of the Osage Indians. The attention of the board was not called to the act of congress of 1866 (14 U. S. Stat. at Large, 253, ch. 262, § 8, U. S. Rev. Stat. § 2477, 2 U. S. Comp. Stat. 1901, 1567), granting the right of way for the construction of highways over public lands not reserved for public use, and the acceptance of that grant by the legislature of the state of Kansas in 1872. (Laws 1872, ch. 178.) Consequently, the board proceeded in the regular way to establish the highway. Damages were allowed the defendant in error in the sum of seventy-five dollars for land taken, and deeming the award to be insufficient he appealed. On a final trial, occurring after the decision by this court of the case of Tholl v. Koles, 65 Kan. 802, 70 Pac. 881, the board sought to defeat the recovery of any. damages by invoking the congressional grant and legislative acceptance above cited. A judgment was rendered in favor of the defendant in error for the sum of $110, which the board seeks to have reversed.
The board of county commissioners chose its own grounds and assumed its own attitude. The condemnation proceedings wereinstituted upon its own theory, and the defendant in error was challenged to take measures for his protection against conduct to be exhibited pursuant to that theory. The defendant in error was not obliged to determine for himself if the section-lines of his land were-already highways. He could yield to the board’s apparent interpretation of the law and the facts relating to that subject. This he did, and, following the board’s prompting, undertook to secure his rights in the proceeding which it had forced upon him. The board, still consistent, conceded his right and allowed him damages. The defendant in error, still consistent, then took an appeal, which, under the law, limited all further investigation to the single question of the amount of his damages. (Comm’rs of Lyon Co. v. Kiser, 26 Kan. 279; Comm’rs of Wabaunsee Co. v. Bisby, 37 id. 253, 15 Pac. 241; Briggs v. Comm’rs of Labette Co., 39 id. 90, 17 Pac. 331.) Having brought on the controversy, having laid down the lines within which it should proceed, and having caused the defendant in error to involve himself in trouble and expense on account of the position it assumed, the board cannot now shift its ground. It cannot now plead ignorance of the statutes of the United States and of the state of Kansas, or ignorance of facts to which those statutes apply, in order to extricate itself from uncomfortable litigation for which it alone is responsible. It cannot thus “mend its hold.” (Redinger v. Jones, 68 Kan. 627, 637, 75 Pac. 997, 1001; Sandefur v. Hines, 69 id. 168, 76 Pac. 444.)
The case is not distinguishable in principle, and is but little different in its facts, from that of Comm’rs of Wabaunsee Co. v. Bisby, supra. In that case a county board undertook to establish a road by an ordinary condemnation proceeding. Landowners were duly notified. Viewers met and heard- claims for damages presented in response to the notice given. Damages were allowed, and, upon a review of the proceedings by the board, the award of the Viewers was approved and confirmed. On an appeal by the landowner, the board sought to defeat recovery altogether by showing that a road had already been established over the same route, and, consequently, that the appellant had lost nothing. This court said :
“The county was treating this matter as if no road had ever been located there. Whatever proceedings had taken place prior to that time the county commissioners were entirely ignoring; they were saying to- the defendant: We are about to locate and establish a road over your land, and, if you claim damages, you must present your claim. And after the county board has done this, it cannot be heard to say : A public road is already established over this same route; and therefore the plaintiff is not damaged.” (Page 255.)
Such being the law, all other questions discussed in the briefs become immaterial, and the judgment of the district court is affirmed.
All the Justices concurring. | [
-10,
106,
-16,
93,
11,
64,
2,
10,
72,
-87,
52,
83,
-87,
-56,
-128,
53,
-25,
61,
-11,
123,
-27,
-73,
87,
-55,
18,
-13,
-37,
-51,
-71,
93,
-10,
-42,
74,
48,
74,
21,
70,
-56,
69,
-36,
-114,
12,
-119,
-40,
-55,
-120,
60,
111,
18,
79,
53,
47,
-13,
42,
24,
-29,
-87,
44,
91,
-72,
17,
-80,
-98,
-43,
126,
6,
1,
2,
-104,
5,
64,
-70,
-104,
49,
9,
-4,
87,
-90,
-121,
-11,
5,
-103,
12,
-90,
103,
33,
52,
-51,
-88,
-104,
14,
-34,
-115,
-90,
-124,
8,
-62,
97,
-106,
29,
124,
86,
7,
122,
-25,
69,
95,
120,
-123,
-117,
-74,
-73,
-49,
62,
-128,
65,
-29,
-125,
50,
101,
-57,
-10,
95,
-57,
58,
-109,
-97,
-72
]
|
The opinion of the court was delivered by
Burch, J. :
This action is original in this court. It was brought by the state of Kansas, on the relation of the attorney-general, for the removal from office of Henry 0. Trinkle, the county attorney of Linn county. The petition contains four separate accusations, which may be summarized briefly as follow :
(1) That one Harry Tyler and four other individuals named were, within the defendant’s term of office, engaged in the wilful and notorious sale of' intoxicating liquors in violation of law, in the defendant’s county ; that the facts of such violations were well-known by the defendant from information received from others, as well as from his own observation and experience; that with knowledge of the facts he neglected and refused to prosecute the offenders; and that, by giving them information of complaints against them, he encouraged them to continue to violate the law.
(2) That on a day named^Mrs. Della M. Adams and Mrs. Emma W. Morse personally notified the defendant that the provisions of the prohibitory liquor law were being violated by one Harry Tyler, furnished the defendant with a list of witnesses by whom such-violations might be established, and requested him to-inquire into the facts, and if the information given were found to be correct to prosecute; but that the defendant, knowing from personal observation and otherwise that Tyler was violating the law, refused to accept the list of names tendered, and refused to-take any legal action whatever in the premises.
(3) That on the day referred to in the second charge the city marshal of Mound City personally informed the defendant that Harry Tyler was violating the law, offered the defendant a list of witnesses by whom such violations could be established, and requested him to take such action as the law required, but that the defendant refused and neglected to move in the matter.
(4) That upon the complaint of the mayor of the- city of Prescott the defendant did write and file in the district court an information against one Van Brittingham for violating the prohibitory liquor law, and that a seizure of liquors under the warrant which was issued followed; that the defendant advised and requested that personal service of the warrant' be not made, but that the sheriff rejected the advice and refused the request; that at the solicitation of the defendant Van Brittingham paid to the city of Prescott the sum of $100, and entered into a written agreement to refrain from violation of the law and generally to be a good citizen ; that the mayor and city council of Prescott then petitioned that the case be dismissed, and that the defendant corruptly agreed to dismiss it; that Van Brittingham paid to the defendant the sum of $150 as a reward and bribe to influence his conduct as county attorney, pursuant to-which he did move to dismiss the action ; that the defendant had reason to know, and did know, at the time he filed the motion to dismiss, that Van Brittingham was guilty, and that his guilt could be proved; that the arrangement to dismiss had been brought about by the defendant, and that his conduct was corruptly influenced by the desire to shield and protect Van Brittingham from the penalty of his. crimes, and by the corrupt receipt of the money referred to.
The defendant answered fully, denying all charges, of corruption, improper motive, and wrongful purpose,, denying the truth of the principal facts alleged against him, explaining others, and setting forth additional, facts in justification of his conduct.
Upon the issues thus presented evidence has been taken and submitted, and the cause has been orally argued by counsel for the state and for the defendant- After due consideration of the questions involved, the court has reached the conclusion that the state cannot prevail, because those questions belong almost entirely to the domain of fact, and exhaustive discussion of the case would be unprofitable ; but because of its importance some statement relating to matters of primary significance is doubtless due.
The statutory basis of the action is found in section 1852, General Statutes of 1901, which reads as follows :
“If any board of county commissioners, or any commissioner, or any other county officer, shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty, he shall forfeit his office, and shall be removed therefrom by civil action in the manner provided in the code of civil procedure.”
Before his induction to office can take place a county attorney is required to take an oath to support the constitution of the United States and the constitution of the state of Kansas, and faithfully to discharge the duties of his office. (Gen. Stat. 1901, §4283.) It is the duty of the county attorney to appear in the several courts of his county, and to prosecute on behalf of the people all criminal suits, applications or motions arising under the laws of the state in which the state or his county is a party, or is interested. (Gen. Stat. 1901, § 1777.) He is the legal adviser of all civil officers of his county, and is forbidden to receive any fee or reward for his services from any person except such as are allowed by law. (Gen. Stat. 1901, §§1779, 1780.) Special definitions of his duty regarding the prosecution of liquor cases are included in the statutes relating to that subject.
If the county attorney be notified by an officer, or other person, of any violation of the prohibitory liquor law, it is his duty forthwith diligently to inquire into the facts of such violation, and for that purpose extraordinary powers have been conferred upon him. (Gen. Stat. 1901, §2472; Laws 1901, ch. 233, §1.) If the inquiry disclose the fact that an offense has been committed he must institute proceedings for its punishment. (Gen. Stat. 1901, §2473.) It is his duty diligently to prosecute any and all persons violating any of the provisions of the prohibitory liquor law in his county, and if he fail, neglect or refuse faithfully to perform any duty imposed upon him by that law he is subject to fine and imprisonment as in ordinary cases of misdemeanor; and if he be convicted of a dereliction of duty he forfeits his office as a part of the penalty. (Gen. Stat. 1901, §2476.)
Prom this it is apparent the legislature demands that the county attorney shall measure up to the full height of a lofty standard of duty. He is appointed to keep guard in front of sacred temples ; he is the exponent and defender of the social order ; through him the law and the administration of justice must be vindicated ; his official character must be the very incarnation of respect for law and obedience to law, and if he turn traitor to his oath he becomes a moral perjurer, and degrades himself to the level of a criminal.
In the conduct of his office the county attorney need acknowledge no master but the law. He may close his ears to every kind of constraining clamor so long as he pursues no policy except that which duty prescribes. He must be accorded a reasonable discretion in directing the business of his office,,and some scope must be conceded to him for the exercise of his. best judgment in respect to many matters committed to his charge, including even the commencement and the dismissal of cases; but this discretion must always obey the promptings of probity and the unfeigned desire to accomplish the legislative will. His judgment must be candid, honest, and sincere, and his conduct must be undissemblingly consonant with the obligations of his oath. The distinguishing characteristic of . every official act must be genuine good faith.
The law presumes that the defendant in this case conducted himself in the manner described with reference to all the matters charged against him, and the burden rests upon the state to show the contrary to be true, by a preponderance of the evidence.
The first and second of the charges contained in the petition impute to the defendant knowledge of violations of the prohibitory law in his county from personal observation and experience. If these accusations were proved to be true they would not of themselves entail forfeiture of office in the event of a failure to prosecute. The precise question was passed upon by this court in the case of The State, ex rel., v. Foster, 32 Kan. 14, 3 Pac. 534. In ruling upon the admission of testimony in that case Chief Justice Horton said :
“We do not understand the law to require a county attorney, upon his own knowledge, to commence criminal prosecutions, but we do understand that when he has received notice from ‘any officer or other person,’ of the violations of the law, he shall forthwith diligently inquire into the facts of such violation, and if, upon inquiry, he ascertains that the law has been violated, he shall file a complaint as prescribed by the statute. ... A motion is also made to strike out' all the testimony tending to show that parties had seen the defendant in saloons, and also had seen him drinking therein. We think it competent to introduce evidence of this kind to show that after the county attorney received notice that certain parties were violating the law, he had actual notice thereof from his own personal knowledge. This tends to show his motives in the prosecution of the cases mentioned in the petition, and may have something to do in disclosing his intent in dismissing the cases against the parties violating the law.” (Pages 25, 26.)
And in charging the jury the law was announced in the following language :
“There has been evidence introduced in this case tending to prove the defendant visited the various saloons kept and operated by the parties mentioned in the petition, and from his own observations and experience knew all the persons charged were guilty of violations of the provisions of the prohibitory act. .Evidence has also been introduced tending to prove no prosecutions were commenced by-the defendant against any of the parties selling intoxicating liquors in Saline county in violation of law, and, also, evidence has been offered tending to prove the saloons were run and operated in that county openly and publicly. This character of evidence has been admitted to show the motives of the defendant, but not for the purpose to have you understand that it was his duty, upon his own knowledge, to commence prosecutions or file complaints.” (Page 33.)
No attempt has been made to show that the defendant was informed of violations of the law by any of the parties named in the first charge except Tyler. The only notifications he received concerning Tyler are those specifically referred to in the second and third charges. There is no evidence that the defendant ever gave notice to any of the parties named in the first charge of complaints made against them, or-ever encouraged them to violate the law; and the-bearing upon the conduct of the county attorney of the fact that violations of the law were open and notorious in his county is fully covered by the instructions to the jury in the Poster case. Therefore, the first charge has not been sustained.
The second and third charges may be discussed together. The defendant did not refuse to accept the list of witnesses tendered him by Mrs. Morse and Mrs. Adams. They desired to keep the original list, but the defendant made a copy of it when it was presented to him, and said he would investigate. The list of witnesses furnished by the marshal was identical with the other. When it was shown to the defendant he said he would see the marshal again. On the following day, or on the second day following, Tyler left the county and has not since returned. The defendant avers ignorance of his whereabouts, and the state does not show that he can be reached either by a warrant or by a requisition. Prom all the evidence the court is unable to say that the delay was unreasonable, or was occasioned by a desire to evade the performance of duty.
In his answer the defendant pleaded facts showing a virtual and apparently commendable cooperation with the city authorities of Mound City in respect to the prosecution of Tyler, whereby the city was to proceed first on account of the long time intervening before a term of the district court, and the claimed impracticability of a prosecution before a justice of the peace under local conditions. The evidence does not support the answer to its full extent, and, though the whole matter was immediately cut short by Tyler’s disappearance, it is proper to observe that the duties of the county attorney as the representative of the state are not dischargeable by the city, and a city prosecution cannot be made a mere substitute for a prosecution by the state. Cities may provide by ordinance for the prohibition of the sale of intoxicating liquors contrary to law, and the suppression of liquor nuisances. (Gen. Stat. 1901, §2499; Laws 1901, ch. 232, §7.) But if the mayor, marshal, police judge or police officer of any city or town have notice, or knowledge of any violation of the prohibitory liquor law he is subject to fine and forfeiture of office unless he notify the county attorney of the fact of such violation, and furnish him the names of any witnesses within his knowledge by whom the fact of such violation may be established. (Gen. Stat. 1901, §2462.) Upon the receipt of such notice and the names of such witnesses it is, of course, the duty of the county attorney to proceed, and the mere fact of a contemplated or pending prosecution by the city is not sufficient to stay his hand or to excuse inactivity.
The evidence under the fourth charge is insufficient to show cause for a forfeiture of the defendant’s office on account of the circumstances connected with the arrest of Van Brittingham. At the time of the arrest the prosecuting witness, who was the mayor of the city in which Van Brittingham had been operating, was endeavoring to procure a dismissal of the case. He sincerely desired to aid in the rehabilitation of Van Brittingham’s character by some other method than that of fine and imprisonment. Hence he argued to the sheriff that he did not believe in pulling a young man down when he wanted to reform. The sheriff understood the defendant to suggest in this connection that the warrant could be held up, and then to say that the legitimate way would be for the sheriff to serve the warrant, for Van Brittingham to give bond, and then to let the matter go before the district court. The defendant further explains that, after the mayor had spoken, Van Brittingham said he did not want to be arrested then, and the sheriff replied that he must either give bond or go to jail; and that he then interposed, with, “You don’t have to be arrested; you have your bondsmen here; if Mr. Evans will go jour bond all you have to do is to give bond.” This is substantially all of the affair, and neither by itself nor taken in connection with the other circumstances of the case does it bear any such vicious or sinister aspect as the state would have appear.
The evidence is clear to the effect that the arrangement between the city of Prescott and Van Brittingham was not made at the defendant’s solicitation, but that it was the result of negotiations suggested by a member of the city council, and conducted and concluded without the defendant’s cognizance or aid, except that before any of the terms were agreed upon he expressed the mistaken opinion that the scheme suggested could be legally consummated. The evidence does not warrant the inference that the expression of that opinion was the result of any desire to shield Van Brittingham, or that it was prompted by any corrupt motive. No fair interpretation of the evidence can lead to the conclusion that Van Brittingham paid the defendant the sum of $150 as a reward or bribe to influence his official conduct; and from the evidence it cannot be said that the motion to dismiss was filed under any corrupt incentive of personal gain, or that the defendant corruptly agreed to dismiss the Van Brittingham case.
The mayor and council of the city of Prescott appear to have concluded that it would be best for the young man, Van Brittingham, and best for their community to dismiss the pending prosecution upon certain terms. Those terms included the payment of the costs of the case. Van Brittingham’s engagements were embodied in a written instrument which he signed. Then the city council and a number of prominent citizens of Prescott petitioned the mayor, in writing, to request the county attorney to enter a nolle prosequi in the case. It is a matter of common knowledge that *petty criminal cases are frequently dismissed because of the kindly, if uncritical, belief that sometimes justice may be best subserved by extra-legal means. The defendant had advised the parties that the matter must be presented to the district court by motion, and there is no reason to doubt that he believed the motion would be sustained. He undertook to comply with the request of the mayor and the desire of the petitioners, evidently not in any effort to be dishonest or to thwart the law, but because of an injudicious belief that the proposed conduct satisfied the requirements of the case. Van Brittingham ’s agreement tacitly admitted a violation of the law. When the costs provided for in the agreement were computed the defendant simply included county attorney’s fees in the same manner as if Van Brittingham had been found guilty, and the costs so estimated were paid. The whole matter was adjusted and settled in the most open, frank and public manner possible.
It is true the statute provides for the recovery of ■county attorney’s fees in liquor cases only in case of a conviction. The defendant had no right whatever to the money, and ought not to have been guilty of any misconception of the law; but, since his relations had all been with the city authorities and not with Vafi Brittingham, since he had made no agreement whatever with Van Brittingham, and since the agreement of the city with Van Brittingham was not in any sense made for the defendant’s benefit, it is difficult to see how his conduct was affected by the matter of fees; and, taking into consideration the presumption of uprightness in the discharge of official d.uty, and the defendant’s denial of intentional wrong doing, the evidence is best interpreted upon the basis of his good faith. Under a state of facts but slightly different justice would doubtless demand, besides a removal from office, a forfeiture of the right to practice law and the imposition of the penalties prescribed by the criminal law.
The only remaining element of the fourth charge is that the defendant voluntarily moved to dismiss a criminal action pending against a person whom he knew to be guilty. The essential character of his conduct in this respect, however, has been sufficiently discussed. After the settlement with Van Brittingham, but before the motion to dismiss was filed, the defendant was admonished by the attorney-general that criminal cases must not be disposed of in the manner desired by people of the city of Prescott. The defendant, however, regarding the settlement as an accomplished fact and the product of honest intentions and good motives, submitted the whole matter to the judgment of the district court. He concealed nothing, and shaded nothing. Van Brittingham’s agreement and the citizens’ memorial were attached as exhibits to the motion, and there is nothing to indicate that the district court denied the motion upon any other ground than the inherent impropriety of those documents as reasons for the disposition of the case proposed.
In conclusion it may be said .that the legislature has defined the attitude which a county attorney must bear toward the prohibitory liquor law; and the observation made in Deuteronomy, xxx, 11-14, following a promulgation of law, is pertinent':
“For this commandment which I command thee this dajr, it is not hidden from thee, neither is it afar off. It is not in heaven, that thou shouldest say, Who shall go up for us to heaven, and bring it unto" us, that we may hear it, and do it? Neither is it beyond the sea, that thou shouldest say, Who shall go over the sea for us, and bring it unto us, that we may hear it, and do it ? But the word is very nigh unto thee, in thy mouth, and in thy heart, that thou mayest do it.”
The judgment of the court is for the defendant.
All the Justices concurring. | [
-80,
-20,
-88,
29,
26,
-32,
10,
58,
73,
-79,
-9,
115,
-23,
-36,
1,
115,
122,
125,
85,
107,
-31,
-74,
27,
0,
86,
-45,
-39,
-59,
-79,
121,
-12,
-9,
75,
48,
26,
-43,
7,
74,
-45,
-36,
-114,
33,
-119,
-48,
-45,
-120,
48,
97,
19,
11,
53,
46,
-13,
42,
28,
-61,
73,
44,
91,
31,
112,
-15,
-68,
-35,
-2,
86,
-127,
2,
-100,
-123,
72,
47,
-104,
49,
-63,
-24,
123,
-92,
-124,
116,
15,
-119,
-116,
54,
71,
35,
-107,
-81,
-88,
-83,
47,
58,
-103,
38,
-80,
81,
99,
32,
-74,
-103,
117,
-110,
3,
-6,
-21,
4,
89,
60,
-121,
-34,
-76,
-111,
-113,
52,
-126,
23,
-29,
37,
0,
97,
-59,
-26,
92,
102,
48,
27,
14,
52
]
|
The opinion of the court was delivered by
Cunningham, J. :
This is the appeal of Joe Johnson from a judgment of the district court of Shawnee county sentencing him to the penitentiary upon a charge of having committed an assault upon two named persons with deadly weapons with intent to kill. He was charged with two others but tried separately'. The material assignments of error will be discussed in their order.
(1) The preliminary examination was’had upon a warrant charging that the assault was committed “with certain deadly weapons, to wit, large-bladed knives and clubs.” The information filed in the district court used the same terms. When the case was called for trial in the district court the state asked and was given permission to amend the information by adding, after the word “clubs,” the words “and an umbrella,” so that the information then charged the assault to have been made “with large-bladed knives and clubs and an umbrella.” To the making of this amendment the defendant objected, because it would change the substance of the charge made against him. We find ample authority in section 72 of the code of criminal procedure (Gen. Stat. 1901, §5513) for the making of the amendment, and as it was done before he was called upon to plead it might well have been made even without the permission of the court.
(2) Thereafter the defendant filed his motion for a continuance. This continuance was not asked for the reason that he had been prejudiced by the making of the amendment, but because of the absence of certain witnesses. An affidavit in support of this motion setting out what one of the witnesses would testify to was permitted by the state to- be read as the deposi tion of that witness. The motion was denied as to the other witness. No diligence was shown to have been used to obtain the required testimony. The affidavit stated that the affiant had “used due diligence to obtain the evidence.” This statement is insufficient. The statute requires the affidavit to show that due diligence has been used. (Code, § 317 ; Gen. Stat. 1901, § 4765.) A statement to that effect is not a showing. The affidavit further showed that the witness had been in the city of Topeka the day before and that affiant had no knowledge or suspicion that she intended to leave the county or state ; that he had hunted for her at her last place of residence and at other places, but had been unable to find her, and was informed she had gone to Kansas City, Mo. All of this failed to show the required diligence. Due diligence would have suggested the issuance of a subpoena in proper time. (The State v. Barker, 43 Kan. 262, 23 Pac. 575.) It does not appear that he had even the promise of the witness to attend the trial. The district court did not abuse its discretion in refusing á continuance upon the showing made.
(3) Complaint is made of the denial of defendant’s motion to quash the information. The two reasons which were assigned in this motion, and now contended for, are as follows :
“5. Because said information contains two separate and distinct offenses alleged in one count, to wit: The offense of making an assault with a deadly weapon with intent to kill W. T. Sanford, and the further and separate offense of making an assault with a deadly weapon with intent to kill one Joseph Burt, and these defendants and each of them do not know which offense they may be required to defend against.
“6. Because said information is bad for duplicity, in that it charges two distinct felonies in one count.”
This calls upon us to examine the information, which, omitting the more formal parts, is as follows :
“ThatThomas Phillips, Joseph Johnson, and David Brown, at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the-day of April, 1904, did then and there unlawfully, feloniously, wilfully, on purpose and of their deliberate and premeditated malice aforethought make an assault in and upon W. T. Sanford and Joseph Burt with certain deadly weapons, to wit, large-bladed knives and clubs and an umbrella, which said knives and clubs and an umbrella the said defendants then and there in their hands had and held, with the intent then and there in so doing the said W. T. Sanford and Joseph Burt unlawfully, feloniously, wilfully, on purpose, and of their deliberate and premeditated malice aforethought, to kill and murder.
“And they, the said defendants, Thomas Phillips, Joseph Johnson, and David Brown, with the said knives and clubs and an umbrella, did then and there unlawfully, feloniously, wilfully, on purpose and of their deliberate and premeditated malice aforethought strike, beat, bruise and cut them, the said W. T. Sanford and Joseph Burt, inflicting certain serious and dangerous wounds upon the bodies of the said W. T. Sanford and Joseph Burt, with the intent then and thei'e in so doing the said W. T. Sanford and Joseph Burt unlawfully, feloniously, wilfully, on purpose and of their deliberate and premeditated malice aforethought to kill and murder, contrary to the statutes in such case made and provided and against the peace and dignity of the state of Kansas.”
The argument is that two offenses are here charged, to wit, an assault upon Sanford and an assault upon Burt, and our attention is called to section 38 of the crimes act (Gen. Stat. 1901, § 2023), under which the information is drawn, which provides that “every person who shall, on purpose and of malice aforethought, shoot at or stab another, or assault or beat another, . . . with intent to kill,” etc., shall be guilty, and that, inasmuch as the word “another” is therein used, if the crime charged is an assault upon two others, the one so assaulting would be guilty of two crimes instead of one, and should be charged in two counts. '
The record before us does not contain the evidence or the instructions of the court; therefore, we are wholly uninformed as to the character of the proof or the theory of the trial. Our attention is confined to the charge made in the information, which is, that with a single intent, to wit, to kill and murder Sanford and Burt, the defendant committed the single act— made an assault upon these men with certain deadly weapons. May not this be true ? May not a person entertain at a given time an intent by one felonious act to kill several persons, and in furtherance of that intent employ one act to accomplish it ? Might not the defendant here have used a gun or a deadly bomb intending to murder the two named persons, or even more, at the same time? We think it clear that this might have been; but it is urged that, inasmuch as it is charged that the assault was made with “knives, clubs, and an umbrella,” in the nature of things the assault must have been made upon one at a time. This does not follow. It is easily conceivable that the position of two might have been such that both could receive a fatal stroke at one time from the named weapons. This view is well sustained by the authorities.
“A battery or murder of two or more persons may be alleged in one count. We have some authority contrary to this, but by reason and the better decisions, certainly if one bullet, or one blow, or one wrongful impulse of any kind, or probably if one transaction, results in the injury or death of two or more persons, all may be alleged in one count as one offense. Where two, with intent to murder, commit a joint assault, the one -with a knife and one with a gun, they may be jointly held in one count. And if a man shoots at two, meaning to kill one, but regardless which, a single count may contain the full accusation.” (1 Bish. New Crim. Proc. § 437 [5].)
The principle here involved is discussed at length, and a large number of authorities cited, in The State v. Colgate, 31 Kan. 511, 3 Pac. 346, 47 Am. Rep. 507.
The appellant directs our attention to a number of Kansas decisions to the effect that two or more offenses may not be joined in one count of an information. This is hornbook law, but does not reach the question here. There were not two offenses charged in the information under consideration. As we have already said, as charged the intent was single and the act but one.
(4) A plea in abatement was filed and overruled. It is claimed that this action was erroneous. It was based on the claim that no preliminary examination had ever been given the defendant. The real reason of the plea, however, is that in the complaint upon which the defendant was arrested and the warrant upon which the preliminary examination was had the charge was that the assault was made upon W. T. Sanford and-Bert, and the question is whether a preliminary examination for having assaulted - Bert will sustain an information and warrant a trial thereon for having assaulted Joseph Burt. The appellant claims that while the surnames may be idem sonans the omission of the Christian name renders the identity of the person so uncertain as to amount to a misdescription, if not to an entire want of description. We think that the previous decisions of this court in connection with the provisions of our statute settle the question against this claim.
We are required by section 293 of the code of criminal procedure (Gen. Stat. 1901, §5731), in a proceeding like this, to “give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” We find by reference to the record showing the proceedings had upon the preliminary examination that Joseph Burt was used as a witness ; that no objection was then made to the omission of the Christian name from the complaint or warrant. It seems, therefore, that the defendant was then satisfied to proceed with the investigation of the charge that he had assaulted-Bert. We are unable to perceive how the defendant could have been anywise prejudiced by the omission of the Christian name or the misspelling of the surname, especially in the absence of any suggestion on his part that the Christian name should be supplied. The main object in giving the name of a party assaulted is so to describe the crime charged that the record of ‘the trial may prove a bar to another prosecution. That “Bert” and “Burt” are idem, sonans cannot be denied. (Cochran v. Atchison, 27 Kan. 728; Rowe v. Palmer, 29 id. 337; The State v. Witt, 34 id. 488, 8 Pac. 769; The State v. Falk, 46 id. 498, 26 Pac. 1023; State Bank v. Kuhnle, 50 id. 420, 31 Pac. 1057, 34 Am. St. Rep. 129; Sparks v. Sparks, 51 id. 195, 32 Pac. 892.)
“Names are said to be idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common or long-continued usage, has by corruption or abbreviation made them identical in pronunciation. Wrongly spelling names which are idem sonans is an immaterial variance.” (15 A. & E. Encycl. of L., 2d ed., 916.)
The variance in the spelling of the name was entirely immaterial; no difference in the sound can be detected. Nor was the omission of the Christian name such an irregularity as would render nugatory the preliminary examination. The substantial rights of the appellant were not affected thereby. He was content to let the preliminary examination proceed without objection because of this omission. It was held by this court in The State v. Bailey, 32 Kan. 83, 89, 3 Pac. 769 :
“All that is necessary is that the defendant should be given a fair opportunity to know by a proffered preliminary examination the general character and outline of the offense charged against him ; and it is not necessary that all the details and technical averments required in an information should be set forth in the papers used on the preliminary examination. And the defendant should take notice from the evidence introduced by the state on the preliminary examination, as well as from the papers in the case, of the nature and character of the offense charged against him.” (See, also, The State v. Tennison, 39 Kan. 726, 18 Pac. 948; The State v. Reedy, 44 id. 190, 24 Pac. 66; The State v. Geer, 48 id. 752, 30 Pac. 236; The State v. Aldrich, 50 id. 666, 32 Pac. 408; The State v. Smith, 57 id. 673, 47 Pac. 541.)
(5) The appellant further insists that he was entitled to a jury for the trial of his plea in abatement. Generally where questions of fact are involved in the investigation of such a plea a jury trial is a matter of right. Here, however, the appellant in open court said: “We submit this matter on the affidavit and the judicial knowledge which the court takes of the papers and files in the case.” It was only after the court had announced that the plea in abatement was overruled that a jury was demanded to try the issue. Further than this, the issue here raised was clearly one of law and not of fact; in either view the court was justified in refusing to submit the question to a jury. Finding no error, we affirm the judgment of the court below.
All the Justices concurring. | [
-79,
-21,
-7,
-65,
9,
96,
-86,
60,
-31,
-95,
-10,
83,
47,
-54,
0,
123,
-6,
111,
116,
105,
-60,
-73,
39,
73,
-74,
-5,
-79,
-44,
-77,
78,
-10,
-44,
12,
112,
74,
-43,
102,
10,
-125,
-36,
-114,
-121,
-87,
-64,
-46,
64,
32,
35,
120,
15,
113,
-97,
-13,
42,
30,
-61,
-87,
40,
75,
-83,
-64,
-15,
-113,
-35,
-113,
22,
-77,
-74,
-100,
7,
92,
46,
24,
57,
0,
120,
115,
-74,
18,
116,
13,
-119,
33,
110,
98,
1,
-103,
-53,
44,
-120,
47,
54,
-99,
-89,
-104,
73,
105,
-116,
-106,
-97,
101,
52,
7,
108,
-11,
21,
25,
108,
-127,
-61,
-112,
-77,
-51,
112,
26,
-7,
-21,
-123,
-112,
97,
-60,
102,
94,
85,
48,
-37,
-113,
-112
]
|
The opinion of the court was delivered by
William R. Smith, J.:
Appellant was taken into custody on view of the commission of an offense by a policeman of the city of Topeka and brought before the police court without process. An oral complaint was made against him by the officer charging that on or about July 3, 1903, in a back room on the first floor of a two-story building at No. 708 Kansas avenue, defendant did unlawfully assist in keeping and maintaining a place where spirituous, malt, vinous, fermented and other intoxicating liquors were sold, bartered, and given away, and where persons were permitted to resort for the purpose of drinking such intoxicating liquors as a beverage, and where intoxicating liquors were kept for sale, barter, and delivery, without a permit, etc., in violation of the ordinances of the city.
Appellant was found guilty, a fine imposed, together with a sentence of imprisonment. He ap pealecl, giving bond in the sum of $500. The transcript sent up showed that appellant was convicted before M. L. Field, acting police judge. It was certified, however, thus :
“ This is to certify that the within and foregoing is a full, true, complete and perfect copy of the proceedings had before me in the above-entitled cause, as appears in my docket 17, at page 159.
“Witness my hand this 24th day of July, 1903.
Clad Hamilton, Police Judge.”
In the district court Kerseh moved to dismiss the action for the reason that the transcript did not show that he was charged, tried, or convicted in the police court of any offense against the ordinances of the city. The motion was overruled. He renewed the motion after the jury were sworn to try the case. The same ruling was made. Before the jury were sworn defendant objected to being placed on trial for the reason that there was no complaint or warrant on which he could be tried. This objection was overruled. We .suppose this motion was intended to attack the transcript because it was not legally certified. If so, it was far from specific, and we might well say did not raise the question. The transcript, however, was not defective. It was certified to by the regular police judge, the only officer authorized to do so. Appellant’s counsel argue that, their client having been tried before a special or acting police judge, the proceedings must be certified by him, and liken the case to a settlement of a bill of exceptions by a judge pro tern. The cases are not analogous. Proceedings on appeal from convictions in the police court are regulated by section 807 of the General Statutes of 1901, which applies the law respecting procedure before justices of the peace to appeals from the police court. All that is necessary on such appeal is to get the proceedings before the district court which appear in the docket of the police judge. The word "proceedings” has a broad meaning. (Drumm v. Cessnum, 61 Kan. 467, 59 Pac. 1078.)
Under the theory of counsel for appellant, if the acting police judge should die or remove from the state there could be no appeal. The complaint against defendant appeared on the docket; there was no warrant. A certified copy of the docket entries, together with a certificate of the recognizance, was all that the law required to give the district court jurisdiction of the case. Appellant, when arraigned in the police •court, did not demand to have a complaint filed against him under oath, to which he was entitled under the statute. (Gen. Stat. 1901, §813.) The filing •of a written complaint being waived, the waiver concluded his rights thereto in the district court after appeal. The complaint could not be changed or amended except in the police court. (City of Burlington v. James, 17 Kan. 221.)
Because appellant was charged with assisting in keeping and maintaining a common nuisance it is urged that the court misdirected the jury in stating that he was on trial for keeping and maintaining such nuisance. In misdemeanors all who aid or assist are principals ; the law recognizes no accessories. ‘ The testimony showed that Kersch, at the time of his arrest, was serving liquor over the bar to about ten men. He had no hat or coat on and was actively engaged in the work. The supply of liquor was ample. It is insisted that no intoxicating liquors were found in the possession of appellant, and hence no prima facie case arose under section 2500 of the General Statutes of 1901. We think there was ample proof of possession. A barkeeper serving customers with intoxicating drinks-has possession of the liquor dispensed, at least while placing it on the bar. The court by proper instructions left the question to the jury whether defendant, was committing the offense of which he was convicted in the presence of the officer at the time of his arrest.
The verdict returned by the jury found appellant guilty of keeping and maintaining a common nuisance at No. 708 Kansas avenue, in the city of Topeka, on July 3, 1903, “as claimed in this prosecution.” Because the verbal charge specified a back room on the first floor of a two-story building at No. 708 Kansas avenue as the place of the commission of the offense it is urged that the vex’dict was not responsive to the charge, and did not sixstain a sentence under it.
It must be remembex’ed that the charge against the accused was not in writing. He was tried on the verbal statement of a police officer, who first made the accusation in the presence of the offender in the police court and afterward testified under oath to the charges preferred. It was not error for the court to i’efer in the instructions to “the place described in the evidence” when commenting on the location of the offense. By failing to demand a written complaint appellant waived technical averments against him,, and cannot now be heard to complain that information respecting the nature of his offense was conveyed to him verbally. Of the general scope of the charge he was amply informed by the preliminary statement of the officer; the details were given in the testimony.
That part of section 813 of the General Statutes of 1901 which authorizes an arrest upon view of a crime committed in the presence of a police officer, without warrant, is attacked as unconstitutional because in violation of section 15 of the bill of rights, which guarantees security against unreasonable searches and seizures, and for other constitutional reasons.
This record does not present a case for the consideration of the question urged. The regularity of the appellant’s arrest was not challenged in the police court or the district court. When convicted in the police court he entered into a recognizance on appeal. He appeared and contested the case on its merits.
In The State v. Gleason, 32 Kan. 245, 4 Pac. 363, it was held that under section 15 of the bill of rights, which provides that no warrant shall be issued to seize any person but on probable cause, supported on oath or affirmation, a complaint or information filed in the district court on information or belief, charging a misdemeanor, does not authorize the issuance of a warrant for the arrest of a party so charged. In The State v. Blackman, 32 Kan. 615, 5 Pac. 173, a defendant convicted under an information sworn to on information and belief went to trial on the merits without making any objection to the sufficiency of the information or its verification. It was held that he had waived all defects.
In The State v. Bjorkland, 34 Kan. 377, 8 Pac. 391, the court went further. Informations charging offenses under the prohibitory liquor law were sworn to on information and belief. Motions were made to quash the warrants after defendant had entered into recognizance for his appearance. It was held that as the party was not held on the warrants they had spent their force, and the question of wrongful arrest was waived. The same ruling was made in Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735.
That a conviction was had without a written complaint does not impair the appellant’s constitutional rights. He was entitled to a written complaint on demand, which he did not make. This court has held, several times that a trial by jury may be denied in the police court if there are no unreasonable restrictions, on the right to appeal to a court where a jury may be-had on demand.
(80 Pac. 29.)
The judgment of the district court is- affirmed.
All the Justices concurring. | [
-80,
-30,
-88,
-33,
58,
112,
42,
-72,
83,
-13,
-9,
115,
-23,
82,
1,
41,
43,
125,
84,
73,
-60,
-73,
70,
65,
-46,
-45,
-38,
-43,
-75,
-2,
-28,
-4,
79,
-76,
67,
-35,
38,
-64,
-61,
92,
-114,
5,
-87,
-32,
-45,
0,
52,
59,
35,
11,
113,
14,
-13,
42,
24,
-45,
-83,
60,
-53,
-83,
-16,
-8,
-104,
-99,
-50,
22,
-93,
32,
-100,
-123,
88,
46,
-102,
49,
1,
104,
113,
-92,
-126,
116,
45,
-119,
44,
102,
98,
33,
93,
-21,
-88,
-115,
60,
62,
-99,
-89,
25,
89,
65,
8,
-74,
-99,
109,
84,
35,
-12,
-13,
85,
-39,
56,
7,
-53,
-74,
-111,
-113,
48,
-126,
95,
-21,
3,
32,
97,
-59,
126,
92,
117,
113,
-103,
-114,
-100
]
|
Per Curiam:
The errors complained of in this case are confined exclusively to the sustaining of a motion to suppress certain questions asked by the plaintiff of his witnesses while taking depositions. An examination of these questions satisfies us that the rulings of the court were right.
The judgment is affirmed. | [
-80,
124,
-59,
-99,
-118,
-95,
48,
-114,
-59,
-127,
-73,
51,
45,
-62,
-100,
103,
-10,
107,
81,
99,
85,
-95,
30,
-47,
-10,
-10,
-14,
85,
51,
-17,
-12,
-100,
76,
48,
-94,
-43,
98,
-54,
-59,
86,
-58,
31,
-120,
-19,
-7,
116,
36,
123,
24,
15,
113,
-33,
-29,
42,
31,
-57,
41,
56,
-22,
-31,
-29,
-8,
-97,
13,
109,
4,
51,
38,
28,
66,
-40,
46,
-126,
53,
1,
-4,
50,
-76,
66,
-44,
43,
-7,
-96,
102,
98,
48,
105,
110,
-80,
-104,
111,
126,
13,
-89,
-101,
1,
-55,
39,
-89,
-3,
52,
48,
7,
-18,
-20,
-36,
31,
108,
11,
-113,
-58,
-77,
-113,
124,
-100,
-62,
-1,
-77,
20,
80,
-51,
-24,
92,
-117,
25,
-101,
-114,
-74
]
|
The opinion of the court was delivered by
Brewer, J.:
The defendant Reicheniker was the agent of plaintiff for the sale of sewing machinas, etc. The agency was terminated, and the agent sued for alleged balances due, and property withheld. Upon the trial, defendant offered testimony tending to show that he was entitled to commissions on the sales made by him, and that he had been a good, faithful and energetic agent. In rebuttal plaintiff offered testimony to prove that said agent improperly retained the moneys of plaintiff in his possession, and also that he had not acted as a faithful and energetic agent, which testimony was rejected on the objection of defendants. In this was error. An agent’s right to commissions is not absolute. It depends ■on the manner of performing his duties. It probably would not be forfeited by a simple lack of energy. But it might be by an improper retention of his principal’s funds, or by acts <of unfaithfulness to his trust. True, not every slight omission of duty will work a forfeiture; nor are we able to indicate beforehand, in this case, how grievous must have been the omission to deprive the agent of compensation. We cannot even conjecture whether any dereliction of duty can be shown. It is •enough to say that the plaintiff had a fight to show it if he •could, and that he sought to do so and was refused. The rule in reference to agents is well laid down in Story’s Agency, ■'§ 331: u In the next place the agent is entitled to his commissions only upon a due and faithful performance of all the ■duties of his agency in regard to his principal. * * * If, therefore, the agent does not perforin his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskillfulness in the business of his agency, he will not •only become liable to his principal for any damages which he may sustain thereby, but he will also forfeit all his commissions. Slight negligence or slight omissions of duty will not indeed ordinarily be visited with such serious consequences, although if any loss has occurred thereby to the principal it will be followed by a proportionate diminution of the commissions.” Varnum v. Gregory, 21 Iowa, 326; Sea v. Carpenter, 16 Ohio, 412. For this error the judgment of the district court must be reversed, and the case remanded for another trial-
All the Justices concurring. | [
-112,
-2,
120,
-3,
26,
32,
58,
-38,
-109,
-31,
55,
115,
77,
-22,
16,
63,
115,
109,
80,
106,
-41,
-77,
23,
43,
-42,
-109,
-39,
-51,
-79,
79,
116,
76,
77,
32,
74,
-43,
-26,
-126,
-115,
24,
-118,
4,
24,
-22,
-7,
64,
48,
61,
20,
75,
65,
-82,
-21,
42,
21,
79,
47,
46,
43,
-79,
-32,
-72,
-70,
-115,
95,
20,
-111,
38,
-104,
39,
-8,
42,
-128,
53,
9,
-23,
123,
-74,
-122,
116,
75,
-117,
-88,
98,
103,
48,
49,
-27,
-7,
-56,
-82,
-37,
-97,
-25,
17,
88,
11,
9,
-74,
-100,
121,
2,
6,
-20,
-30,
29,
-33,
100,
11,
-121,
-58,
-93,
-115,
96,
-98,
-117,
-17,
-121,
49,
113,
-49,
-96,
93,
1,
120,
-97,
-114,
-24
]
|
The opinion of the court was delivered by
Brewer, J.:
May, Weil & Co., judgment creditors of A, Q,. Monroe, brought their action to subject to their judgment-two pieces of real estate in the city of Atchison, standing in the name of Mrs. H. A. Monroe the wife of the judgment-debtor. As to one piece, the district court found that it was the homestead of the Monroes, and therefore exempt. The other it found was subject to the lien of such judgment, and ordered it sold in satisfaction thereof. This portion of the findings and decree tiñe plaintiffs in error seek by this proceeding to reverse.
The case was tried 'by the court without a jury, and the facts specially found. The testimony was not preserved in the record, so that the only question before us, is, whether the facts found support the conclusions of law and the judgment. The material facts arc these: Mrs. Monroe had at her marriage a small sum of money, and during the year 1870 earned a little larger sum by teaching and writing. These two sums bj^ our laws were her absolute property, and not liable for her husband’s indebtedness: Ch. 62, ' || 1, 4, Gen. Stat., 562. She could loan them to any one, not excepting her husband, and thereby create a valid indebtedness to herself personally. She did loan them to her husband upon an agreement that they should be repaid to her at some time in the future. As against the bonafides’ of this transaction, and the validity of this indebtedness, there is nothing in the findings to raise a suspicion. True, there was no time fixed for the repayment; but a loan on call, or for an indefinite time, is no curiosity in business transactions between strangers.- The amount earned by teaching and writing in 1870, as found by the court, was “about $570,” Whence the uncertainty, as to the exact sum, arose, we can only conjecture. Wo are not at liberty to conjecture bad faith. It might spring from a doubt in the mind of the court as to its recollection of the testimony. It might result from a difference between the witnesses in some small item, or from an over-cautious method of statement, by one or other of the parties. It might very naturally arise from the mutual confidence and trust of husband and wife. Neither doubting the' ■other, and never contemplating a controversy with strangers, it would not be strange if both were unable to name the ■exact cent. But whatever may have been the cause of this indefiniteness, one thing is of old settled law—wrong-doing, bad faith, are matters of proof, not presumption. A bona fide indebtedness of about $910, from husband to wife, then, existed, as found by the court. The payment of this indebtedness would be no fraud upon creditors, create no trust in their favor. In December 1870 this sum, or nearly this sum, was paid to Mrs. Monroe in this way, the payment being made upon the suggestion of Mr. Monroe, and by agreement between them. She negotiated with a Mr. Wagcnhols a trade for a lot at the price of $850. “Two or three days thereafter she sent her husband as her agent to Mr. Wagenhols with directions to look at the property, and, if it answered Mr. Wagenhols’ ■description, to pay Mr. W. $850, and receive the deed for her.” He went as directed, found the property as represented, paid the money, and took the deed in her name. This by their agreement was a repayment of the money borrowed. Who could be wronged by it ? The right of a •debtor to pay one creditor, in full, before paying another anything, is absolute, and unquestioned. It is no wrong to the latter. Mrs. Monroe was, so far as this transaction is concerned, her husband’s creditor, would have shared with other creditors in a distribution by an assignee of her husband’s property, and could rightfully receive payment in Trill before .any others received a cent. It may be said such rule as this opens the door to fraud; that a husband may borrow money from his Avife, go into business, receiA^e credit on the strength of his apparent property, Iía-c cxtraAragantly for years, and the moment any pressure comes, pay his Avife in full and let the other creditors Avho have trusted him go Avithout anything. In this AA'ay a man may 1íatc on his creditors’ property. The same, thing might happen if a man disposed to fraud was doing business on capital borrowed of anybody else. Whether further legislation be needed in such cases, is-not for ns to say. Whether the secresy of such-loan might not sometimes invalidate it, is a question to be decided when fairly presented. It is enough, in this case, to decide, that the repayment, in good faith, of a loan from his wife, does-not defraud the other creditors of the Imsband, or create a. trust in their favor.
The questions thus far discussed are in this case hampered with others which we must now consider. In September 1869, Mr.-Monroe purchased a farm for $3,700, took a deed in his own name, and occupied it as a homestead. This was before he had borrowed from his wife any but $340 at the time of their marriage. In November 1870, he sold and conveyed this farm, receiving in exchange a house and lot in Atchison, and $1,600 in notes secured by mortgage. Possession by agreement was to be exchanged on the 1st of March following. It vras so exchanged, and thereafter this city property wTas occupied and claimed by the Monroes, as their homestead. The deed for the house and lot was made to Mrs. Monroe. This was-, done by direction of Mr. Monroe, “and without any agreement or understanding between.the parties that such conveyance was in satisfaction of the claim for the money loaned her husband.” One of the notes taken in payment of the farm was used in the purchase of the lot from Mr. Wagen-hols. The conclusion to which the court belowr came, was, that the house and lot received in exchange for the farm were exempt as a homestead, but that placing the title to this-homestead in the name of Mrs. Monroe was in equity a payment of the indebtedness to her, (the consideration expressed in the deed for this property being $3,000,) so that thesubsequent deed of the Wagenhols lot was in effect only a voluntary conveyance of the husband’s property, which could be set aside, and the property reached by creditors. That the homestead exemption covered the Rose house and lot, seems to us clear. True, there was a period of time between the execution of the conveyance, and the taking of possession. But the transaction, as it appears to us, was no-more than the exchange of homesteads. Mr. Monroe traded his homestead in the country for one of less value in the city. When he gave possession of the one, he took possession of the other. There was no intermediate homestead. Now, ail legislation must be construed with reference to settled usages, necessary facts. No man will enter premises until he has some right to enter. The right is determined before the entry is made. Occupation of a homestead succeeds, in point of time, its. purchase. This is true,-except in a few instances, as, where one buys a house he has theretofore occupied as tenant. To give a fair and reasonable interpretation of the homestead law, this fact must be recognized. The purpose of that law was to secure to each family its homestead. We may not' defeat this beneficent purpose by strict, technical, arbitrary constructions. As we said in the case of. Edwards v. Fry, (ante, 417, 425,) “A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may secure ab initio, a homestead inviolability.” A man may sell his homestead, and give good title, no matter how many judgments may be standing against him. Morris v. Ward, 5 Kas., 247. The proceeds of that sale he may reinvest in a homestead, and though he do not actually occupy until after he has completed his purchase, and secured his title, still, if he purchase it for a homestead, and' enter into occupation within a reasonable time thereafter, no-lien of existing judgments will attach. We need not however pursue this branch of the case any further, for the plaintiffs in error make no complaint of it; and though defendants in error took exceptions, and have discussed the question in their brief, the case is not so before us as that we could give them any affirmative relief. We have said thus much, and indicated our views on the question, to save further litigation on the part of defendants in error.
We come now to the remaining question involved. • Was- the act of Mr. Monroe, in placing the title to the homestead in his wife, a payment of his indebtedness to her? After a careful consideration of the question, we are constrained to answer it in the negative. A debt cannot be paid with anything but money, except by the consent of the creditor. No amount in value of property will cancel a debt, unless the creditor choose to accept it. He who loans money has a right to insist that money be returned. That is the only legal tender. And though Mr. Monroe intended the homestead as payment, it needed Mrs. Monroe’s consent before it became payment. But the findings show that 'neither party intended or considered it payment. They intended and made payment in another way. Nor is there anything in the transaction of which creditors can complain, or upon which the)- can base any equity. It was a matter of entire indifference to them whether the homestead was in the husband’s or wife’s name. In either case it was exempt from their claims. If placing the title in the wife’s name had, removed so much property from the roach of their claims, it might give them some pretense for insisting that no more property should be thus removed. But where the homestead is alike exempt -whether in the husband’s or wife’s name, we fail to sec why placing it in the Avife’s name gwes the creditors a right to call that a gift which the parties made a payment. It is of equal logic with that AAhich 'Avould hold that placing a homestead in a wife’s name Avas a conveyance to defraud creditors. The homestead is something toward which the eye of the creditor need never be turned. It is an ■element which may never enter into his calculations in his efforts to collect his debt. He may as well ignore that, as he .does now- (except in cases of fraud) the body of the debtor. Entertaining these A-iews, it seems to us the judgment in the ■district court should lia\-e been entered on the findings for the defendants, the plaintiffs in error here. The case will therefore be remanded to that court, Avith instructions to set aside the judgment heretofore entered, and to render judgments for the defendants in that court, for the costs of suit.
All the Justices concurring. | [
-15,
104,
-11,
-82,
10,
96,
42,
-38,
96,
-128,
39,
83,
73,
-37,
16,
105,
-14,
73,
80,
106,
93,
-77,
23,
-21,
-46,
-13,
-37,
-51,
-79,
77,
-28,
-41,
12,
32,
-54,
-99,
-26,
-54,
-63,
84,
-114,
-123,
-119,
100,
-39,
64,
48,
59,
70,
72,
-79,
46,
-13,
44,
29,
74,
105,
46,
107,
57,
112,
-8,
-98,
-115,
79,
17,
49,
52,
-40,
71,
-56,
40,
-112,
113,
9,
-24,
114,
-74,
6,
-44,
101,
-85,
45,
118,
103,
49,
37,
-23,
-2,
-104,
47,
-33,
-115,
-89,
16,
88,
-125,
9,
-68,
-99,
125,
64,
7,
122,
-18,
-107,
29,
100,
13,
-101,
-10,
-79,
9,
118,
-102,
1,
-29,
-29,
51,
97,
-51,
40,
93,
66,
114,
-111,
-114,
-67
]
|
The opinion of the court was delivered by
Brewer, J.:
This is a contest over an election for the relocation of the county-seat of Osage county, and the question which meets us on the threshold is, as to the effect on this proceeding in contest of the repeal, prior to its determination, of the statute under which it was had. The proceeding was commenced under ch. 27 of Laws of 1869, p. 101, which act provides fully for all proceedings in the case, including that of a review by this court. In other words, it is a statute providing for the contest of elections of this kind, giving a remedy by proceeding otherwise unknown to the law. After suit commenced, issue was joined therein -as provided by this peculiar statute of 1869, and a large volume of testimony was taken to substantiate the issue so joined. Continuances were had until the time of the final trial, at which a motion was made to dismiss the proceeding, ■on the grounds that the statute authorizing the proceeding had been repealed. (Laws of 1871, ch. 79, §10, p. 194.) The court denied the motion, and an exception was duly taken. It will not be disputed that the repeal of the act by the statute of 1871 is as full and complete as language can make it. “Is hereby repealed,” is the language used. This proceeding is alone authorized by the act of Í869. It is purely statutory. Without that cxpi-ess statute it could not have been had, but the party would have been forced to resort to other means of redress for his supposed injuries. It will not be denied that the ■ordinary effect of the repeal of a statute is to put an end to all proceedings under it, then pending and undetermined. So that unless there be something to take this out of the ordinary rule, the point is well made, and the proceeding should have been dismissed. Chap. 104 of Gen. Stat., p. 998, is entitled “an act concerning the construction of statutes.” It is, so far at least as any question here is concerned, simply a continuation of the law of 1859. It purports to contain rules for determining the meaning and extent of certain words and phrases when used in the statutes, as well as the-effect of certain acts and doings of the legislature. The first section commences in this way: “In the construction of the statutes of this state, the following rules shall be observed, unless such construction would be inconsistent with the-manifest intent of the legislature, or repugnant to the context of the statute: First, The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.” Two questions are made: What is the effect of this statute on after legislation? and, What is the power of the legislature-in this direction? In regard to the latter ques- . ° * (¿on it may be conceded that each legislature-is supreme and independent of those preceding, so far as matters of naked legislation are concerned; and where nothing results in the nature of contracts, or vested rights, no one-legislature can bind another. In determining its' rules of procedure, the effect of its enactments, in deciding what past laws shall stand, and what be repealed, each legislature is free and absolute. “ Of no validity and void are, it is alleged, such acts as affect to bind future parliaments:” Dwarris, 75. “ One legislature cannot abridge the powers of a succeeding legislature:” Per Marshall, C. J., in Fletcher v. Peck, 6 Cranch, 335. The right to contest an election is no vested right- Given by one legislature, it may be taken away another. Even the commencement of a contest gives no vested right to complete it. “In medias-res,” a legislature may intervene, repeal the statute, and terminate the litigation. The power of the.legislature of 1871 to stop this proceeding in contest, by a repeal of the statute-under which it was pending, is therefore beyond controversy. Returning now to the first question, we inquire as to the effect of the statute cited (ch. 104, Gen. Stat.,) on after legis lation. The repeal of a statute does not affect “any proceedings commenced.” ' The plain import of this language is, that any proceeding commenced U]1(jer a statute may be prosecuted to completion, notwithstanding the repeal of such statute. To what does this language refer? the present, alone, or both the present and future? Does it apply only to laws then in force, or is it also prospective in its operation, and applicable to all future legislation until it is itself in terms repealed? A careful examination of the whole statute seems to us to clearly ■show that it was intended to be of prospective and permanent application. By it the legislature laid down certain rules to guide in the interpretation of all legislation, present and future. Of course the rules themselves are subject to future legislative supervision and repeal; but unchanged, and unrepealed, subsequent legislation must be understood as made with reference to and upon the basis of them. They constitute a set of quasi legislative by-laws. Eor instance, the twenty-seventh claiise recites that “the phrase, ‘under legal disability,’ includes persons within the age of minority, or of unsound mind, or imprisoned.” By it therefore, whenever in any subsequent law that phrase is used, it will be understood that all these differept classes of persons are meant. If a legislature wishes to exclude any one of these classes from the provisions of a law it is passing, it must use some other phrase than “under legal disability,” or use some words or terms of exclusion, or change the present statutory definition. A legislature leaving these rules and definitions unchanged, virtually re-enacts and continues them. By this no power is ascribed to one legislature, which is denied to a subsequent; but granted the power to change, or repeal, a failure to do either implies an intention to continue them in f°rce- Hence it seems to us, that if the legislature of 1871 intended to stop all proceedings then pending under the contest-law of 1869, it should have added a clause in terms ending such proceedings, or else .suspended or repealed the law of 1868 so far as it declared the effect of a repeal of a statute. The case stands thus: A law is in force declaring that the repeal of a statute shall not affect proceedings already commenced. Proceedings are commenced. The statute is then repealed. Can we say that the legislature intended more, by that repeal, than the law declared should be the effect of a repeal? We think not; and hence hold that there was no error in overruling the motion to dismiss the proceeding.
II. The next question that meets us is made on the admission of testimony. A witness for defendants in error, Eli Crane, testified that he was at Lyndon on the day of the' election. He further testified: “ I first saw Dr. Calhoun. He was a resident of Lyndon, and a property-owner, and postmaster there. I think he was interesting himself in the election.” Question by plaintiff’s counsel: “What remarks were addressed to you by him that day?” Objected to as incompetent, and hearsay testimony.. The objection was overruled, and defendants excepted. Other questionsoí like nature were asked, objections ot the same-kind raised, and like rulings and exceptions; and in response the witness testified substantially, that the Doctor invited him to go over to Douglas precinct with a party, and vote thereunder assumed names. He subsequently testified that the-party went and thus voted. Again the witness, after testifying that a person residing at Lyndon voted at Douglas-precinct, was asked: “ Do you know from his own statements, under what name he voted?” Objected to as hearsay, overruled, and exceptions. Answer—“He told me ‘R. Crum.’”' Q.—“What statement did he make as to the number of' times he voted, at that time or within a day or two?” Objected to as incompetent and hearsay testimony. Objection overruled, and exception. Answer—“He stated to me ona the same day that he had voted five times that day.” Still again the same witness, against defendants’ “objection and exception,” was allowed to state the conversations of various-persons whilst returning from the election at Douglas precinct, and as to their voting, and the number of votes cast by them. That so much of this testimony as purports to give the statements of third parties as to the number of times and the names under which they had voted, is hearsay,, and incompetent, seems to us clear. It is the testimony of what other persons told the witness, persons not parties to the suit, so that their admission could be receivable. These declarations were not made at the polls by persons conducting the election, and so as to make part of the res gestee; nor do they accompany a principal fact which they serve to qualify or explain. They are simply statements, concerning past transactions by strangers to the record. They come within none of the exceptions to the rule which excludes, hearsay testimony. It was perfectly legitimate and competent to prove the casting of fraudulent votes, but it was not competent to prove that fact by the statements of parties who claimed to have cast them. It may be said that the contest was between Lyndon and Burlingame, and that all persons supporting either were principals on the one side or the other. But this is true no more in case of a contest between towns for the county-seat, than between individuals for an office. Surely, a candidate for the office of governor would hardly feel that all who voted for him so far represented him that in case of a contest their admissions and statements could bind him on the question of fraudulent votes. No more is it true in the present case. We have examined the cases of People v. Pease, 27 N. Y., 45; State v. Olin, 23 Wis., 319, and the note in 3 McCord, 230; and so far as they enunciate any principle contrary to the doctrines here announced we disapprove them. It may be said that the testimony was immaterial,, and that the error worked no substantial injury to the plaintiffs in error, because, first, there was sufficient testimony without this to support the findings, and secondly, there was no finding that these specific fraudulent votes, or indeed that any fraudulent votes, were east. The rule that requires this court to sustain the findings of the district court unless clearly against the weight of evidence avoids the first reason, for we cannot say how much this testimony influenced the court in its findings, nor determine whether without it the findings would have been as they are. If testimony is erroneously received which may have influenced the court or jury in the findings or verdict, we cannot call the error immaterial. The findings or verdict must be based upon nothing but competent testimony before any presumption in favor of their correctness will arise in this court. For, otherwise, the court or jury may, disbelieving the witnesses who give competent testimony, reach their determination mainly or wholly on the incompetent evidence, and so a party obtain a judgment he is not in fact entitled to. The record must be clean, which, when passed upon by court or jury, is sought to be sustained in this court because it has been so passed upon. Nor is the second reason sufficient, for while there is no finding of the casting of specific fraudulent votes, the findings show that the learned judge of the district court was convinced of a fraudulent combination in Lyndon to carry the election, a combination to which the judges and clerks of election, as well as voters, were parties, and the testimony of this witness Crane, if competent, tends strongly towards proving such combination. We arc led therefore to the conclusion that this testimony was incompetent, and the error substantial. This would be sufficient to compel a reversal of the judgment.
We might stop here, but there are questions presented in the record, and discussed by counsel in their briefs, which will arise on a second trial of this case, and which therefore demand our consideration. The result of the election as shown by the canvass of the county commissioners was a majority of 146 votes for Lyndon. At Lyndon precinct 421 votes were counted, of which all but one were for Lyndon. Rejecting the votes cast at Lyndon, Burlingame received a majority. The conclusion of law reached by the district court was, that the election “ was fraudulent, illegal, a'nd void, so far as the voting precinct of Lyndon was concerned,” and that therefore Burlingame remained the county-scat. Those findings of fact upon which the district judge based his conclusion that the election at Lyndon was illegal, are as follows:
3d.-(In substance, that the election was held in a building in which liquor was sold, though in an adjoining room, and •one separated from the election-room by a partition without floor or other passage.)
“4th.-The votes at said election at said precinct were received through a space in the sash of the front window left after removing one pane of glass, which said pane of glass had been removed from said window for that purpose, the space so left being 12 by 14 or 16 inches, and that the said front window with the exception of the space so left as aforesaid, was darkened or obscured by paint, or some other substance, in such a manner that no person on the outside could see what proceedings were being had on the inside of said room during said election, except through said space left open as aforesaid, and very frequently not through this space whilst persons were voting.
“ 5th.-That said window was so darkened or obscured at the instance and request of a person who was actively engaged in said election, in the interest of the town of Lyndon for county-seat of said Osage county, and on the evening before said election, and with a view of holding the said election.
“ 6th.-That the friends of Burlingame were not afforded a full and fair opportunity of challenging votes at said precinct at said election, or of free access into the room where such election was held during the voting, dr of seeing how the election was conducted inside the room, but were permitted to be present at and during the canvassing of the votes polled at said precinct. That the judges of election at said precinct were implicated in this hindrance, and seemed to act in unison Avith the parties outside Avho contended that no one from Burlingame had a right to be in the room during the voting, or had a right to challenge Arotes at- said Lyndon precinct at said election.
“ 7th.-That no attention Avas given by the judges of election at said Lyndon precinct during said election to challenges of votes when made by the friends of Burlingame.
“8th.-The judges and clerks at said Lyndon precinct, at said election, AArere partisans for the toAvn of Lyndon, and had an interest in having the county-seat of said Osage county located at said toAAm of Lyndon.
“9th.-That persons in the interest of the said town of Lyndon were allowed free access to tbe room where the voting was conducted at said election at said precinct during the-holding of such election.
“10th.—That the plan pursued at said election at said precinct afforded ample opportunity for perpetrating the grossest frauds, and afforded no adequate if any means of detecting them.”
13th, 14th, 15th, 16th.-(In substance, that there were three-voting precincts in the township in which Lyndon was situated, and that the township trustee, and one of the two justice» of the peace of said township, were acting as judges in the other precincts.)
“17th.-That there were but two judges of election either elected, appointed, qualified, or acting at said Lyndon precinct at said election on the 18th of October 1870, and that one of such judges was R. H. Wynne, one of the justices of the peace for said municipal township, and the other of such judges was Moses Bradford, sr.; that said Bradford was not present among the bystanders at the polls when he was elected as such judge, but was elected by the persons at the polls, and afterwards notified of such election, after which he appeared, was qualified, and acted.
“18th.-That the clerks of election at said election at said Lyndon precinct were not appointed or selected by the judges of election at said precinct.”
These are all the findings of fact which bear upon the question of fraud or illegality in the election at Lyndon. Questions affecting the purity of elections are in this country of vital importance. Upon them hangs the experiment of self-government. The problem is to secure, first, to the voter a free, untrammeled vote; and secondly, a correct record and return of the vote. It is mainly with reference to these two results that the rules for conducting elections are prescribed by the legislative power. But these rules are only means. The end is the freedom and purity of the election. To hold these rules all mandatory, and essential to a valid election, is to subordinate substance to form, the end to the-means. Yet on the other hand, to permit a total neglect of all the requirements of the statute,, ancj gfcill sustain the proceedings, is to forego the lessons of experience, and invite a disregard of all those pro visions which the wisdom of years has found conducive to-the purity of the ballot-box. Ignorance, inadvertence, mistake, or even intentional wrong on the part of local officials^ should not be permitted to disfranchise a district. Yet rules, uniformity of procedure, are as essential to secure truth and exactness in elections as in anything else. Irregularities-invite and conceal fraud. “That a mere irregularity .on the-part of the election officers, or their omission to observe some merely directory provision of the law, will not vitiate the poll, is a point sustained by the whole current of authorities j but there has existed a great conflict of opinion as to what-is an irregularity, and what is matter of substance.” Leading Cases on Elections, Brightly, p. 448. The rule is thus-laid down by this court in th§ case of Jones v. The State, 1 Kas., 279: “Unless a fair consideration of the statute shows-that the legislature intended compliance with the- ... x provision in relation to the manner to be essential to the validity of the proceedings, it is to be regarded as-directory merely.” Following the rule thus laid down,, which seems to us to state the law succinctly and clearly, let us examine these different facts found and see how far they sustain the conclusion. We will reverse the order in which they are stated by the district court. And first, as to the irregularity in the mode of appointing or electing the clerks and judges, and the fact that there were but two judges-qualified or acting. How the clerks secured their positions-we are not told. They should have been appointed by the judges. Gen. St-at., 404, § 3. They were not. Yet the judges accepted them as clerks, recognized them as such. One of the judges was so de jure. Both judges and clerks-were officers defacto. They formed an election board. They were recognized as such by all persons having occasion to-deal with an election board during the whole term of office-of such board. Their acts as such officers can no more be questioned, collaterally, now, than can the acts of one who-has served as mayor of a city during a term of two years,, with the general recognition of community, be questioned. •after the expiration of such term. The manner of their elec^011 or appointment is merged in their assumptioii of power, and the public recognition of their right. The shortness of their term of office does not affect the rule. They were officers de facto during the whole of the term. In Sprague v. Norway, 31 Cal., 174, the inspectors were appointed by the judges, and not by the electors present, as required by law. Still they were held • officers de facto, and the election was sustained. And in State v. Stumpf, 21 Wis., 579, two inspectors acted instead ■of the statutory board of throe. But the provision of the .statute was declared directory, and the election valid. See also, People v. Cook, 14 Barb., 285-289, and 8 N. Y., 67; People v. Hilliard, 29 Ill., 423; Dishon v. Smith, 10 Iowa, 220; McKimmey v. O’Connor, 26 Texas, 5; Thompson v. Ewing, 1 Brewster, 99; McCraw v. Harrolson, 4 Cold., 34; Boilearis v. Case, 2 Parsons, 503; People v. Cicott, 16 Mich., 324. Secondly, concerning those findings which are simply that there were both preparations and opportunities for and inclinations to fraud, it is enough to say that 'fcbny of themselves alone amount to little or nothing. You can never infer guilt from simply a preparation, and an opportunity for, or an inclination to crime. They may be important to sustain or explain the • direct or circumstantial proof of the fact of crime. It is in that view, doubtless, that they were introduced into these findings by the learned judge who tried this case; and we refer to them simply lest our silence might be misconstrued •on a second trial into an intimation that they were sufficient to sustain' the conclusion. Thirdly, as to the findings that the judges refused to permit the friends of Burlingame to l"3 'present in the room during the reception of votes, and refused to recognize- the challenges ma(je by them. Section 18 'of the election law {Gen. Stat., p. 408,) directs the judges to permit the candidates or their friends, not exceeding three, to be present in ,ihe room during the time of receiving and counting the votes. Section 10 of the same law requires the judges, whenever one offering to vote is challenged by an elector, to* administer to him a certain specified oath, and then question him as to his qualifications. The requirements of these-two sections were disregarded. Did this vitiate the election?' Are these sections mandatory, or directory? Applying the-rule laid down as above, we cannot look at these provisions-as other than directory. They do not seem in the nature of thiñgs essential to the validity of the election. There may-even be occasions where a disregard of them is almost or quite a necessity. Suppose the election be appointed and held in a room so small that the judges and clerks, with their tables and election boxes, fill it; must §18 be observed, or* the election rendered void? Or again: suppose the only candidates or friends of candidates who apply for admission, are filthy and foul with the fumes of tobacco and rum; can they not be refused admittance, without peril of the election?" Or again: suppose it be evident that an attempt is made by' challenging everybody, whether well-known citizens or otherwise, to delay the voting, so as to prevent some from casting' their ballots; must the judges stop because of a challenge to administer an oath and put questions to one whom they know' has been an old-time elector and citizen? These requirements of the statute are, therefore, as we think, directory. A willful and corrupt disregard of them would subject the-officers to prosecution and punishment. But even such a. disregard would not necessarily vitiate the election, or deprive • the legal electors of their vote. It might be shown, affirmatively, that none but legal votes were in fact received, or" counted, and then the corrupt misconduct of the officers-would work no injury to any but themselves. People v. Cook, 14 Barb., 290, 293; People v. McMannus, 34 Barb., 620; People v. Sackett, 14 Mich., 320; Taylor v. Taylor, 10 Minn., 107. Lastly, the election was held in a building in which, intoxicating liquor was sold. This is forbidden by the statute,,, (Gen. Stat., 420, §64,) which reads: “No poll shall be-opened, or election held, in this state, at or in any building; in which spirituous, vinous, fermented, or other intoxicating liquors, are kept or sold.” That one of the great evils attendant upon elections, (particularly in our cp¿es^ jg the use of intoxicating liquors to influence such elections, all will admit. Many a thoughtful man has gone away from the polls at the end of an exciting election deeply pondering whether after all free government be not yet simply an experiment, with the evidences strongly pointing to failure. We would not wish to weaken any of the .safeguards the legislature has erected against this pernicious influence. Yet no more in this, than in any other case, may we allow our thoughts and wishes, as to what the law ought to be, to control our judgment as to what it is. We do not legislate. We simply expound and decide. The legislature has forbidden the holding of an election in a building where liquor is kept or sold. No penalty is attached by the legislature. Can we attach any? If we could, to whom should we attach it, the innocent or the guilty? The electors do not designate the place. The trustee and justice do. Whom should we punish? Shall we punish the innocent electors, and deprive them of their franchise, because their ballots are received in a room whose selection they had no power to influence? Before we impute such intention to the legislature, we ought to find plain warrant therefor in their language. The trustee designating the place of election is the party violating the law. He ought to suffer the penalty. He cannot plead ignorance of the law. The business of ■selling liquor is conducted so openly he can hardly be unaware of the places where it is done. If therefore he locates the •election in a saloon, or in a building in which is a saloon, he ought to suffer the penalty. No authority is given to ;any one to change the polls, if they have been located in an improper place. The argument made, and the authorities cited by counsel for defendants in error, to the effect that time and place are of the substance of an elec-tion, do not apply to this case. It may be conceded, that when a legislature has designated a particular day -for a popular election, an attempted election upon any other day would be void. The same is true when it has designated a place, and without necessity the place is changed. Knowles v. Yeates, 31 Cal., 82; Chadwick v. Melvin, Brightly Lead. Cas. on Elect., 251; Jucker v. Commonwealth, 20 Penn. St., 493; Miller v. English, 1 Zabr., 317. But here the legislature has not assumed to designate the place. It has committed that trust to certain officers, and the election has been lield in the place they have designated. The complaint is, that the officers have designated an improper place, and not that the electors have assumed to disregard the selection of either the legislature, or any officer. Where the electors have not themselves broken the law, ought they to be disfranchised ? Two other considerations worthy of mention sustain the view herein expressed, that this section is directory. One is, that notice of the time of the election must be posted up at the place appointed at least ten days before each special, .and fifteen before each general election: Gen. Stat., p. 404, § 5. Now, even if the trustee has designated a room in a building in which at the time of designation no liquor was kept or sold, how can he prevent the occupation of other rooms in the building, prior to and on the day of election, for the sale of liquor? Surely, he is not compelled to secure a building with only one room, or else hire a whole building to protect the one room. The other is this: The keeping as well as the sale of liquor is within the terms of the prohibition ; and the statute is silent as to quantity. One gill is •equally with a barrel-full within the letter of the section. Nor is it made a question of knowledge on the part of the officers or electors, but one of fact. Can it be that the discovery, subsequent to an election, of the presence of a jug of whisky in some room of the- building in which an election is held, even though ordinarily kept there by the occupant, will vitiate that election? On the whole case, therefore, we do not think the facts found warrant the conclusion.
The judgment of the district court will be reversed, and the case remanded for a neAv trial. On such trial, if illegal votes were cast at Lyndon, or elsewhere, sufficient to change the result, that fact may be shown, as well as any additional circumstances tending to impeach the entire poll.
All the Justices concurring^ | [
-80,
-22,
-75,
93,
14,
96,
66,
-108,
120,
-95,
37,
83,
-87,
-102,
0,
121,
-5,
13,
81,
107,
-60,
-73,
87,
-37,
-74,
-9,
-45,
-43,
-77,
79,
-10,
-1,
76,
48,
66,
-11,
68,
-62,
-59,
-36,
-114,
-126,
-119,
76,
80,
-21,
56,
123,
82,
11,
17,
-70,
-29,
42,
24,
-61,
-55,
44,
-53,
-83,
81,
-71,
-98,
5,
127,
6,
49,
-90,
-100,
-125,
72,
58,
-104,
17,
16,
-4,
115,
-74,
-122,
-108,
45,
-103,
44,
98,
103,
35,
37,
-17,
-88,
-120,
14,
27,
29,
-90,
-110,
89,
107,
9,
-74,
-99,
117,
16,
6,
126,
-25,
69,
17,
60,
6,
-118,
-48,
-73,
79,
62,
-110,
67,
-29,
-93,
-80,
113,
-59,
-10,
91,
-57,
50,
27,
-113,
-100
]
|
The opinion of the court was delivered by
Valentine, J.:
The plaintiff in error was the superintendent of the National Cemetery at Fort Scott. Through ¡an agent of his, (one A. Chaplin,) he employed Isaac H. Bledsoe, defendant in error, to do some mowing, etc., on said cemetery. The work was done,- and Bledsoe received from Hyde $14 therefor, and then sued Hyde for $46 more. The case was commenced in a justice’s court. Judgment was rendered for the plaintiff, and defendant appealed to the district court, where judgment was again given for plaintiff', for ten dollars—and defendant brings the case to this court. The case is prosecuted in this court for the plaintiff in error (defendant below) by the United States District Attorney, at the request of the Secretary of War. The learned district attorney claims that Hyde in employing Bledsoe acted only as an agent for the government, and that therefore Hyde is not responsible. The law as claimed by the district attorney is probably correct; but it cannot well be applied in this case. The only manner in which the question was raised in the court below was by a motion for a new trial, founded on the ground that the finding of the court, which was a general finding for the plaintiff, was not sustained by sufficient evidence. The court overruled the motion. The evidence upon this point was conflicting, and pretty equally balanced. The court in making its finding upon the same undoubtedly determined that Hyde, in making said contract with Bledsoe, was a principal, and not merely an agent for the government; or, that if he was acting as an agent for the government he did not so disclose his agency as to relieve himself entirely from responsibility, and to render the contract he was then making a contract between the government and Bledsoe, and not a contract between himself and Bledsoe. A portion of the evidence would relieve Hyde from all responsibility, and another portion of the same would make him liable. We cannot determine so well as the court below which to believe, and therefore must presume that its findings are correct. We-suppose we might lay down the following rule, which we think is good law, and determines this case, to wit: Where an action has been tried by the court without the intervention of a jury, a general finding made, a judgment rendered thereon, and a motion to set aside the finding and judgment, and for a new trial, because the finding is not sustained by sufficient evidence, made and overruled, the supreme court will not disturb the finding, judgment; or order of the district court, unless the finding is clearly against the weight of the evidence. The judgment of the court below is affirmed.
All the Justices concurring. | [
-80,
124,
-3,
-98,
58,
96,
42,
90,
95,
-15,
-73,
127,
-23,
-113,
28,
99,
-16,
45,
80,
107,
84,
-77,
19,
35,
114,
-45,
-37,
-59,
51,
108,
-12,
92,
76,
8,
74,
-35,
-26,
104,
69,
86,
-114,
-83,
-120,
-24,
-38,
65,
52,
61,
118,
74,
101,
-66,
-5,
46,
22,
-37,
104,
56,
-23,
40,
-63,
-79,
-114,
-123,
121,
5,
48,
35,
-102,
3,
72,
46,
-112,
53,
1,
-8,
123,
-74,
2,
-11,
71,
-85,
40,
98,
110,
1,
-51,
-17,
48,
-104,
29,
-2,
-115,
-90,
17,
81,
107,
13,
-98,
-99,
51,
16,
-122,
-26,
-29,
93,
93,
40,
107,
-117,
-106,
-9,
-17,
112,
-110,
-46,
-21,
3,
-95,
80,
-58,
-30,
92,
65,
115,
-109,
-115,
-60
]
|
The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Pointer against the Kansas Pacific Railway Co., for injuries claimed to have been caused by the train of the defendant below, knocking down and running over the plaintiff while he was walking on the railroad track of the defendant in the city of Leavenworth. The record of the case is very voluminous, notwithstanding that it is a “case made” under the statutes for the supreme court, and everything expunged therefrom that was thought to be unnecessary for the determination of the questions involved in the case in this court. There are .seventy-six exceptions taken by the defendant below (plaintiff in error,) to the rulings of the district court, and several ■of said exceptions involve more than one question, some of them in fact involve many questions; but we suppose that it is hardly expected that we shall express an opinion upon ■each of the exceptions taken, or upon each of the questions involved therein separately. If our opinion shall be broad .enough to include all the questions raised, without mentioning them in detail, that will be sufficient.
I. The court below committed several errors, but some of the errors committed were immaterial, and will not therefore, •as has been well’settled, require a reversal of the judgment. Civil code, §§.140, 304. We decided in Seibert v. True, 8 Kas., 53, that “ Error in admitting incompetent evidence, which is also immaterial, and clearly does not tend to prejudice the party objecting thereto, is not cause for reversing the judgment.” And we have repeatedly decided, that, where a question is asked concerning a certain matter, and the court permits the question to be answered, and the witness in answering the same says substantially that he does not know anything about the matter, and does not give any evidence concerning the same, it is immaterial whether the court erred or not in permitting the question to be answered: Gulf Rld. Co. v. Owen, 8 Kas., 410; City of Wyandotte v. Noble, 8 Kas., 444; City of Atchison v. King, ante, 550. For the manner of getting rid of an improper answer to a proper question, see Hynes v. Jungren, 8 Kas., 391.
II. Where a question is asked and objected to, and no reason is given for the objection, the court may as a rule, overrule the objection without considering whether the question is objectionable or not, and without committing any error by so doing. 2 Kas., 199, 266; ante, 176, 186.
III. The objection to evidence contained in a deposition, except an objection for ineompetency or irrelevancy, must be made in writing, and filed before the commencement of the trial, or the objection cannot be entertained by the court. Code, §§ 363, 364.
IV. An objection for ineompetency does not raise any question as to whether a question put to a witness is leading or not. The only way to raise such a question is to object to the question because it is leading.
V. After a witness has been examined in chief, and cross-examined by the other party, the court may still in its discretion allow the party introducing him to ask further questions in chief, and upon new matter—the opposite party of course having the right to cross-examine upon the new matter.
VI. Whether the allegations of the petition were sufficient or not we do not think it is now necessary to .decide; for the attention of the plaintiff having now been called to the supposed defects, he may amend before another trial. There may be some question about the sufficiency of J x * the petition; but considering it for-the purposes of the decision of the case in this court as sufficient, we would say, that the plaintiff had a right to show that the place where he was injured was on a public street of Leavenworth; and if he could not show that it was a public street in law, he still had the right to show that it was a public street in fact. And for this purpose if for no other he had a right to show that the public travel was on or over this ground, and to show that such travel was there with the knowledge and consent of the railway •,company. If he should show that the place where the injury occurred was on a public street, either in law or fact, he would not be such a trespasser as would relieve the railway company from exercising reasonable and ordinary care and diligence towards him. In fact, he would not be a trespasser at all. The railway company in such a case would be bound .to run its trains with reference to him, and to every other person who might be rightfully occupying the street. Such persons would have the same right to be on the street as the railway company. In fact, in this case the legal right of the railway company, and that of the public, to use this ground as a street, seems to be about equal. Both derive their right from a city ordinance. The public used this ground for a street, however, long before the railroad was built. If the plaintiff and the railway company each had a right to use said ground, then it was incumbent on each alike to use ordinary care and diligence to prevent and avoid injuries. The plaintiff then had a right to show anything on the part of the defendant that would show a want of proper care, and anything on his own part that would show that he used due care; for if the defendant did exercise ordinary care, or if the plaintiff did not exercise such care, he could not recover. On the other hand, the railway company had a right to show that it exercised the proper care, and that the plaintiff did not do so. If it should be shown on a retrial of this case that the plaintiff had no right to be on the ground where the injury was received, the law of- the case with respect to care and diligence would be very different from what we have stated it. The railway company would not then be bound to run their trains with reference to persons who might be on the track. The railway company would not then. be bound to anticipate persons who might be on the track. The plaintiff also had a right (with proper allegations 7 . . . 0 v 11 0 m his petition,) to show by proof the nature and extent of his injuries, his sufferings, the length of time that he was disabled, the value of his time, his expenses in being-cured, his condition with respect to the injuries at the time of the trial, his prospective condition, or rather the effect the injuries will in all probability have upon him in the future; and this prospective effect of the injuries may bo proved by the professional opinion of the physician and surgeon who attended him, or by any other competent physician and surgeon who has made a sufficient examination of the injuries. Of course it ivas incompetent, for the purpose of showing-the injuries, or their character or extent, or for the purpose of enhancing the damages which the plaintiff expected to recover, for the plaintiff to prove his pecuniary or social condition, whether he was rich or poor^ married or single, or whether he had a family or not. Shaw v. Boston & Worc. Rld. Co., 8 Gray, 46.- Neither of these could throw any light upon the. character or extent of the injuries, nor could either tend in any way to show how much the plaintiff was damaged. Neither could in any way enhance or diminish the amount for which the plaintiff should recover.
VII. The testimony of witness Butts, concerning a conversation had between himself and Hamilton, was clearly fend unquestionably inadmissible, and was highly prejudicial the rights of the defendant. One of the main questions in the case.was, whether the defendant j.|ir0Ug}1 £he negligenee 0f ns servants or agents caused the injuries' complained of. • The defendant claimed that its servants and agents- took all necessary , precaution to avoid injuries to any one who' might be upon the track, and that its servants and agents were not aware of the presence of the plaintiff on the- track until after the accident occurred. On the. other hand, the plaintiff claimed that1 the servants and agents of the company did not take the necessary pre caution to avoid injuries; that they did know, and should have known, of the plaintiff’s presence on the track. Hamilton was the engineer of the defendant who had charge of the engine that moved the train that run over the plaintiff and caused the injuries. Butts had no connection whatever with the Kansas Pacific Railway Company. The conversation between Butts and Hamilton was on the next morning after the accident occurred. Butts testified concerning it among other things as follows: “He (meaning Hamilton) told me that hé saw a man going behind the train just before, the accident happened, and he took no thought of it at the time, and pretty soon afterwards there were some men hallooing to him to stop.' He thought they .were a-fooling him,, and he did not hold up; finally he stopped. The next he saw of the man was between the fire-hox and the tank.” The train' backed on the plaintiff. There is no principle to be found anywhere in the law under which such evidence could be admitted. The only grounds upon which the defendant in error claims it was admissible is,'(and we use the exact words of his counsel’s brief,) as follows: “A question will be mad'e on the introduction óf the evidence of witness Butts, as to the declarations of John Hamilton, the engineer Of the defendant below. Hamilton was in the employ of the defendant below, and' plaintiff was compelled to call him. We do not claim that it was competent to offer this evidence to impeach him, but we do claim that it appearing that he was, to some extent, under the control of the defendant below, we liad a right to prove that we were' surprised in Ills evidence. It being competent to show that we were so disappointed in his evidence, the court could exercise its discretion as to the time when it could be shown that we were-so surprised,' ’and the exercise of such discretion is not error.” It is true that plaintiff had previously called Hamilton as a, witness, but it does not appear that he “was compelled to call him.” There were many other witnesses who saw the transaction, and"whom the plaintiff could, have called, and some of whom he did call. It docs not appear that Hamilton was. to any extent “under the control of the defendant below” while lie was testifying. And it does not appear that the plaintiff or his counsel ever thought or supposed that they were “surprised” at the testimony of Hamilton until the ease was brought to this court. And there is nothing appearing in the record, or elsewhere, that tends to show that they were in .fact so surprised. No such claim seems to have been made in the court below, and there is nothing in this court upon which such a claim could be founded. The testimony of Butts concerning said conversation ivas pure, naked, and simple hearsay testimony. The court erred in admitting it, and for said error the judgment in this case must be reversed. Luby v. Hudson River Rld. Co., 17 N. Y., 131; Bellefontaine Rld. Co. v. Hunter, 33 Ind., 335.
VIII. There are .other questions raised in' this case, but Ave do' not think it is necessary to' decide them. They Avill probably not arise again. Ve Avoijld lioAvever refer to the following recent decisions of' this court Avith reference to questions Avhich' have been raised'in this case, and Avhich may possibly be raised again. First: With reference.to exceptions to instructions to the jury, see City of Wyandotte v. Noble, 8 Kas., 444; K. P. Rly. Co. v. Nichols & Kennedy, ante, 235; City of Atchison v. King, ante, 550; Sumner v. Blair, ante, 521. Second: ‘With reference to verdicts, their form, etc., see National Bank v. Peck, 8 Kas., 660; Copeland v. Majors, ante, 104; Hazzard Powder Co. v. Viergutz, 6 Kas., 471; Arthur v. Wallace, 8 Kas., 267; K. P. Rly. Co. v. Reynolds, 8 Kas., 623. The judgment of the court beloAV is reversed, and new trial ordered.
All the Justices concurring. | [
-80,
-24,
-8,
-97,
10,
96,
34,
-120,
85,
-79,
-25,
115,
-19,
-37,
4,
123,
-10,
63,
80,
106,
-46,
-73,
6,
-14,
-106,
-9,
-39,
-43,
-75,
75,
100,
-42,
77,
32,
74,
-43,
102,
74,
-59,
94,
-50,
4,
-120,
-24,
-37,
-120,
44,
120,
86,
71,
113,
-82,
-13,
42,
28,
-61,
105,
62,
-17,
-11,
-47,
121,
-120,
5,
125,
0,
-77,
6,
-100,
7,
-40,
46,
-104,
53,
1,
-4,
115,
-90,
-126,
-12,
111,
-101,
76,
-26,
99,
33,
29,
111,
-68,
-104,
111,
58,
-115,
-89,
16,
0,
-21,
13,
-106,
-99,
5,
16,
7,
-6,
-25,
5,
31,
108,
3,
-113,
-80,
-111,
-97,
116,
-78,
83,
-5,
-127,
-108,
113,
-52,
-32,
92,
5,
26,
-109,
-113,
-68
]
|
The opinion of the court was delivered by
Valentine, J.:
Without giving any detailed statement of the facts of this case we shall proceed at once to decide the-questions of law involved therein. And first: A member of a partnership who personally, or by a clerk, and with or-without authority from the firm, signs the firm name to a promissory note as surety thereon is individually responsible - upon the note in the same manner and to the same-extent as* if he had signed his own individual name thereto. Second Where the holder of a promissory note signed with the firm-names of two different partnership firms, sues several individuals as members of said firms, and where it appears upon-the trial that one of the individuals sued is not liable because-he is not a member of either firm, and where it also appears-that another of said individuals is not liable because the person who signed the firm-name of one of the firms had no authority to so sign the same,, nor any authority to bind this individual,», the plaintiff may dismiss his action against those two defendants who are not liable .and take judgment against those who are shown to be liable. Gen. Stat., page 183, ch. 21, §4; civil code, p. 637, § 39; pp. 704, 705, §§ 396, 397; and p. 655, § 139.
We do not think that there arc any other questions sufficiently presented by the record to require our consideration. The counsel for plaintiff in error claims that the court below erred in allowing the plaintiffs below to dismiss their cause of action as against the defendants E. L. Hawk and A. F. Royer without prescribing any terms of such dismissal. That was a question principally if not entirely between the plaintiffs beloAV and Hawk and Royer, and not between the plaintiffs beloAV and plaintiffs in error, Silvers and Shryock, Avho were defendants beloAV. The only terms that would have been proper, so far as the record shoAvs, were that the plaintiffs beloAV should pay all costs made by themselves in prosecuting their action against Hawk and Royer, and all costs made by Hawk and Royer in defending the action, and none of these costs should haAe been taxed against plaintiffs in error. Silvers and Shryock are liable (Avithout any judgment being rendered therefor,) for all costs made by themselves; and the judgment should have been rendered against them and in favor of the plaintiffs beloAV for all costs made by the plaintiffs below in prosecuting their action against Silvers and Shryock. Such seems to be the judgment. No improper costs seem to have been taxed against Silvers and Shryock, and hence no error in this respect is apparent. The judgment of the court below is affirmed.
All the Justices concurring. | [
-78,
126,
64,
61,
8,
96,
-86,
-22,
-7,
-127,
39,
115,
-23,
-61,
-128,
107,
-13,
57,
81,
75,
119,
-77,
55,
3,
-10,
-77,
-13,
68,
-79,
79,
-25,
-41,
76,
48,
-54,
85,
-26,
-118,
-127,
-108,
70,
4,
24,
-28,
-7,
-64,
48,
83,
80,
73,
101,
-34,
-77,
47,
62,
79,
44,
44,
105,
109,
-32,
-71,
-98,
5,
95,
16,
51,
101,
-68,
71,
-40,
14,
-120,
57,
9,
-24,
114,
-74,
6,
-12,
43,
57,
-127,
98,
99,
0,
81,
-19,
-68,
-100,
36,
127,
29,
-89,
-79,
88,
1,
13,
-106,
-97,
88,
16,
-89,
-34,
-2,
29,
29,
-24,
11,
-113,
-58,
-77,
-1,
118,
94,
-125,
-18,
3,
17,
81,
-58,
32,
92,
65,
26,
-109,
-49,
-106
]
|
The opinion of the court was delivered by
Valentine, J.:
This was a prosecution for a criminal offense—a misdemeanor—under ch. 113, Gen. Stat., 1095, for cutting down and carrying away timber from land belonging to the United States. The action- was commenced and tried before a' justice of the peace, thence appealed to the district court, there again tried, and thence appealed to this court.
There is no complaint to be found in the record of this case, but the record shows that there was one filed with the justice, and that there was also an amended complaint filed in the district court; but the clerk certifies that both were abstracted from his office. No point however has been made by either side on account of the complaint being missing, and both sides agree as to what it contained.
The first question is, whether the United States is a person within the meaning of said chapter. We think it is. Gen, Stat., 999; §1, subdivision 13. Section 314 of the act relating to crimes and punishments (Gen. Stat., 384,) is probably, as defendant claims, not applicable to this case; but it is not so certain, as defendant supposes, that § 321 of the criminal code is not applicable. It is true that the offense charged in this case is a misdemeanor, of which justices of the peace as well as the district courts, have original jurisdiction; (Gen. Stat., 1096, §1; Laws of 1869, ch. 61, p. 147;) and that this case was tried before a justice of the peace. But justices of the peace in the trial of misdemeanors are governed by the code of criminal procedure as well as the district courts except where it is otherwise provided by statute.' (Gen. Stat., 882, § 20.) Hence it would seem to follow that said § 321 of the criminal code is applicable to this case. Under either of said sections—§1, p. 999, §314, p. 384, §'321, p. 871, Gen. Stat.—the United States is a person. The question whether the Sac and Fox Reservation is a person is not raised by the record of this case; nor did the court below charge the jury, as the defendant claims, that the Sac and Fox Reservation was a person.
We agree with counsel for defendant, that the act of cutting down and carrying away timber, rails, etc., from the land of another, must be a wrongful or illegal act, or it cannot be prosecuted either civilly or criminally under said chapter 113. It must be a trespass within the meaning of the title of said chapter, and committed without authority from the owner, in order to be prosecuted, although it need not be technically a common-law trespass. Fitzpatrick v. Gebhart, 7 Kas., 35. But the record does not show that this principle was violated in the trial of the cause below. The defendant claims that it was violated by the instructions of the court to the jury. But as none of the evidence is brought to this court we cannot tell whether it was or not, or whether the court erred in any other respect in its instructions to the jury. It is probably true, as is claimed by the defendant, that the court charged the jury that if the defendant cut down the trees or carried away the rails, etc., as charged in the complaint, that he was guilty, omitting to state that the act must be done without authority from the owner, or without any right on the part of the defendant. Now if there was any conflict of evidence as to whether the defendant had any right to take the timber or rails, or if there was any doubt as to what the evidence proved upon this subject, then the question .of what the finding should be was one of fact, and belonged exclusively to the jury; but if the evidence was all one way, and if there was no doubt as to what it proved, all tending to show that the defendant had no right to take the timber or rails, then the question was properly one of law for the court, and the court had the right to tell the jury that under the evidence the defendant had no right to take timber or rails from said land. There is nothing in the record that shows that there was any controversy upon this subject. There is nothing to show that the defendant made any claim, or pretense even, that he had a right to cut timber, etc., on government land. And where a party brings a case to the supreme court, and fails to bring any of the evidence that was introduced on the trial below, it must be presumed that the evidence was all against him, and that it sufficiently proved all the facts found against him. We do not wish, to decide that where the evidence is all one way, and unquestionably proves the fact for which it is introduced, that the court is bound to tell the jury that the fact is proved, and instruct them to find accordingly; but we do decide that in such a case the court may tell the jury so, and so instruct them without committing error.
The instruction that “ Proof that the alleged trespass was committed on the Sac and Fox Diminished Reservation would be proof that it was committed on the property of the United States,” was not erroneous. The court, as we think, merely stated that such proof would be legal proof, that is, some proof upon the subject, a circumstance tending to prove the ownership of the laud upon which the alleged trespass was committed; but the court did not say that such proof would be conclusive, or even prima faeie proof, upon the subject. The court did not say that it would be sufficient of itself to prove the ownership of the land. Under the treaty with the Sacs and Foxes of February 1st 1867—proclaimed October 14th, 1868, 15 U. S. Stat. at Large, 495—the United States became the owner of all of said diminished reserve, and was of course the owner of the same at the time this alleged trespass was committed, which was sometime between November 16th 1868 and November 16th 1870, unless the government transferred the title to some other person. Whether it devolved upon the state to show that the government had not parted with its title, or upon the defendant to show that it had, is not a question in this case. We suppose it is hardly necessary for us to say that said treaty is a public law, of which the courts must take judicial notice. The judgment of the court below is affirmed.
All the Justices concurring. | [
113,
106,
-11,
-99,
47,
32,
42,
-104,
27,
-31,
-27,
-45,
-87,
-117,
-124,
57,
-13,
-67,
85,
122,
70,
-74,
7,
67,
54,
-77,
-47,
-43,
57,
76,
-20,
-44,
10,
-96,
74,
85,
102,
40,
-27,
-36,
-50,
6,
57,
-53,
-47,
0,
60,
75,
90,
11,
97,
-82,
-29,
46,
28,
-61,
33,
44,
75,
-67,
-79,
-7,
-66,
29,
91,
2,
-109,
34,
-120,
-123,
-24,
50,
24,
49,
1,
-24,
123,
-74,
-128,
116,
5,
-69,
-84,
98,
98,
33,
125,
-18,
-72,
-120,
62,
122,
-99,
-89,
-48,
16,
75,
37,
-106,
-99,
118,
80,
-90,
114,
-25,
12,
29,
108,
3,
-50,
-80,
35,
-35,
58,
-98,
-29,
-37,
-93,
49,
117,
-58,
-30,
92,
101,
48,
-101,
-113,
-42
]
|
The opinion of the court was delivered by
Brewer, J.:
Can a mortgagee, holding two notes payable at different dates, and secured by one mortgage, transfer before the maturity of either, the note last to become due with the mortgage, so as to give to such last note priority in satisfaction out of the mortgaged property? We think he can, both on reason and authority. Both notes and mortgage are subjects of contract. The only parties originally having rights are the mortgagor and mortgagee. To the mortgagor, having pledged his real estate as security for both notes, it is immaterial which has priority, so long as he is not called upon to pay either until it is due. Why then cannot the mortgagee contract with a purchaser of the second note that he may have priority in the security? Who suffers wrong? Is it not a legitimate subject of contract? Is it against public policy, immoral, or prohibited by statute? Clearly not. A mortgagee, holding notes, can release the mortgage and still hold valid notes; he can.release the mortgage as to one note, and hold it good as to the rest. He can release part of the mortgaged property from the lien of the mortgage, and hold it good as to the balance. So may he give to the purchaser of one note priority over all the other notes in,the security. In Wright v. Parker, 2 Aiken, 212, the chancellor says: “If Mann chose to assign to Sherman all his interest in the mortgaged premises as security for the payment of the two notes therein. assigned to him, , he. had a right so to do; and in such case nothing would remain for his after-assignment to the orator to operate upon.” And in Grattan v. Wiggins, 23 Cal., 30, the supreme court says: “ It is clear that 'the mortgagee has the right by agreement to fix the rights of the holders of the several notes to the mortgage-security, and such an agreement may be implied from the circumstances of the transfer.” See also Bryant v. Damon, 6 Gray, 564; Bank v. Tarleton, 23 Miss., 123; Lyndon v. Keith, 9 Vt., 299.
Did the mortgagee in this case by his transfers and agreements give any priority? The district court found that he ■did. There were four notes. While holding the first, second, and fourth, and shortly before the maturity of the first, he indorsed the second and fourth, and also transferred the mortgage with this assignment, to-wit:
“In consideration of the sum of two thousand dollars to me in hand paid, I do hereby sell, transfer, and assign to James Shearer, all my right, title, and interest in and to the within mortgage. Richard Albrey.
“Lawrence, June 23d, 1870.”
At the time of this assignment Albrey had a right and interest in the mortgage so far as it gave security for three notes. All of this right and interest he assigned. Does not this indicate. that so far as the assignee is concerned it was intended that he should have the full benefit of the mortgage, as security? Again, why assign the mortgage at all? ' Theí indorsement of the note transferred its proportionate interest' in1 the mortgage-security. Counsel says it was that the assignee might release the mortgage, and that the rule' is-to assign the mortgage to the indorsee of the last note. If this be the rule, it is á rule broken as often as kept. For a. mere delivery of the mortgage, with an indorsement of the note, is as common as a written assignment of the mortgage. There is nothing in the findings to conflict in the slightest degree with this view of the intention of the parties. We have-not the testimony before ais, and .there.may.have -been much' •in that- to support the finding of the court -as to the intention and-effect of-this assignment. In the case from California,, heretofore cited, the- court uses this languaeg: “ In .this case the court found that at the time of -the transfer and delivery of the note to Foster, Cook also assigned and delivered the-mortgage to Foster to secure him in the payment of thé $5,000 called for by the note. This shows a special agreement between Cook (who then held all the notes) and Foster, by Avhich the latter Avas to hold the mortgage as security for the payment of the note then assigned to him, thereby giving: him a right to full payment from the proceeds of the mortgage.” See also other cases cited.
■We think then that by the assignment to Shearer priority AA'as giAron to him. The mortgagee could not then by any subsequent indorsement of the first note destroy that priority Avhich he had transferred to Shearer. No question of notice- or knoAvledge is raised in the findings of fact, and none therefore need be considered by us. It is true, one of the-conclusions of laAAr states that common prudence' requires the-purchaser of a mortgage note to examine the mortgage, and' that an inspection of the records is insufficient. Upon what facts the district court"based this enunciation of law, wre 'are. noAvhere informed, and hence care not to discuss any -abstract'- - proposition. ...
It-is alleged as error that protest damages Avere not allowed; ■ to' plaintiff. It seems to be conceded that the notice was insufficient;- but counsel claims that protest and notice are distirict and'separate acts, and that the statute allows damages for- protest. Notice is necessary to charge the indorser. Without it a demand of payment, and protest for nonpayment, avail nothing. Tate v. Sullivan, 30 Md., 464. It seems to us that under the 14th section of the act concerning bonds, notes and bills, (Gen. Stat., p. 116,) there must be sufficient to charge the indorser before' any damages can be claimed. Where there is no indorser, though the note' be' protested, no damages can be .recovered. German v. Ritchie, ante, p. 106. The judgment will be affirmed.
All the Justices concurring. | [
-13,
122,
-47,
127,
90,
96,
-86,
-72,
-31,
-91,
55,
83,
105,
-61,
21,
101,
-25,
107,
21,
-54,
85,
-14,
39,
104,
-14,
-13,
-47,
84,
-71,
111,
100,
87,
76,
32,
-54,
85,
102,
-53,
-63,
82,
14,
-123,
10,
101,
-39,
80,
52,
27,
80,
72,
21,
-57,
-13,
37,
25,
70,
105,
43,
-37,
49,
-16,
-72,
-97,
-115,
109,
5,
-77,
101,
-44,
70,
-24,
14,
-112,
51,
9,
-24,
112,
-90,
-122,
116,
79,
59,
-119,
98,
98,
18,
100,
-49,
-44,
-71,
36,
-57,
-81,
-122,
-109,
88,
-85,
8,
55,
-99,
108,
5,
38,
118,
-29,
5,
31,
108,
29,
-114,
-42,
-77,
13,
124,
-102,
11,
-2,
3,
33,
113,
-50,
-88,
84,
103,
123,
27,
-114,
-3
]
|
The opinion of the court was delivered by
Valentine, J.:
Only one question is presented in this case. Can the court, in an action to foreclose a mortgage, render a judgment against the mortgagors for the fees of the attorney of the mortgagee, when there is no contract or stipulation in the mortgage, or elsewhere, requiting the payment of attorney’s fees? This question must-be-answered in the negative. A judgment for attorney’s fees, or counsel’s fees, for services rendered in the same case, is never allowed in an action on contract, unless stipidated for, or unless expressly authorized by statute: Sedg. on Damages, 95, et seq., and cases there cited, (page 103, et seq., of 5th ed.;) Swartzel v. Rogers, 3 Kas., 380. And - probably, such a?, judgment is never rendered in an action of tort: Fairbanks v. Witter, 18 Wis., 287. The following cases, found in' the.. Kansas Reports, though upon a kindred subject are-¡not applicable to this case, to wit: Lender v. Caldwell, 4. Kas., 339; Kurtz v. Sponable, 6 Kas., 395; Tholen v. Duffey, 7 Kas., 405.
It is not claimed that the judgment in this case was rendered upon any stipulation for attorney’s fees; but it As-claimed that it was rendered -under authority given by the. statutes. The only statute upon which such claim.is or can. be made reads as follows:
“Sec. 399. In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, as well to the plaintiff as other parties to the action having liens upon the mortgaged premises, by mortgage or otherwise, with interest thereon, and for the sale of the property charged and the application of the proceeds; or such application may be reserved for the further order of the court; and-the court shall tax the cosía, attorney’s eees, and expenses which may accrue.inthe action, and apportion the same among the parties according to their respective interests, to be collected on the order of sale or sales issued thereon,” etc. (Laws of 1870, page 175, § 13.)
As we understand this statute it does not pretend to give attorney’s fees where they are not otherwise or elsewhere authorized by law. This statute, as we read it, gives to the party entitled to receive the same such costs, such attorney’s fees, and such expenses, and such only, as are otherwise and elsewhere authorized by law. The main object of this statute is to provide that these costs, attorney’s fees, and expenses may be taxed and apportioned among the parties according to their respective interests, and not to provide for taxing costs, attorney’s fees, and expenses, that would not otherwise be allowed. A proper reading of the statute wrould probably be as follows: The court may tax such costs, and such only, as may legally accrue in the action; it may tax such attorney’s fees, and such only, as may legally accrue in the action; and may tax such expenses, and such only, as may legally accrue in the action; and these costs, attorney’s fees, and expenses, must each be apportioned according to the respective interests of the parties. These costs, attorney’s fees,,.and expenses are not only taxed and apportioned “ in actions to enforce mortgages,” but also in actions to “enforce” deeds of trust, and all other liens and charges. Now under this statute, as the expenses which accrue in the action may be taxed in every action, and in every case where attorney’s fees may be taxed, will it be claimed that a judgment may be rendered for the plaintiff’s personal expenses in attending court, or in hunting up lais witnesses, or in procuring other evidence, or in visiting his counsel to procure advice, etc. ? And if not, how can it be claimed that a judgment may be rendered by virtue of this statute alone for attorney’s fees? And as the statute simply authorized the taxing of the attorney’s fees which accrue in the action, without specifying what attorney’s fees, must they be the attorney’s fees of the plaintiff alone,,.or may they be the .attorney’s fees of the prevailing party? For instance: Suppose a person should sue one or more persons to foreclose a mortgage, or mechanic’s lien, or some “ other lien or charge,” and should fail in the suit: would the defendant, or any one of the defendants, be entitled to recover his attorney’s fees from the plaintiff? And further; this statute was passed after the execution of the note and mortgage sued on in this case.. Can the statute, then, even with the construction put upon it by the plaintiff below, apply to this note and mortgage, as well as to notas and mortgages executed after its passage?
The judgment of the court below is reversed, and cause remanded with the order that judgment be rendered for the defendants below for their costs expended since the payment of the note, mortgage and costs, on October 9th, 1871, mentioned in the agreed statement of facts.
All the Justices concurring. | [
-13,
-20,
-47,
44,
74,
96,
58,
-103,
-104,
-95,
-78,
91,
107,
-54,
4,
43,
-76,
61,
117,
99,
85,
-78,
23,
96,
-46,
-45,
-47,
-35,
-79,
-1,
-28,
-106,
76,
33,
-62,
-43,
-26,
-117,
-123,
84,
74,
-89,
-104,
-28,
-39,
68,
112,
27,
92,
74,
53,
79,
-13,
44,
29,
-22,
40,
40,
91,
57,
112,
-72,
-114,
-115,
95,
1,
-79,
37,
-36,
65,
104,
10,
-112,
53,
3,
-24,
115,
-90,
-122,
116,
77,
-69,
13,
118,
99,
0,
121,
107,
-12,
-104,
47,
-43,
-115,
-90,
-109,
-40,
3,
4,
-74,
-97,
108,
0,
39,
-10,
-25,
21,
30,
-20,
11,
-114,
-42,
-77,
-53,
116,
-104,
-54,
-2,
3,
48,
113,
-50,
120,
93,
-29,
27,
91,
-113,
-36
]
|
Thd opinion of the court was delivered by
Kingman, C. J.:
For the reasons given in the case of Higginbotham v. Thomas, decided at this term, the judgment ;n this case is affirmed.' (Ante, pp. 328, 334). The plaintiffs in error rely also upon an estoppel; but as we understand that doctrine it does not apply to this case.
Valentine, J., concurring.
Brewer, J., not sitting in the ease. | [
-94,
126,
-15,
-65,
26,
96,
-32,
-70,
-63,
-127,
-25,
115,
-87,
-37,
16,
125,
-17,
93,
-43,
-22,
-43,
-77,
15,
-32,
-42,
-45,
-13,
-35,
53,
76,
-9,
86,
76,
32,
-62,
85,
70,
-53,
-63,
-48,
-50,
-121,
41,
-63,
-37,
33,
48,
91,
96,
75,
49,
-97,
-29,
46,
25,
-62,
40,
46,
75,
117,
81,
-8,
-98,
-123,
77,
6,
-79,
36,
-36,
67,
-40,
44,
-112,
-71,
1,
-8,
18,
-92,
-126,
116,
107,
-71,
-119,
112,
102,
33,
-4,
-17,
-67,
-72,
38,
126,
-99,
-90,
-106,
61,
107,
65,
-73,
-99,
101,
16,
-121,
126,
-30,
12,
29,
-4,
3,
-113,
-48,
-65,
-121,
126,
-72,
67,
-41,
99,
48,
113,
-115,
120,
93,
-59,
56,
-117,
-98,
-66
]
|
The opinion of the court was delivered by
Brewer, J.:
The petition sets forth a contract for services;; that the services Avere to be rendered Avith care and skill; that they Avere carelessly and negligently performed; that in consequence thereof the personal property of .plaintiff was injured,,- and that the carelessness and negligence Aras .the sole cause of the injury. The transaction is alleged to have-happened more than íavo and less than three years before the commencement of this suit. The district court held that this action camewithin the provisions of the third clause of § IS of the civil code, Avhich limits to two years the bringing of actions “ for-taking, detaining or injuring personal property,” and henceAvas barred. In this we think the learned judge erred. The action is one for breach of contract. The breach of the contract gives the right to relief. The injury to the property determines the amount of damages. The legitimate order of’ OAddence under this petition Avould be, first, the contract, their the breach, and last the amount of damages. The fact that the breach of the contract resulted in injury to specific personal property Avould not reduce the time Avithin Avhich an action might be brought beloAV that Avhich a party Avould have in case of any other breach of contract. That time,, if the contract be in Avriting, is Jive years, otherwise, three. The-plaintiff’s cause of action Avas not barred, and the judgnientof the district court must be reversed.
All the Justices concurring. | [
-14,
120,
93,
-18,
11,
106,
34,
-102,
81,
-95,
39,
19,
-23,
-61,
-108,
105,
-13,
97,
16,
122,
95,
-93,
87,
0,
-10,
-77,
-47,
85,
-79,
111,
-28,
86,
76,
49,
-62,
-43,
102,
-62,
-55,
-108,
10,
-89,
9,
108,
-47,
0,
48,
58,
86,
11,
17,
-113,
-29,
46,
25,
71,
-83,
40,
-23,
53,
-48,
-16,
-103,
13,
127,
7,
-79,
38,
-100,
71,
-22,
46,
-120,
57,
1,
-24,
114,
-74,
-122,
52,
7,
-101,
9,
98,
98,
34,
1,
-51,
-36,
-88,
46,
-34,
-113,
-90,
-107,
88,
41,
9,
-66,
-98,
110,
20,
38,
126,
-10,
21,
31,
44,
23,
-53,
-44,
-77,
-49,
52,
-98,
11,
-18,
3,
49,
117,
-50,
-92,
92,
99,
51,
-101,
-97,
-65
]
|
The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to recover damages for gas alleged to have been wrongfully taken by the defendants from a gas well owned by the plaintiffs on their land. The plaintiffs also sought to have the defendants enjoined from taking gas from the well. Judgment was rendered in favor of .the defendants, and the plaintiffs appeal.
On January 9, 1914, plaintiff D. O. Holbert executed the following written instrument:
“oil and gas lease.
“Agreement, made and entered into the 9th day of January, A. d. 1914, by and between D. O. Holbert, an unmarried man, of Independence, Kansas, party of the first part, lessor, and Charles Barr, Ed. B. Barr and S. H. Barr, party of the second part, lessees.
“Witnesseth: That said party of the first part, for and in consideration of one hundred sixty dollars to him in hand well and truly paid by the said party of the second part, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of the party of the second part, to be paid, kept and performed, has granted, demised and leased.and let and by these presents does grant, demise, lease and let unto the said second party their heirs, executors and administrators, successors and assigns, for the sole and only purpose of mining and operating for oil and gas and of laying pipe lines and of building tanks, powers, stations and structures thereon to produce and take care' of said products, all that certain tract of land situate in the County of Montgomery, State'of Kansas, described as follows, to-wit:
“The west half of the southeast quarter and the east half of the southwest quarter of section 27, township 32, range 15 and containing one hundred sixty acres, more or less.
“It is agreed that this lease shall remain in force for a term of ten years from this date and as long thereafter as, oil and gas or either of them, is produced from said land by the party of the second part, their heirs, administrators, executors, successors! or assigns.
“In consideration of the premises, the said party of the second part covenants and agrees:
“1. To deliver to the credit of the first parties, his heirs, or assigns free of cost in the pipe line to which it may connect its wells the equal one-eighth part of all oil produced and saved from the leased premises.
“2. To pay the first parties the equal one-eighth part of all the sales, for the gas from each well when gas only is found, while the same is being used off of the premises and the first parties to have gas free of cost from any such well for three stoves, and three inside lights in the principal dwelling house on said land during the same time by making his own connections with the well.
“3. To pay the first parties for gas produced from any oil well and used off of the premises at the rate of fifty dollars per year, for the time during which such gas shall be used, said payments to be made three months in advance. The party of the second part agrees to complete a well on said premises within one year from the date hereof, or pay at the rate of one hundred sixty dollars for each additional years such completion is delayed from the time above mentioned for the full completion of such well until well is completed and it is agreed that the completion of such well shall be and operate as a full liquidation of all rent under this provision during the remainder of the terms of this lease. The party of the second part shall have the right to use, free of cost, gas, oil, and water produced on said land for its operation thereon, except water from the wells of first party. When requested by first parties, the second party shall bury its pipe lines below plow depth. No well shall be drilled nearer than 200 feet to the house or barn on said premises. Second party shall pay for damages caused by them to growing crops on said land. The second party shall have the right at any time to remove all hiachinery and fixtures placed on said premises, including the right to draw and remove casing. The second party shall not be bound by any change in the ownership of said land until duly notified of any such change, either by notice in writing, duly signed -by the parties to the instrument of" conveyance or by receipt of the original instrument of conveyance, or a duly certified copy thereof.
“All payments which may fall due under this lease may be made directly to D. O. Holbert or deposited by lessees to his credit in Independence State Bank, Independence, Kansas.
“The party of the second part, its successors or assigns, shall have the right at any time, on the payment of ten and no hundredths dollars to the party of the first part, his heirs or assigns, to surrender this lease for cancellation, after which all payments and liabilities thereafter to accrue under and by virtue of its terms shall cease and determine; provided this surrender clause and the option therein reserved to the lessee shall cease and become absolutely inoperative immediately and concurrently with the institution of any suit in any court of law or equity by the lessee to enforce this lease or any of its terms or to recover possession of the leased land, or any part thereof, against or from the lessor, his heirs, executors, administrators, successors or assigns or any other person or persons. All covenants and agreements herein set forth between the parties hereto shall extend to their successors, heirs, executors, administrators and assigns.”
The plaintiffs contend that the judgment is contrary to the evidence. They argue that, after giving the lease, Holbert con-' tinued to be the owner of the existing gas well and of the gas produced therefrom. Their argument is partly based on the distinction that this court has drawn between a lease of land to mine for gas or oil and a license to do the same thing. Whether lease or license, the rights of the plaintiffs depend on the written instrument signed by Holbert. The question for determination turns on the interpretation of that instrument. By it the Barrs are given the right to mine and to operate for gas and oil. The court takes judicial notice of the fact that gas and oil are mined by means of deep wells drilled into the earth. The lease places no restrictions on the right of the Barrs to operate for gas or oil. If there had been twenty producing .gas wells on the land, at the time the lease was: signed, or if the premises had been fully drilled and all wells were producing gas, would the lease have granted the right to operate these wells ? This question must be answered in the affirmative. If such right would have been so granted, it follows that the lease carried the right to operate the one well then existing on the land.
The plaintiffs rely on the following language contained in the lease:
“For the sole and only purpose of mining and operating for oil and gad and of laying pipelines and of building tanks, powers, stations and structures thereon to produce and take care of said products.'
“To pay the first parties the equal one-eighth part of all the sales, for the gas from each well when gas only is found, while the same is being used off of the premises.”
This language does not restrict the gas or oil rights granted by the lease. The proper interpretation of the lease is that it granted to the Barrs the right to operate the gas well that was in existence at the time the lease was executed. This interpretation leaves the plaintiffs without any substantial foundation for their appeal.
Another question urged by the plaintiffs is that the court erred in sustaining the defendants’ demurrer to the plaintiffs’ evidence on the second count of their amended petition. That count alleged injury to the gas well by the manner in which it was operated. This contention must likewise fail because of the terms of the lease.
A part of the judgment reads:
“That the defendants and each of them are enjoined from taking any gas from out' of the well which was drilled on said premises before said lease was executed and in which there was material, including casing and tubing at the time of the execution of said lease until said defendants pay plaintiffs for the cost or value of said material in said well, which the court finds to be of the value of four hundred ($400.00) dollars.”
The judgment is affirmed. | [
-16,
108,
-48,
29,
10,
-32,
104,
-101,
73,
-95,
-11,
87,
-55,
-37,
5,
117,
-25,
57,
85,
105,
-106,
-77,
0,
-47,
-48,
-13,
-71,
-51,
-80,
93,
-26,
87,
72,
36,
74,
-107,
-26,
-62,
69,
-36,
-50,
5,
-119,
96,
-55,
8,
48,
42,
50,
75,
81,
7,
115,
41,
24,
-61,
-23,
44,
-3,
-7,
89,
-80,
-85,
-123,
125,
18,
1,
3,
-104,
-59,
-24,
30,
-102,
48,
41,
-20,
-6,
38,
-58,
-12,
47,
-71,
40,
46,
99,
39,
4,
-17,
104,
-72,
15,
-33,
-115,
-90,
-110,
16,
-77,
64,
-66,
29,
92,
86,
-121,
118,
-18,
-123,
31,
57,
5,
-117,
-106,
-95,
15,
-29,
-102,
1,
-21,
-89,
53,
100,
-55,
-78,
93,
71,
122,
19,
15,
-112
]
|
The opinion of the court was delivered by
Porter, J.:
Defendant appeals from a judgment for $230 given the plaintiff for personal injuries received when his Ford car was overturned by the defendant, who attempted to pass plaintiff with a heavier car, giving no signal of an inten tion to pass, and by turning his car in toward the center of the road before it was clear of plaintiff’s car. The plaintiff testified that no signal was given, and that defendant’s car was alongside his car before plaintiff discovered' his presence or intention to pass, and that defendant turned his car in at an angle almost directly in front of plaintiff’s car before he had time to do anything. His wife and several members of his family who were with him, and also other witnesses who lived near and saw the accident, testified they heard no signal. The defendant’s family were present with him, and all of the occupants of the car testified to the exact contrary, and that a signal was sounded, and that the accident was caused solely by the plaintiff’s negligence in managing his car.
There is not the slightest mer.it in the contention that the demurrer to the evidence should have been sustained. The case is one depending wholly on facts which the jury have determined in favor of plaintiff. The special findings are that no signal was given; that a burr on the clamp of the demountable rim on the rear right wheel of the defendant’s car struck the hub cap on the -left front wheel of plaintiff’s car; and that defendant drove his car a distance of frdm ten to .thirty feet after passing plaintiff before returning to the center of the road.
While defendant offered testimony to show that his car was still in the same condition at the time of t!he trial as it was six months before, when the accident occurred, it cannot be said there was an abuse of discretion in refusing to permit the jury to examine his car. In the time that had elapsed it would have been very easy for a burr on the rim to be changed; and besides, an inspection would not have materially aided the jury in understanding the evidence.
In his closing argument, counsel referred to the instruction given by the court under the provisions of section 507 of the General'Statutes of 1915, imposing the duty upon defendant under such circumstances not to return to the center of the road with his car until he had passed thirty feet ahead of plaintiff’s car, ■ and argued that the statute means that the passing car is not to turn in ahead of the other until at least thirty féet ahead of it. No objection to the line of argument was advanced by defendant’s' counsel at the time, and the matter is brought upon the record by an affidavit in support of a motion for a new trial. Undoubtedly the legislature contemplated that both cars will be moving, and may be moving rapidly. As suggested in plaintiff’s brief, if defendant’s contention is correct, he would be within his rights under the statute, provided the four wheels of his vehicle did not settle down in the beaten track at a distance less than thirty feet ahead .of the car he passed. The argument of plaintiff’s counsel was not unreasonable or unfair.
There 'was no error in refusing to grant a new trial on the evidence of four jurors to .the effect that some unknown juror stated in the jury room that during a recess of the court he went to defendant’s car and examined it, and found that one of the rear fenders on the right was bent. If the circumstance was regarded by the jury as evidence, it was only cumulative upon a most unimportant feature of the case.
The judgment is affirmed. | [
-16,
106,
80,
-84,
27,
96,
58,
-38,
97,
-91,
36,
-109,
-81,
81,
20,
35,
-2,
-97,
84,
35,
84,
-93,
23,
-85,
-78,
-45,
-77,
-36,
-107,
-54,
101,
123,
76,
32,
-62,
-107,
102,
9,
-59,
80,
-50,
6,
-70,
-19,
-103,
-104,
-16,
58,
-108,
79,
17,
-98,
-25,
46,
24,
-50,
-23,
40,
59,
-67,
-48,
-16,
-119,
13,
79,
6,
-77,
20,
-98,
37,
124,
24,
-100,
-79,
8,
-8,
114,
-90,
-112,
-12,
105,
-103,
8,
-94,
103,
33,
93,
99,
-20,
-72,
38,
122,
15,
-90,
62,
56,
9,
37,
-73,
-65,
123,
48,
14,
126,
-6,
29,
95,
108,
3,
-53,
-76,
-15,
-17,
54,
-110,
88,
-21,
-85,
16,
113,
-52,
-14,
92,
69,
123,
-101,
-49,
-106
]
|
The opinion of the court was delivered by
Porter, J.:
The plaintiff appeals from an order sustaining a demurrer to his petition.
The petition alleged that one G. S. Wyatt (who is the father of the plaintiff) was originally the owner and in possession of thirty-six acres of land in Montgomery county and had made a contract for a deed, by which he agreed to convey the land to J. W. Vaughn at the end of five yfears upon certain payments being made. It alleged that after this contract had been executed Vaughn released and relinquished his interest in the land, and that thereafter G. S. Wyatt conveyed the premises by warranty deed to the plaintiff, and that Vaughn and all parties claiming any rights through him failed and refused to comply with the .terms of the contract, and that by reason of such failure plaintiff is entitled to foreclose the contract. The petition alleged that there was then due and owing upon the contract $4,300, for which judgment was asked against the defendants, and that the contract be foreclosed and the judgment declared to be a first lien upon any rights the defendant had in the land. There was nothing in the petition to show what, if any, interest the defendants had or claimed in the land, and no facts were stated to show that any of them had become interested in the contract for the deed or had assumed the liability of Vaughn. Obviously, this was the ground upon which the court sustained the demurrer.
The abstract sets out in full all the proceedings' on a former suit between the same parties, including the testimony and pleadings, and .apparently plaintiff was proceeding under the theory that it was the duty of the trial court to take judicial notice of these, as well as of all rulings and orders made in the former trial. The action was originally commenced as one to quiet title. The gas company answered the originál petition admitting ownership of the lease executed by Vaughn and attaching a copy thereof, and further alleging that with the knowledge and consent of G. S. Wyatt the company drilled a producing gas well and was still in possession of the land under the lease, and that G. S. Wyatt had relinquished in writing to the company his right to the oil and gas under the lands, with the further agreement that in case Vaughn forfeited his rights under the contract for a deed Wyatt should be substituted to Vaughn’s rights under the lease. It alleged that when plaintiff attempted to acquire title from his father he had full knowledge of all the facts set forth in the answer, and that his^ rights in the lands are subject to those of the defendant company as lessee. There was a trial upon these issues in which the court found in defendants’ favor, and held that the lease executed by Vaughn is valid, and that the gas company is entitled to seven-eighths of the proceeds from the sale of thé gas, and plaintiff to his one-eighth royalty. It appears from the abstract also that the court at that time held that plaintiff has the right, as against the defendants, to foreclose his contract with Vaughn as a mortgage, that the gas company is en titled to an accounting upon such foreclosure; and in the decree the court gave plaintiff permission to amend his petition for the purpose of foreclosing the mortgage, on condition that he pay the costs of the action that had accrued, and judgment was rendered against him for costs. Thereafter, plaintiff filed one amended petition and later another to which the court sustained the demurrer, and this ruling is the one complained of.
We are unable to see in what way the evidence on the former suit has any bearing upon the ruling sustaining the demurrer. While this is a suit between the same parties, it is not the same one that was before the court at the first trial. The issues in that suit were decided against plaintiff, and judgment was rendered against him. In order to avoid the necessity of a new summons and the formal commencement of a new suit, the court, having held that plaintiff had the right to foreclose his contract as a mortgage, gave him leave to pay the costs that had accrued and to file an amended petition in foreclosure. None of the proceedings on the former trial has any place in the abstract. All the abstract should contain is a copy of the petition, the demurrer, and the ruling thereon. The petition does not attempt to make the testimony or the findings or conclusions of the trial court in the first suit a part of the petition. It states no facts to connect the defendants with the contract between Vaughn and plaintiff’s grantor. There is no suggestion that the defendants have assumed any liabilities under Vaughn’s contract. There is the bare allegation that all of them have neglected and refused to comply with the terms of the contract, and that it is subject to foreclosure. The former pleadings at that time had served their purpose and formed no part of the pleadings in the present suit. It has been held that “where a complete pleading is filed, it supersedes that for which it is substituted, which can no longer be looked upon as defining the issues.” (Reemsnyder v. Reemsnyder, 75 Kan. 565, 89 Pac. 1014.)
It is very clear, we think, that the third amended petition states no cause of action against the defendants, and that the demurrer was properly sustained.
The judgment is affirmed.
Marshall, J., not sitting. | [
112,
108,
88,
31,
-117,
96,
40,
-101,
73,
-95,
39,
83,
-87,
-62,
4,
105,
-13,
89,
117,
107,
119,
-77,
23,
97,
-46,
-13,
-111,
-35,
49,
92,
-28,
-41,
76,
36,
-54,
21,
-26,
-118,
-57,
88,
-114,
-127,
-119,
109,
-55,
-120,
48,
27,
116,
79,
81,
-113,
-13,
46,
25,
-62,
-83,
44,
-5,
41,
81,
-71,
-69,
5,
95,
5,
17,
6,
-104,
-121,
104,
14,
-112,
49,
1,
-24,
114,
-74,
-122,
116,
3,
-101,
40,
-90,
107,
2,
69,
-17,
-54,
-104,
15,
-98,
-99,
-90,
-16,
56,
11,
104,
-74,
-99,
125,
0,
-121,
-2,
-18,
5,
90,
109,
7,
-117,
-42,
-31,
15,
120,
-102,
-127,
-26,
-93,
48,
116,
-51,
-30,
92,
67,
49,
-101,
-113,
-40
]
|
The opinion of the court was delivered by
West, J.:
Counsel for the defendant in their motion for a rehearing say that the remark in the Opinion that “There was testimony to the effect that these matters causéd or contributed to the death of the trees” does not correctly state the proposition, “for the record shows beyond dispute, and it was the uncontradicted evidence on both sides that these matters caused or contributed to the death of these trees.” These “matters” were unsanitary soil, poor drainage conditions, and insects. Mr. Hoffer testified that after the trees had come out with fine foliage the bark began to crack at the ground. That in 1911 he first detected the odor of gas; that in 1912, 1914, and 1916 complaints and investigations were made; that outside of a radius of 125 feet from where the gas leak was found the trees were nice growing trees. Professor Phipps of the agricultural department of the Kansas State Normal testified that the bark was loose upon the trees that were dead, and that the color at the roots indicated a poisoned root. He also testified: “I first traced down every ordinary source to which that might be laid, and after eliminating everything else I would check it up to the gas.’! On cross-examination he testified that he found indications of insects, and that poor drainage might have caused the odor and might have caused the death of the trees, and that, in his opinion, insects did not; that, in effect, the insects, gas, and poor drainage all combined to kill the trees. Being recalled, he said his personal opinion was that gas caused the death of the trees.
Another witness testified to having noticed the odor of gas on the Hoffer premises. One of the commissioners of the city, who was present when the ground around the roots was dug, testified that a strong, offensive odor came from the soil. Counsel are hardly accurate, therefore, in saying that it was the uncontradicted evidence on both sides that insanitary soil, poor drainage conditions and insects caused or contributed to the death of the trees. Neither does it appear that they are quite justified in their assertion that the jury “lied” in their answers to questions 7 and 8, and answered them “absolutely contrary to the evidence.”
As to the statement in the opinion that even counsel confess that some of the expert evidence as to the supposed effect 6f insanitary soil and poor drainage conditions was “wobbly,” they say that they not only confessed it, but asserted it, but only in regard to a witness for the plaintiff. This is correct, and the opinion should have said that counsel for the defendant characterized the expert evidence1 of one of the plaintiff’s witnesses as to these matters as “wobbly.”
It is suggested that the argument and citations of authorities on two pages of the brief were not even alluded to in the opinion, and that they were worthy of an answer by the court. These were on the competency of real-estate men to testify touching the value of property. This was answered in the opinion as follows: “The record shows that their competency was,sufficiently established.” Thus, it was intended to indicate that the court felt that after due examination of the point a correct conclusion had been reached.
Our attempts to make our opinions less prolix now and then meet with complaints because we do not expressly mention authorities cited in briefs. As a general thing, however, we examine not only the authorities cited, but a great many more.
The rehearing is denied. | [
-16,
106,
-3,
-98,
10,
96,
40,
-40,
85,
-95,
-16,
87,
-51,
-37,
29,
113,
-22,
29,
84,
122,
-58,
-74,
83,
3,
-106,
-13,
56,
-35,
125,
109,
-12,
93,
12,
56,
-54,
-107,
-90,
-64,
-57,
-34,
-114,
6,
-119,
-16,
-40,
-112,
52,
47,
-26,
79,
52,
30,
-29,
42,
29,
-61,
105,
44,
107,
45,
66,
-15,
-86,
-107,
95,
20,
34,
6,
-108,
-125,
-56,
46,
-112,
53,
0,
-20,
115,
-76,
-108,
-4,
15,
-119,
12,
-30,
102,
33,
29,
-81,
-24,
-120,
7,
-98,
45,
-90,
16,
8,
11,
-96,
-106,
-105,
100,
88,
38,
106,
-10,
69,
95,
-28,
11,
-117,
-44,
-15,
83,
-76,
-100,
33,
-21,
-93,
55,
96,
-51,
-30,
92,
69,
82,
-101,
-113,
-80
]
|
The opinion of the court was delivered by
Mason, J.:
C. V. Orendorff sued the Brown Bed Manufacturing Company for a balance of $225 alleged to be due for his services for two years as a traveling salesman, selling on commission. He recovered a judgment for $122.79, and the defendant appeals.
The answer included a verified statement in accordance with the claims of the defendant, and the contention is made that this version of the account must be taken as true because the affidavit in verification of the reply was not sworn to positively. An account to be regarded as duly verified by affidavit must be supported by the positive statement of the affiant under oath. (Boot and Shoe Co. v. Martin, 45 Kan. 765, 26 Pac. 424.) But the code expressly provides that an affidavit in verification of a pleading shall be sufficient if it states that the affiant believes the facts stated therein to be true. (Gen. Stat. .1915, § 7005.) Moreover, the issue was fully tried out on the theory that it had been properly raised, and a defect in the verification would not have been material.
The plaintiff alleged in his petition that he was unable to state just how much expense money had been advanced to him, but that all bookkeeping was done by the defendant; also, that he was unable to state the exact number of orders taken, or the volume of business done. He testified, however, in some detail from memoranda he had made. Complaint is made that this amounted to a variance from his pleading. If so, no prejudice was shown and the fact is immaterial. (Gen. Stat. 1915, § 7026.) Complaint is also made because the trial judge asked questions of the plaintiff and assisted him in figuring out the balance he claimed. No abuse of discretion is shown in this regard.
In one of the instructions it was stated that the plaintiff’s evidence tended to show that he was to receive a commission of 8 percent on all sales. The defendant urges that this was erroneous, because the plaintiff admitted that as to some go'ods his commission was to be 5 percent and that on others the amount was graduated from 6 to 9 percent. The plaintiff did admit that on two kinds of beds the commission was to be 5 percent, but the number of sales of the beds referred to was shown, and the amount involved was small and definitely ascertained. He did not admit the graduated scale of commissions on other lines, although he testified to a conversation on the subject. That matter was therefore properly left to the jury. In the same instruction it was said that the plaintiff contended that he had procured orders to a certain amount which were approved by the defendant. This statement is criticised on the ground that the plaintiff did not testify that the orders referred to were approved. He did testify, however, that he had sent in the orders and had no notice of their rejection. The effect of this testimony was a proper matter for the consideration of the jury.
In another instruction reference was made to the plaintiff’s claim as one for 8 percent commission, and complaint is made that this was misleading because no mention was made of the 5 percent commission on the two kinds of beds. As has already been mentioned, the amount involved in this phase of the matter was small and definitely ascertained, and' there is no likelihood that the jury were misled. . .
A juror made an affidavit that the jurors each marked the amount to which in his judgment the plaintiff was entitled, and that the verdict returned (which was afterwards agreed to) was for the average of the markings. As no agreement was made in advance to be bound by the markings, the result was not to be regarded as a “quotient” verdict in the objectionable sense. (City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 222.) There was some room for elasticity in estimating the amount due the plaintiff, according to the theory adopted as to the special commission agreement on other goods than the two beds, and as to the number of orders rejected.
A part of the goods handled by the plaintiff were those of other companies, and the defendant asserts that as to them it was under no liability — that the plaintiff was to look for his commission to the companies filling the orders. This was a fair question for the jury.
The judgment is affirmed. | [
50,
-18,
-24,
-51,
26,
96,
42,
-70,
21,
-127,
55,
115,
125,
-54,
4,
127,
-76,
29,
113,
96,
87,
-77,
7,
75,
-30,
-78,
-13,
-43,
-75,
79,
-27,
28,
77,
48,
-62,
-43,
-30,
-126,
-59,
24,
-34,
12,
-104,
-25,
-7,
64,
48,
61,
64,
75,
-15,
-58,
-13,
44,
-103,
-49,
43,
46,
111,
-71,
-32,
-15,
-70,
13,
109,
23,
51,
52,
-98,
71,
120,
44,
-120,
49,
3,
-55,
59,
-74,
-58,
116,
43,
-87,
8,
106,
99,
33,
17,
-29,
-68,
-108,
47,
126,
-99,
-90,
50,
24,
75,
109,
-74,
-99,
116,
16,
38,
-4,
-8,
-35,
-99,
108,
3,
-113,
-106,
-94,
15,
102,
-100,
-119,
-49,
-93,
17,
113,
-49,
-96,
92,
87,
24,
-101,
-114,
-78
]
|
The opinion of the court was delivered by
West, J.:
To the amended petition, attempting to set up five causes of action for damages, for injunction and to quiet title, a demurrer was sustained, and the plaintiffs appeal. The story, in-substance as alleged, is that the plaintiff, Ida M. Nelson, was the owner of certain lots on which she gave a mortgage for $4,666 to James M. Hoskinson, at whose direction it was executed to his wife, the defendant, Jennie Hoskinson, with a provision that the lots covered could be sold by the payment on the mortgage of a certain price for each front foot; that six months before the note fell due Hoskinson made a provision on another basis, and a new mortgage for $6,345 was executed, and a new arrangement was made about the price to be paid and credited for each front foot sold; that certain releases were to be executed and placed in escrow, but were not so deposited; that Hoskinson died leaving everything to the defendant, Jennie Hoskinson, as his assignee, she having full knowledge of all the equities of the plaintiffs; that Hoskinson had refused to release the lots which the plaintiff had sold and failed to give credit therefor; that the defendant, Jennie Hoskinson,-when about to foreclose induced the plaintiffs to believe that if they would not defend she would continue the arrangement substantially as it had been, but proceeded to take judgment, although one of the plaintiffs had at that time been declared a bankrupt and discharged from any liability on the note; and that Jennie Hoskinson flatly refused to perform her contract. It was alleged that one Benham C. Nelson had bought certain lots which were not included in the second mortgage and “had been released from all prior mortgages,” but were attached and sold under a deficiency judgment against the Nelsons on another note, from which W. S. Nelson had been discharged in bankruptcy; that certain other lots bought by Benham C. Nelson, subject to the terms of the second mortgage, which were to be released upon payment of a certain price for each front foot, were included in the foreclosure, and Benham C. Nelson was given no opportunity to redeem without paying the entire judgment; and that unless this relief be afforded Benham C. Nelson the plaintiffs might be called upon to respond under the covenants of their deeds to him. It was prayed that he be protected and allowed to redeem, and that the sale under foreclosure be enjoined and the title of the plaintiffs to the land be quieted. >
If, as alleged, the failure to defend was caused by the promise to continue the former arrangement, the defendant is taking advantage of the breach of her own agreement. In Hentig v. Sweet, 27 Kan. 172, an accommodation indorser who was liable upon a promissory note then in litigation made a payment, after its maturity, to the holder, and at the request of the plaintiff paid him several hundred dollars in addition, upon his promise to credit the amounts upon the claim and take judgment for only the balance. The indorser, relying upon such promise, made no defense, but the plaintiff took judgment for the full amount. It was held that as an unfair and unconscion able advantage was taken in depriving the indorser of his just credits he had a right to stay, by injunction, the collection of the remainder of the judgment, after paying all except that for which he was entitled to credit. On the strength of this decision and the authorities therein cited the plaintiffs have a right to enjoin the sale under the judgment of foreclosure until the alleged wrongs shall have been righted by the defendant, Jennie Hoskinson.
It was proper to make the sheriff a party defendant, as he was'the one ordered to make the sale. No rule of code pleading was violated by naming Benham C. Nelson as a party defendant and suggesting that he bear his portion of the cost of the litigation. Should he not see fit to defend or assert his own rights the plaintiffs should be permitted to protect themselves from the effect of the alleged improper inclusion of his lots.
Various allegations of damages and numerous complaints of James M. Hoskinson’s conduct in many respects not already noticed have been considered, but the only result we are able to reach is that the pleading states a cause of action which, if proved, will authorize the trial court merely to enjoin the sale until such conditions are brought about as may render it equitable and proper to carry it out.
To this extent only the judgment is modified, and the cause is remanded for further proceedings in accordance herewith. | [
-15,
124,
-104,
-65,
10,
96,
40,
-101,
74,
49,
-73,
83,
-5,
-62,
29,
13,
-10,
41,
-47,
104,
119,
-77,
6,
34,
-46,
-77,
-79,
-51,
-79,
-19,
117,
-41,
76,
54,
-30,
-107,
-26,
-62,
65,
84,
74,
-105,
11,
-27,
-39,
66,
48,
123,
116,
65,
65,
-81,
-13,
45,
28,
74,
104,
43,
123,
61,
-48,
-72,
-117,
-115,
89,
6,
17,
52,
-70,
67,
74,
8,
-112,
49,
0,
-32,
114,
-74,
-122,
116,
65,
-101,
40,
102,
102,
48,
101,
-17,
-40,
-104,
7,
126,
-67,
-90,
-110,
9,
27,
32,
-65,
-103,
116,
16,
7,
-42,
-2,
-115,
28,
104,
4,
-117,
-42,
-107,
-81,
124,
-100,
19,
-58,
-117,
32,
113,
-55,
-32,
77,
-28,
127,
-69,
-113,
-8
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.