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The opinion of the court was delivered by
Mason, J.:
In 1915, George K. Phillips and his wife executed deeds to their several children by which they conveyed to each a tract of land upon the condition that the grantee should annually pay to them, or to the survivor of them, so long as either should live, the sum of one dollar per acre. In 1916, the county commissioners undertook to tax the right of George K. Phillips to receive such annual payment, and entered it upon the rolls as personal property belonging to him. He brought an action against the commissioners and treasurer seeking to enjoin the collection of the tax. A demurrer to his petition was overruled. The defendants elected to stand upon their demurrer, and now appeal.
The plaintiff contends that the execution and acceptance of the deeds referred to created no right or property in him which is subject to taxation, but that whether or not he is correct in that contention, the defendants are precluded from disputing it, because of allegations in the petition which he asserts constitute a good plea of res judicata as to that matter. Such allegations are to the effect that in 1915, under similar circumstances, a warrant based upon the same character of proceedings was about to be issued against the plaintiff, and he had then sought and obtained a permanent injunction against the defendants forbidding the collection of the tax. The defendants assert that the matters alleged do not amount to a prior adjudication of the issue here presented — that the facts pleaded merely show that for some undisclosed reason the tax warrant that was to have been issued in 1915 was not valid. The rule is invoked that where (as in this instance) the second cause* of action is upon a different demand, a former judgment operates as an estoppel only as to matters that were actually litigated. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.) The question presented for determination is whether the allegations of the petition, when given the construction favorable to the pleader to which they are entitled upon an attack by demurrer, are sufficient to show, expressly or by fair implication, that in the earlier case the court decided that the deeds created no right in the plaintiff which was subject to taxation as personal property. The part of the petition referring to this phase of the controversy reads as follows:
“That in March, 1915, the deputy assessor of said Franklin township and the county clerk of Franklin county assessed this plaintiff upoh said property, that is the alleged property, which they claimed plaintiff owned by virtue of said deeds, and extended the same upon the tax rolls of Franklin county, Kansas, and the county treasurer was about to and intended to issue a warrant to the sheriff of Franklin county to collect said tax levied upon said property, the amount being $93.20, and to prevent the issuance of said warrant this plaintiff on February 7, 1916, duly filed in this court his action against all defendants in this cáse to enjoin the issuance and service of such tax warrant. That the defendants in this case answered plaintiff’s petition in that case by setting up that it was a taxable property owned by plaintiff, by virtue of the provisions in said deeds, and clammed the right to assess the property and tax the plaintiff thereon; and the issues being duly joined in said case, the same was tried to this court, and the court having heard the evidence fully of both parties and the argument, it was duly considered and adjudged in said cause by this- court that the real estate described in said deeds was conveyed by this plaintiff to his said several children upon conditions subsequent, and that the assessment of plaintiff on account of said pretended property was illegal and that the defendants should be enjoined from collecting taxes thereon; whereupon it was.adjudged and decreed by the court in that cause that the defendants herein who'Were defendants in that cause be and they were perpetually enjoined from issuing or causing to be issued any warrant for the collection of said taxes, and this plaintiff now says that said decision then had upon the merits of this matter in said case rendered the matter of assessing said property res adjudieata, and the defendants are estopped thereby and prohibited thereby from assessing said pretended property and from issuing any warrants against this plaintiff to collect said illegal taxes thereon.”
It is quite apparent that the pleader had in mind and intended to give expression to the idea that the question of the taxability of the plaintiff’s rights under the contracts evidenced by the deeds was passed upon in the former action. That allegation is not made, however, as distinctly and explicitly as might be desired. Doubtless a motion for a more definite statement of the plaintiff’s claims in this regard would have elicited a fuller exposition of them. Possibly everything said in the petition might have been literally true, although the decision was based on some defect peculiar to the tax proceedings of 1915. No hint is given-, however,, of any challenge of the validity of thé tax excepting that based upon the character of the plaintiff’s rights with respect to the real estate, and the repeated references to that féature of the matter would seem entirely purposeless unless that were the controlling issue. The petition alleged that in the prior action the plaintiff asked an injunction against the defendants restraining the collection of a tax on “the alleged property, which they claimed plaintiff owned by virtue of said deeds”; that the defendants answered “by setting up that it was a taxable property, owned by plaintiff by virtue of the provisions in said deeds, and claimed the right to assess the property and tax the plaintiff thereon”; that “the issues being duly joined in said case, the same was- tried to this court”; that it was adjudged “that the real estate described in said deeds was conveyed by this plaintiff to his several children upon conditions subsequent, and that the assessment of plaintiff on account of said pretended property was illegal,” and that “said decision then had upon the merits of this matter in said case rendered the matter of assessing said property res adjudicata.” The final allegation as to the effect of the judgment partakes of the nature of a legal conclusion, but it serves to interpret the other allegations and to give character to them by showing the purpose for Which they were inserted in the pleading. We think the petition must be deemed to show, at least by fair inference, that in the former action an issue as to the taxability of the rights held by the plaintiff under the deeds was raised, heard, and determined against the defendants. The demurrer was therefore properly overruled, on the ground that estoppel by former adjudication was sufficiently pleaded.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Defendant appeals from an order of the trial court sustaining an objection by the plaintiff to the hearing of a petition filed by defendant for a new trial.
A judgment for a lump sum was rendered in favor of Westye Monson against the defendant on October 18, 1916, in an action for compensation for injuries sustained by'Monson while employed by deféndant. Defendant’s motion for a new trial was thereafter overruled, and he appealed to the supreme court on November 14, 1916. (Monson v. Battelle, 102 Kan. 208, 170 Pac. 801.) On November 24, 1916, Monson died, and the defendant made no effort toward having an administrator appointed and the action revived in his name. On June 26, 1917, this petition for a new trial was filed, wherein it was alleged that at the time of the trial the1 plaintiff, Monson, was afflicted with an exophthalmic goiter; that defendant knew at that time that he was so afflicted, but was not aware until after the motion for a new trial had been overruled and the case appealed to the supreme court that it was of such serious character as he had since discovered it to have been, or that it would cause his death long prior to the expiration of the eight years'for which compensation was allowed; and that his death had occurred as a result of the disease. A summons was issued upon this petition for Monson and returned not served. On September 18, 1917, Elizabeth Appleros, the appellee herein, was appointed administratrix of Monson’s estate, and on October 12, 1917, she had the appeal then pending in this court revived in her name as assignee and administratrix of Monson. Motions were made by defendant to set aside the order of revivor and to continue the cause, both of which were denied in the decision of the appeal on January 12, 1918. On January 15, 1918, another summons was issued upon the petition for a new trial and served upon the administratrix. When the petition came on for hearing she objected to any consideration of it, on the grounds that no petition had been filed as against her, and because more than one year had passed since the rendition of the judgment, and the court sustained the objection.
The petition came too late. The defendant contends that the paper filed on June 26, 1917, asking for a new trial met the requirements of the statute, as it was placed on file within a year after the rendition of final judgment. The statute in effect provides that such a petition for a new trial must be filed not later than the second term after the discovery of ‘the new grounds, and in no event can it be filed more than one year after the final judgment was rendered. (Gen. Stat. 1915, § 7210.) The paper filed with the clerk after the plaintiff had died and before a representative had been appointed was wholly ineffectual. The statute implies the existence of a plaintiff and a defendant, and that the proposed action is to be taken against an existing party upon whom service of process may be made. An action such as the one in which the petition was filed is personal, and it cannot be maintained unless there is a plaintiff and a defendant. Here the person against whom the proceeding was directed was not living. As was held in Brooks v. Boston & Northern Street Railway, 211 Mass. 277, a corpse is not a person, and a proceeding purporting to have been brought in the name of a decedent at a time when no representative had been appointed for his estate is a nullity, and an administrator subsequently appointed cannot be brought into the case by way of an amendment of the void proceeding. The petition delivered to the clerk was therefore without vitality as no plaintiff was then in existence, and when that petition was subsequently adopted by defendant after the appointment of the administratrix and process issued under it the right to institute the proceeding had become barred. No petition.of any validity was filed at least until the one directed against the deceased had been adopted by the defendant, which was more than a year after the rendition of the judgment; and the statute expressly provides that “no such petition shall be filed more than one year after the final judgment was rendered.” The defendant was not without a remedy, as he might have procured the appointment of an administrator of the estate of the deceased plaintiff within the time fixed by statute for the filing of a petition for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff sued the Menzies Shoe Company, a Michigan corporation, and garnisheed certain moneys in the hands of a Geary county, Kansas, firm for a sum due him for services. Another corporation, the Menzies Shoe Company, of Wisconsin, was permitted to intervene, and it claimed the money in the hands of the garnishee. Then the plaintiff amended his petition and made the latter company a codefendant. The parties stipulated that the money really belonged to the Wisconsin corporation, but plaintiff claimed that the latter was bound as the business successor of the Michigan company and possessed of its assets, and that the Wisconsin company had obligated itself to pay the debts of the Michigan company. '
The trial court gave judgment for plaintiff. Defendant contends that—
“The court erred in his conclusion of law that the appellant assumed and became fiable for the. alleged debt of its codefendant, and that, the funds in the hands of the garnishees could and should be subjected to the payment of the same.”
What merit there may be in this contention depends upon the relationship of the two corporations. Aside from the admissions and statements touching the Wisconsin company’s acquisition of part of its, predecessor’s assets, the only evidence was a deposition of a director of the Wisconsin corporation. Included in this deposition were copies of contracts disposing of the business of the Michigan corporation.
The principal stockholders of the' Menzies company and another shoe company of Milwaukee, and the old Menzies company, and the president of the latter individually, all agreed that a new Menzies Shoe Company should be organized in Wisconsin, that it should assume the old company’s corporate name, and that the president of the old company should be president of the new company; the four parties agreed as to the capitalization of the new company and as to its disposition; they agreed that the old company should cease to do business; and they agreed that the assets should be apportioned in part to the new company and in part to the outside corporation. They all agreed, in short, to deal with and dispose of the old company’s assets and business as their own, and to create a nominally independent business successor for the old Menzies company. The contracting parties made some provision for the collection of outstanding accounts of the old company and for their application to the satisfaction of its debts, but the rights of creditors are not limited to any fund thus created. If that fund is insufficient or inconvenient to reach, they are entitled to sweep these agreements aside, for the contracting parties could bind nobody but themselves. They could not prejudice the rights of creditors. ' Indeed, since the president of the old company, and the outside Milwaukee company, saw fit to intermeddle with and dispose of the old company’s assets and business and to create a business successor for the old company, not only is that business successor liable for the old company’s debts, but the inter- meddlers are also liable. The parties who brought about this arrangement and effected this transaction could not create and establish 'the appellant as the business successor of the old company and shape its corporate structure and business policy and endow it with the advantages of the latter without also imposing upon it the disadvantages, that is, the liabilities of the old company. The capital and assets of the old company were a trust fund for the payment, of its debts. The Wisconsin company holds and enjoys all, or nearly all, the assets of the old company; it did not procure them as a wholly independent purchaser at a fair sale, nor otherwise freed of the pertinent liabilities attaching thereto. (Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025; Condenser Co. v. Electric Co., 87 Kan. 843, 126 Pac. 1087; Flemming v. Light and Power Co., 90 Kan. 763, 771, 772, 136 Pac. 228; Coal Co. v. Nicholson, 93 Kan. 638, 145 Pac. 571; Ledbetter v. Oil Co., 96 Kan. 636, 152 Pac. 763. See, also, 10 Cyc. 287, 288; 7 R. C. L., § 169; and notes in 47 L. R. A., n. s., 1058; id. 1068.)
The facts adduced in this case were sufficient to justify and require the application of the principles of law which we have quoted, and the judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff recovered a judgment against the defendant for personal injuries. Plaintiff and her brother were riding in a one-horse buggy on a public road. The defendant’s adult son was driving defendant’s automobile, which approached the buggy from the rear. Defendant and other members of his family were in the car. The automobile overtook the buggy and, in attempting to pass, the right front fender of the car struck and crushed the left rear wheel of the buggy, causing the plaintiff to be thrown out and injured. On approaching the buggy the auto horn was sounded, but owing to a strong wind the occupants of the buggy did not hear the warning until very shortly before the collision. When plaintiff and. her brother did learn of the approach of the automobile, her brother, who was driving the horse, pulled the rein to the right, but before the horse had time to draw the buggy out of the way the mishap occurred.
Defendant pleaded a general denial, contributory negligence, and that her injuries were occasioned by her own fault or that of her brother, or of both.
The evidence showed that the defendant’s son, a man of mature years, was driving the car; that he was in the habit of using the car about his own affairs; and that on the day of the accident he drove the car to church, and asked his parents, defendant and wife, to go with him, and they with other members of the family did so. The son testified:
“'Am doing for myself; rented farm of father on my own account; pay crop rent; am of age; accustomed to drive father’s auto; drive it about my own affairs; . . . car belongs to father; . . . goes to church in it once in a while; I have sometimes invited him to go to church with me in the car; this particular Sunday I invited them to go with me; they consented and went; they had nothing at all to do with the car that day; I am somewhat of a leader in the family; father pays for gasoline, keeps up repairs; I run it; father runs it, too; Sunday of accident I invited them to go, they were my guests then.”
The jury answered certain special questions:
“Q. 3. Do you find that defendant or the driver of the car were guilty of negligence or carelessness in the operation of the auto? A. Yes; the driver of the car.
‘<Q. 4. If you answer question 3 in the affirmative state whom you find to be guilty of carelessness or negligence? A. Both Charles Bahnmaier the owner and his son Roy Bahnmaier the driver of the car.
“Q. 4%, If you answer question 3 in the affirmative state in what particulars he or they were negligent or careless? A. In this, that defendant failed to give the driver of the horse and buggy sufficient time in which to turn out.
“Q. 5. What, if anything, did the defendant or the driver of the auto fail to do in the handling of the auto that ordinary carefulness and prudence would require? A. The car was not stopped in time to avoid the accident.
“Q. 11. Did the driver of the auto, after warning the occupants of the buggy by shouting, keep the car under reasonable and proper control? A. Had control but failed to exercise control. •
“Q. 12. At what rate of speed was the auto running when it struck the buggy wheel? A. Two to three miles an hour.
“Q. 16. What, if anything, had the defendant to do with the operation or control of the auto on the day of the accident and at the time thereof? A. Nothing.”
Several errors are assigned, but the important question is whether the law attaches a liability to ownership of an automobile for damages occasioned by the machine, which occur when the owner is present, but only as a passenger, and when another responsible person is operating the car in accordance with his own judgment and without directions from the owner. On this question the trial court instructed the jury thus:
“I think one of the first questions that will challenge your consideration will be the extent to which Charles Bahnmaier, the owner of this automobile, the father of this boy [adult] is liable for the negligence of his son under the circumstances of this case. As to that, I have to advise you that a father is not liable for the negligence of his son, either an adult or a minor, if the son is acting away from the father, and independently acting for himself; but if the son, either a minor or an adult, is acting for the father, operating the automobile in the usual and ordinary way, doing the things with the automobile that the father himself might do if the son were not present, then I think you will he warranted in saying that if the son was negligent, the father would be liable for damages growing out of the negligence. More than that, I think if the father was present in the automobile with the son, and the son was engaged in an act of negligence and the father saw it and took no steps to prevent it and it was his automobile, the father would be liable for any damages growing out of the negligence of the son.”
The law imposes no liability on a father for the tort of his son on the mere ground of paternity. This is the law even where the tort is that of a minor son (Mirick v. Suchy, 74 Kan. 715, 87 Pac. 1141; Smith v. Jordan, 211 Mass. 269). Unless some rational theory of principal and agent, or of master and servant, supported by substantial evidence, can connect the father with the act or delict of the son, the father is no more liable than a stranger. And this principle holds true whether the father is present or absent when the tort of the son is committed. If I do no more than permit my adult son to use my horse or my shotgun whenever he cares to do so, and if my son is conceded to be experienced in the management of horses and in the handling of shotguns, and is not known to be careless therewith, shall I be held liable if he, in a moment of negligence, rides down a pedestrian or shoots a neighbor’s cow, merely because the horse or the shotgun is mine and because I was personally present when the negligent mishap occurred ? There is no such rule of law in any twentieth-century textbook. Any such rule of liability attaching to mere ownership of an automobile, if found in the decided cases, must have been announced when the judiciary were less familiar than now with that distinctively modern invention. Why should the mere presence of the owner of the automobile, which was in the possession, control and exclusive management of another responsible adult at the time of the tort, subject the owner of the car to liability in damages? An automobile is a more safe and dependable chattel than a horse,’and it is not an inherently dangerous instrument — certainly much less so than a shotgun.
In Watkins v. Clark, post p. 629, just decided, Mr. Justice Burch, speaking for the court, and with his characteristic clarity and precision, said:
“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 act 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 of the car — by declaring that the question of ‘agency’ was one for the jury — a process known in some quarters as ‘passing the buck.’ The sooner the courts 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.” (p. 630.)
In the present case, it was not shown that the father did or failed to do anything whatever which in any way contributed to the accident.
“Q. 16. What, if anything, had the defendant to do with the operation or control of the auto on the day of the accident and at the time thereof? A. Nothing.” [Special finding of the jury.]
The jury specifically says the defendant father had nothing to do with the car or its management on the day of the accident. It was not shown that the son was using the car for his father’s business or pleasure, or for any other project set on foot through the father’s agency. The son was going to church in the automobile and invited the father and mother to accompany him. They went. If the father had stayed at home he would' not be liable, and the fact that he accepted his son’s invitation and did go, as did other members of the family, and was present when the accident happened, does not render him liable for the tort of his son.
The supreme court of Michigan arrived at the same conclusion in .a case where the owner of an automobile had loaned it for a day to a friend, and then at the latter’s invitation the owner went along as a guest or passenger, and a tortious accident occurred through the fault of the borrower who drove the car. The court held that, in the absence of a statute (since enacted in Michigan), the owner was not liable. (Hartley v. Miller, 165 Mich. 115, 33 L. R. A., n. s., 81.)
No negligence of the father is disclosed by the evidence, and as this appeal does not- involve the liability of the son, other questions presented need no consideration.
The judgment is reversed and the cause remanded with instructions to enter judgment for defendant. | [
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Per Curiam:
This case involves the same questions as case No. 22,092, Kirksey v. City of Wichita (ante, p. 761), and is affirmed for the same reasons. . | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a defrauded vendor to set aside a conveyance of real estate, prosecuted against a grantee of the vendee. The plaintiff recovered, and the defendant appeals.
The complete story, involving altitudinous flights in high finance, wholesale forgery, bankruptcy, and suicide of the spotlight actor, might well form the subject of melodrama. The controlling facts, however, are few and simple, and the narrative will be confined to them.
Theodor Peltzer traded for the plaintiff’s farm, giving in exchange an apartment house in Kansas City, Mo., the title to which was held for him by another. An incumbrance on the apartment house was to be released. Peltzer manipulated a fraudulent release, the incumbrance was afterwards foreclosed, and the plaintiff lost the property he should have received for his farm. The defendant purchased real-estate securities from Peltzer. He discovered that certain of them were forgeries, and called Peltzer to account. Peltzer admitted his guilt, and deeded to the defendant several farms, one of them being the farm fraudulently obtained from the plaintiff.
The plaintiff’s right to recover was predicated on two allegations of fact: first, that the defendant took title with notice of Peltzer’s fraud, and second, that the defendant was not a purchaser for value, but stood in Peltzer’s shoes because the conveyance to the defendant was accepted as security for a preexisting debt. The defendant claimed he was a purchaser for value, without notice of Peltzer’s fraud, and pleaded res judicata. The cause was tried by the court and a jury called in an advisory capacity. The jury returned findings' of fact. The court adopted some of the jury’s findings, and made other find ings covering the remaining. issues of fact. The only facts really in dispute, material to a determination of the controversy, were whether or not the defendant purchased with notice of Peltzer’s fraud, arid whether or not he purchased for a new consideration given when the deed was accepted. Both facts were found in the plaintiff’s favor. Either one authorized judgment for the plaintiff, and it will be sufficient to consider the one last mentioned.
Soon after Peltzer’s suicide the defendant’s testimony was taken in a bankruptcy proceeding. He was examined at great length, and his testimony was clear and positive to the effect that the farms were taken as security only, and that if the obligations which he held were discharged, the farms would go back to Peltzer’s estate. Before the trial of the present action the defendant’s deposition was taken, and he then interpolated a consideration for the deeds which would constitute him owner of the farms. The court believed the testimony first given, when the facts were fresh in the defendant’s mind and he was not under stress of menacing litigation. The earlier version of the transaction was corroborated, too, by the testimony of the defendant’s attorney and counselor, given in the bankruptcy proceeding, and by a letter written by the attorney concerning the revenue stamps necessary to the deed from Peltzer to the defendant. The proof was undisputed that the attorney had full comprehension and charge of the business concerning which he was writing, and the statement was pertinent to such business. It reads as follows:
“The previous deed sent you needs only a fifty cent revenue stamp, because this last mentioned deed has been given to Mr. Barzen as additional security for a loan, for moneys loaned to Theodor Peltzer over a year ago. There has been no consideration at this time, passing between Peltzer and Barzen, as Mr. Barzen requested that Mr. Peltzer give him the deed as additional security for previous indebtedness.”
The legal principles governing the controversy were discussed in the cases of Henderson v. Gibbs, 39 Kan. 679, 18 Pac. 926, and Grocer Co. v. Alleman, 81 Kan. 543, 106 Pac. 460. In the Henderson case the court said:
“Where the second purchaser has taken the property only in payment or part payment of a preexisting debt, and has not paid or parted with or surrendered anything of value in consideration therefor, he takes nothing hut the fraudulent vendee’s title, and the original owner may rescind his contract with his fraudulent vendee and retake the property.” (p. 687.)
The defense of res judicata was not established. In certain litigation, which it is not necessary to describe, between parties interested in the Peltzer wreck, a compromise was effected, and a decree of the United States district court for the western district of Missouri was entered, confirming and in compliance with the compromise. The decree declared the present defendant to be the absolute owner in fee simple of the property now in controversy. The present plaintiff was not a party to the suit. After the decree was entered the plaintiff moved that the declaration referred to be eliminated. The defendant moved that the plaintiff’s motion be stricken from the files. The grounds of the motion to strike from the files were that the plaintiff was not a party to the suit, and that because he was not a party his rights were not affected, and he was in no manner barred, denied, or estopped from pursuing any legal right or remedy he might claim in an independent suit against the defendant concerning the property. This motion was allowed, and the plaintiff’s motion was stricken from the files. It seems the defendant regarded it as important to keep the plaintiff out of the federal court case, and, having prevented the plaintiff from obtaining an adjudication of his motion on the very ground that the decree did not adjudicate anything against the plaintiff, the defendant cannot now be heard to say otherwise.
There is nothing else of importance in the case. Much complaint is made because a jury was calléd, of the conduct of certain jurors, and of the findings of the jury. The practice in such cases is too well settled to need restatement here. The judgment rests on findings for which the court was responsible. Complaint is made that witnesses testified to personal transactions with Peltzer, who were not competent to do so. In the course of the examination of the person who held title for Peltzer, some testimony of this character crept into her deposition. All objectionable testimony, however, and considerable more, might be stricken from the record without affecting the result, and the presumption is the court disregarded all improper evidence in making its findings. The claim of laches on the part of the plaintiff, not pleaded but raised in the defendant’s brief, is not supported by the evidence. Certain conclusions which the defendant draws from evidence on which it is plain the court did'not rely, need not be considered.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendants, his employers, for damages suffered by him while working in a sewer trench which was being constructed by defendants in Garden City. ' His petition charged negligence in the failure of defendants to place braces in the trench to support its walls; and as a consequence a cave-in occurred which seriously crushed and injured him.
The defendants pleaded plaintiff’s assumption of risk and contributory negligence. The cause was tried before a jury, but when all the evidence for both plaintiff and defendants was submitted the trial court sustained a demurrer to plaintiff’s evidence and directed the jury to return a verdict for defendants.
Was this error? The evidence of plaintiff and his witnesses disclosed that on the day before the accident plaintiff spoke to the two foremen on the work, calling their attention to the dangerous condition of the trench. The plaintiff said, “It looks like this hard dirt in here might fall in.” A foreman replied, “No, this hard dirt won’t fall. It is safe.” The plaintiff then inquired, “What have you got to keep this from caving in?” and the foreman answered, “We have got braces and as soon as we can get them up here and get the car unloaded we will put the braces in, but don’t leave any dirt in there. It is perfectly safe, and the hard dirt won’t fall in.” Plaintiff’s abstract continues:
“That the witness [plaintiff] again called his attention to the fact that 30 feet away from there, there had been a cave-in, but Hall said there was no danger, and that the hard dirt would not fall. That he told Hall that he thought it was dangerous, and might fall in. That Hall then told him that the braces were in the yards then, and that if he could get a dray team he would probably have them there by noon the next day. . . .”
The f ollotying questions were asked the plaintiff:
“Q. Now, why did you -stay there, and continue to work, Mr. Stark-weather, if you thought it was dangerous, and in danger of caving in?
“A. Just simply because Mr. Hall assured me that the hard dirt would not fall, and that he would have the braces in probably by noon tomorrow, or just as .-soon as he could get them unloaded. He seemed to think it was perfectly safe, and he was used to such things, and he said it would not fall, and it was his assurance that I stayed in there.”
In support of the judgment, it is contended that there was no evidence to show that the defendants’ failure to brace the trench was negligence. But negligence might be deduced from the circumstances. In the first place, it was the defendants’ duty to make the place reasonably safe for their employees to work in. (Mining Co. v. Robinson, 67 Kan. 510, 513, 514, 73 Pac. 102; Griffin v. Brick Co., 84 Kan. 347, 114 Pac. 217.) The promise to provide braces was -some evidence of their necessity to make the trench a safe place in which to work, and consequently that without such braces the trench was not a safe place for workmen; and the cave-in and the plaintiff’s resultant injuries were potent evidential facts tending to show defendants’ failure to make the place safe for work, in other words, to show defendants’ negligence, sufficient to take the case to the jury.
It is the law that where a workman continues to work in a place of danger upon the master’s promise to make it safe within a reasonable time, the workman does not ordinarily assume the risk during the interval until the repairs or safety devices are to be forthcoming. (Lupher v. Railway Co., 86 Kan. 712, 122 Pac. 106; Williamson v. Oil and Gas Co., 94 Kan. 238, 243, 244, 146 Pac. 316; City of Owensboro v. Gabbert, 135 Ky. 346. But there is a qualification upon that rule, which is that if the danger is so obvious that a reasonably prudent person would not continue to work in such dangerous place, then the workman who does continue to work there does assume the risk, notwithstanding the master’s promise to make safe or repair the place of danger. (Williamson v. Oil and Gas Co., supra; Pulos v. Railroad, 37 Utah, 238, 107 Pac. 241; 4 Thompson’s Commentaries on the Law of Negligence, §§ 3912, 3913.)
Cases are cited on the point that where the workman knows or has as good opportunities for knowing the extent and imminence of the danger as his employer,, such workman who remains in the place of danger assumes the risk (Metz v. Railway Co., 90 Kan. 463, 465, 135 Pac. 667; Barnes v. Akins, 101 Kan. 359, 166 Pac. 474), even although the employer has as sured him that the place is not dangerous. (Walker v. Scott, 67 Kan. 814, 64 Pac. 615; 26 Cyc. 1213.) Defendants contend that such were the facts of this case. A jury might think so (Sappenfield v. Zinc Co., 94 Kan. 22, 27, 145 Pac. 862; Morgan v. Rainier Beach Lumber Co., 51 Wash. 355, 98 Pac. 1120; 22 L. R. A., n. s., 472, and note), but when ,a court is called on to rule on a demurrer to the evidence a most tolerant and generous view of the evidence must always be given. (The State, ex rel., v. Gerhards, 99 Kan. 462, 464, 162 Pac. 1149, and citations therein; Russell v. Considine, 101 Kan. 631, 634, 168 Pac. 1095; Mentze v. Rice, 102 Kan. 855, 856, 172 Pac. 516; Bushey v. Coffman, ante, p. 209, 173 Pac. 341.)
The record shows that the defendants, or. their foremen, were capable and experienced men in trench work; and it shows that the plaintiff had’ only been employed for a few days/ from the day after Thanksgiving until December 9. Perhaps that was the limit of his experience as a trench digger. He testified that he continued at work because of his confidence in his experienced foreman’s opinion that the place was safe. Of course, if plaintiff was capable of appreciating the danger, he could not rely upon the assurances or opinions of the foreman (Walker v. Scott, supra), but this feature of the case, under proper instructions, was for the consideration of the jury. (Griffin v. Brick Co., 84 Kan. 347, 350, 851, 114 Pac. 217; 26 Cyc. 1218, 1220.)
It seems clear that the demurrer to plaintiff’s evidence should have been overruled, and that the cause should have been submitted to the jury.
Reversed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs were the assignees of an insurance policy for $200. The insured, R. W. Farris, who had suffered a fire loss, assigned the policy to them to satisfy debts due for work and labor.
The insurance company sent the money to pay the fire loss to its local agent, F. W. Roberts, and the defendant, M. C. Snyder, sued Farris and garnisheed the money in the hands of Roberts. Snyder knew that the policy had theretofore been assigned to plaintiffs; and plaintiffs knew of the garnishment proceedings, but were not made parties thereto. Snyder obtained judgment, and the money was paid over to him. - Thereupon plaintiffs brought this action against Snyder and the other parties concerned, and obtained judgment against Snyder for the exact amounts due them from Farris, for the satisfaction of which sums Farris had assigned the policy to them.
Just what error-in'this judgment is urged by defendant is not easily discernible. It is. said that the action brought was equitable in its nature, and" that an adequate remedy at law would have answered the purpose. Notwithstanding our code has abolished the ancient distinctions and forms of actions at law and of suits in equity, and has provided one form of action —a civil action — in lieu thereof, fundamental differences in actions sometimes do exist, but we do not discern how any such differences affect the case at ba'r. The facts were all pleaded. The parties were all before the court, and their true relationship was a proper subject of judicial inquiry. The garnishment did not lawfully operate on so much of the proceeds of the policy as had already been assigned to plaintiffs. (Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210.) Having got possession of the proceeds of the insurance policy when he knew it had been assigned to plaintiffs, Snyder became, in law, a trustee thereof for plaintiffs’ benefit. • He must, therefore, hand over to plaintiffs their due. There is no semblance of error in this judgment. It is not conceivable that some different form of action or different procedure properly invoked could have brought about a different result.
Affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one to recover on an accident insurance policy. The defense was that the death of the assured resulted from disease, and not from accident. The plaintiff recovered, and the defendant appeals.
The principal contentions of the defendant are that the special findings and verdict of the jury were not sustained by sufficient evidence, and were contrary to the evidence.
The deceased, who was a painter and paper hanger, had enjoyed good health for many years previous to an injury which it is not disputed he received a few days before his death. While at work painting a house he had occasion to carry a'piece of timber, and while doing so, fell. He immediately complained of being hurt, groaned, and said, “I hurt my side awful.” His employer went to the side of the house where he was, and he said he was hurt, said.he thought something had given way, that it felt to him like something had given way, and said he did not believe he could work the remainder of the afternoon. He walked to a near-by street-car line, took a car, and went home. His home was about a block from the place where he left the car, and in traveling that distance he walked very slowly, although he was usually a rapid walker. He arrived at his home about three o’clock in the afternoon, and told his wife he had hurt his side, said he felt something give way, and complained of suffering severely in his side and back. The accident occurred on Saturday. On Monday at about two o’clock in the afternoon he took to his bed, kept growing worse, and died on Friday morning. He called a physican on Monday morning. The physician testified that because the deceased complained of difficulty in breathing, he thought there were internal injuries.
The foregoing facts, gleaned from the testimony favorable to the plaintiff, were ample to sustain the special findings that-the deceased came to his death through violent, external, accidental, and involuntary means — a fall while carrying a scant-ling — whereby he sustained severe internal injuries.
A witness who claimed he saw the deceased fall introduced into his account of the accident a banana peeling on which the deceased slipped, and the physician who attended the deceased included in his account of the fatal illness, lead colic induced by lead poisoning. Whether or not these features of the testimony, or either of them, should be believed, was a matter for the jury to determine. What the jury believed may be inferred from the fact that in stating the cause of injury the jury did not say the deceased slipped, and in stating the cause of death the jury expressly excluded lead poisoning and lead colic.
There is nothing else in the case. An amendment of the pleading was, under the circumstances attending the application to amend, a subject within the discretion of the court. The plaintiff was not concluded by the physician’s statement which accompanied proof of death, that the deceased was afflicted with lead poisoning. Instructions requested and refused and an instruction given over objection, involving the subject of lead poisoning and lead colic, are now immaterial, in the light of the special findings. The special findings brought the injury sustained clearly within the terms of the policy.
A cross appeal relating to an increase in the amount of recovery is without merit: first, because the subject was covered by an instruction to the jury of which plaintiff did not complain by motion for a new trial or otherwise; and second,- because the instruction was correct.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
This proceeding involves the validity of a special assessment on the property of plaintiff to pay for paving a portion Of Monroe street in the city of Topeka.
The tract assessed is a part of a block in the platted portion and near the center of the city, but not all of the block in which the land lies has been subdivided into lots. The plaintiff’s tract and the district in which it lies is quite well shown by the accompanying map. It will be observed that the block is larger than other blocks surrounding it, and that a part of the west half of the block has been subdivided into lots. Only sixty feet of the tract assessed touches Monroe street and the remainder of it lies behind the lots mentioned, but within the west half of the block. The court sustained the assessment, but instead of imposing it to the middle of the block, it was only placed upon the lots and pieces of land therein to a distance of 800 feet from the improved street.
The parties speak of and treat the tract involved as unplatted land, evidently because it has not been subdivided into lots of the customary size,.'and the plaintiff insists that it should be regarded as unplatted ground which is not subject to an assessment, under the rule of McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438. The tract in question is in fact platted ground. It is a part of a block, and the block is the unit upon which an assessment for street improvements is made and apportioned. (Gen. Stat. 1915, § 1231; Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405; Cravens v. City of Salina, 101 Kan. 161, 165 Pac. 801.) The block in question is composed of lots and pieces of ground, and the fact that a part of it is not subdivided into lots does not make it unplatted land, nor does the fact that it may differ in shape and size from other blocks change the rule or affect the validity of the assessment. (Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565.) In a case involving a similar situation, in which a like question arose, it was held that the railroad property within a block was subject to assessment. (Railway Co. v. City of Chanute, 95 Kan. 161, 147 Pac. 836.) There is no real conflict between McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438, and the later cases on the subject. The land involved in the McGrew case was agricultural land which had never been platted into lots or blocks, and which lay outside of _the platted part of the city. In the later cases, the grounds in question were in blocks within platted territory. The statement in the opinion in the McGrew case on which reliance was placed, was used with reference to unplatted land, and the rule in such cases does not apply to land in a block within a platted district.
It is said that the decision of the trial court indicates that the case was tried upon the wrong theory, as the assessment was only extended 300 feet from the improved street, which covered less of plaintiff’s land than if it had extended to the middle of the block. Under the statute it should have been extended to the middle of the block, and of this the city had reason to complain. As to the plaintiff, it was harmless error, and the rule is that if the court or other tribunal erroneously gives to the party complaining more than he is entitled to, he cannot take advantage of such error, because he has not been hurt. In such a case there must be not only error, but also prejudice of the rights of the appellant.
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The opinion of the court was delivered by
West, J.:
The plaintiff claimed, and the jury found, that she had made settlement on the land in- controversy and was entitled to it as a school-land island. The defendant appeals, and denies the island character of the land, which he says is an accretion, and presents an able argument in support of his opinion that the Arkansas is not a navigable stream a$ decided by this court in Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041, and The State, ex rel., v. Akers, 92 Kan. 169, 140 Pac. 637.
As to the first point, the evidence supports the verdict and findings made by the jury, guided by admirable instructions by the trial court, and the result must stand.
As to the second point, the .character of1 the Arkansas river as a highway of commerce set apart by the federal government and its navigability in law have been repeatedly declared by this court, and vigorous attempts to obtain from the national supreme court a contrary ruling have failed.
We cannot now entertain what is in effect a motion to rehear the Dana case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The trustee in bankruptcy of the estate of Oliver. R. Gillespie brought this suit to have construed the will of Oliver’s father, alleging that the bankrupt was owner of a tenth interest in the land covered by the will, which interest should be counted a part of his estate on account of his mother’s having taken a life estate with power to sell, instead of a fee simple title as claimed by the defendants; and that he had been ordered by the referee in bankruptcy to bring this suit in order to determine the proper interpretation of the instrument.
The defendants filed a plea to the jurisdiction, which was overruled, and then a general demurrer to the petition, which was also overruled. They then answered, admitting that Jacob Rankin Gillespie made his will on the 31st day of May, 1900, and that Rebecca J. Gillespie departed this life November 5, 1917, and alleging that, by the will of the father, the mother took the absolute estate in the land described in the will, and that Oliver at no time prior to his mother’s death had any interest in the land, but at that time inherited the tenth interest therein from his mother. The court found in favor of the plaintiff, and that his father devised to the mother a life estate with power to sell, and she having departed this life without disposing of any of the property, Oliver became the owner of an undivided one-tenth interest therein.
The defendants appeal.
The clause requiring construction is in the following words:
“Second. All the residue and remainder of my estate, both real and personal, I hereby give, bequeath and devise unto my faithful and beloved wife, Rebecca J. Gillespie, to have, enjoy, sell or dispose of in any manner she may see fit, or in her judgment may conduce to interest or value of said estate, or any portion of it; and upon her death, that all real and personal property she may die seized of shall then be distributed among my children, share and share alike, or if any of my said children shall then be dead, and leave children, then such grandchildren together shall receive the one share their deceased parent would have been entitled to if living.”
It is contended that the estate of Oliver R. Gillespie having come under the exclusive control of the bankruptcy court, the' state court had no jurisdiction to maintain this suit. But section 23 of the bankruptcy act, as amended, provides (with certain exceptions not material here) that suits by the trustee shall only be brought or prosecuted in the courts where the bankrupt, whose estate is being administered by such trustee, might have brought them if proceedings in bankruptcy had not been instituted.
“State courts have jurisdiction in suits between a trustee in bankruptcy and third parties asserting rights in property claimed by the trustee as belonging to the estate of the bankrupt.” (Collier on Bankruptcy, 11th ed., 554.)
“Especially in view of the provisions of the bankruptcy act, as amended, giving ‘concurrent jurisdiction’ to the state and federal courts of actions of the kind mentioned, it is now held that any state court of competent jurisdiction may enforce actionable rights arising under the bankruptcy law. Such a court in passing upon the claims of a trustee in bankruptcy, is not proceeding under the bankruptcy law, but simply recognizes that statute as the source of the trustee’s title, in the same manner as it would if he derived his title from a deed or contract.” (Black on Bankruptcy, 935.)
“The state courts are open to a trustee in bankruptcy seeking to enforce or to protect the interests pertaining to his trust.” (7 .C. J. 257.)
The trial court has jurisdiction ordinarily to construe a will, and here, the referee having directed the trustee to bring such a suit, no conflict of jurisdiction could arise by determining whether the bankrupt' estate included an interest in this land.
The will in question is one which could be construed as giving a fee simple or a mere life estate, and is one on which legal minds might well differ, each supported by abundant authorities. To give, bequeath, and devise to the wife “to have, enjoy, sell or dispose of in any manner she may see fit or in her judgment may conduce to interest or value of said estate or any portion of it,” would of itself be deemed to pass the absolute title; but when, as a part of tbe same sentence, the provision is made that upon the devisee’s death all real and personal property she may die seized of shall then be distributed as directed, such provision is entitled to attention and consideration. If the testator intended to make no requirements or restrictions as to the estate, except to pass a fee simple to his wife, it would seem idle to have used the language employed in this instrument. In Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802, the joint will of the husband and wife gave all the estate of which the one dying first should be seized, to the other to be owned and disposed of as the survivor might desire, and upon the death of such survivor all the estate not disposed of was devised and bequeathed to their children in e'qual parts. It was held that this vested in the survivor a life estate with the added power of disposal, remainder to the children. In the opinion many authorities were reviewed.
The rule that when a will once gives a fee simple title a subsequent contraditory provision must fail, is not applied in these days, when from the words used, such rule would go counter to the intention of the testator. A single clause in a separate item was held inadequate'to subvert the manifest intention of the testator in Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280. The modern rule applicable here was. succinctly stated by the chief justice in Brown v. Brown, 101 Kan. 335, 166 Pac. 499, to be “that the intention of the testator, as gathered from all parts of the will, is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator.” (syl. ¶ 1.)
The trial court followed this rule, and the decree is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
In petitions for a rehearing filed by the several defendants herein, some mere defects of pleading are now urged against the informations, which were not directed to our attention when the appeals were formally presented, and to which no reference can be noted in the briefs of counsel.. The briefs and arguments of counsel were properly devoted to the weighty and difficult questions involved in the interpretation ol the trading-stamp act, the history ,of similar litigation in other jurisdictions, and the constitutional questions involved. Any defects in the mere art of pleading which may inhere in the in-formations were waived, and this court will not now consider them.
The court is urged to say whether under any circumstances a trading-stamp company which is not engaged in merchandising’on its own account can prosecute its trading-stamp business in Kansas without a license, but we can only decide questions which are squarely involved and squarely presented in an appeal; and if the court should now give a dogmatic negative to this question, it would only be dictum, and nobody would be bound by it.
Rehearing denied. | [
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The opinion of the court was delivered by
Porter, J.:
Samuel Burkhart and John T. Weaver were half brothers. Samuel Burkhart, who was unmarried, was advanced in years and was weak-minded. He owned 160 acres of land in Cowley county, near Winfield. Sometime in 1912 he was adjudged incapable of transacting business, and John W. Skinner was appointed his guardian. He went to live with Weaver at the latter’s home, under an arrangement between the guardian and Weaver by which the guardian purchased enough land from Weaver upon which to build a room for Samuel to live in, and Weaver agreed that if this were done he would board and care for Samuel,' for which he was to receive $2.75 per week. The sum of $892.86 was expended by the guardian in building an addition to Weaver’s house and in repairing and enlarging the part owned by Weaver. Samuel Burkhart continued to board with Weaver until December 20, 1916, when he was removed to a hospital, where he died January 2, 1917. During the time he remained with Weaver, the latter presented to the guardian each month his account for the compensation agreed upon and was paid the amount due according to the terms of the agreement. Shortly after Samuel Burkhart’s death Weaver presented to the guardian, and was paid, his claim of $8.00, being the amount due for the portion of the month of December prior to the time his brother was taken to the hospital. Thereafter the guardian filed his final report, and the probate court discharged him as guardian. After the guardianship ^matter had been closed, John W. Skinner was appointed administrator of the estate of Samuel Burkhart, deceased: Weaver then filed a demand against the estate, in which he claimed to be entitled to compensation for the board and care of Samuel Burkhart from January 1, 1914, to May 7, 1916, at the rate of $15 a month, and at the rate of $1 a day for 221 days’ board and care from May 7, 1916, to December 20, 1916, aggregating $647. The matter was appealed to the district court, where a trial resulted in a judgment in plaintiff’s favor against the estate for the sum of $400. The administrator brings the case here for review.
The theory upon which Weaver seeks to recover against the estate is best explained by his own testimony. He testified that he had an understanding with the guardian that he was to be paid $2.75 a week “to take care of Samuel and look after him, board him and do his washing.” He was then asked: “Was that a reasonable and fair price for the board at the time when it was made?” Over the objections of counsel for the administrator, he testified that 'it was not a fair contract the last year or two of Samuel Burkhart’s life; and again, over objections, was permitted to testify that he did not think it was a fair contract at the time it was made. He admitted that he felt some moral obligation to take care of his half brother, who had no other place to go, and who wanted to live with him. The court overruled objections to his testimony that reasonable compensation for his brother’s board, in view of the cost of living, was $3.50 a week; that the cost increased about half a dollar a week each year until the last year or two; and that a reasonable compensation for the board alone would be from $4.50 to $5 a week; and further, that after his brother suffered a paralytic stroke in May, 1916, it was worth, in his opinion, $15 a week to board and care for him. Mrs. Weaver testified that at two or three times she complained to the guardian that they were not getting enough ■ compensation. Her testimony, which was quite vague and uncertain, was;
“Well, so far as I remember, Mr. Skinner said he would pay us more in the future; something similar to that; I don’t just remember.
“Q. Said he did n’t have the money now, but intimated that he might have later? A. Something similar to that.”
The plaintiff himself did not testify to any agreement with the guardian for additional compensation.
We think the court should have sustained the administrator’s demurrer-to the evidence. The plaintiff admitted making a contract with the guardian to board and take care of his brother for $2.75 a week, and the uncontradicted evidence shows he presented each month a bill to the guardian for compensation at the agreed rate, which the guardian duly paid. He relies on the testimony of Mrs. Weaver to the effect that she had some kind of an understanding with the guardian that at some indefinite time in the future he would pay more, and upon the claim that the services rendered were worth more than the compensation agreed upon. The plaintiff had no claim against his brother in the latter’s lifetime, because Samuel Burkhart was under the care of a guardian. After Samuel’s death, and before the appointment of an administrator, the guardian paid the balance claimed to be due according to the terms of the agreement. The compensation may have been inadequate, but it was the amount agreed upon in the contract; and besides, the ev4dence shows that part of the consideration agreed upon consisted of the money expended by the guardian in repairing and fixing up that part of the property belonging to Weaver. By presenting his claim each month for the compensation fixed by the contract, and accepting payment therefor, the plaintiff is estopped from claiming that an increased rate had been agreed upon, or that he is entitled to recover more because the services rendered were worth more than'the contract price.
The judgment is reversed and the cause remanded with directions to sustain the demurrer to the evidence. | [
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The opinion of the court was delivered by
Mason, J.:
On January 13, 1916, the Capital Iron Works Company entered into a written contract with W. W. Finney by which it agreed to furnish for $1,700 the iron and steel work for a garage; Later Finney informed the company that by reason of a change in his plans he could not use the material contracted for, with certain exceptions, and directed a'discontinuance of the work. Five cast-iron lintels which were furnished were paid for. The company sued Finney for damages for breach of the contract. The defendant filed an answer stating in effect that the contract had been modified by mutual consent, a new agreement being made providing that the material furnished should be paid for upon an agreed basis, and as to the rest the contract should be canceled. In a reply the plaintiff denied this allegation and asserted that no consideration existed for any modification or cancellation of the contract. A trial resulted in findings and a judgment in,favor of the defendant, the plaintiff being allowed a recovery of only $5.10. The plaintiff appeals.
There was a direct conflict in the evidence. The defendant gave testimony to this effect: On January 14, 1916, the day after the signing of the contract, he wrote a letter to the plaintiff which he deposited in the mail, properly addressed and stamped (the receipt of which was afterwards referred to by representatives of the company in conversation with him) stating that he had changed his plans, and directing that no work be done except upon the lintels and columns. About February 24, 1916, he called at the company’s office in pursuance of an appointment made by telephone and told the manager (who had signed the contract for The company) that he had come to see about the shipment of the lintels and columns and to make full settlement with him. He proposed to the manager that they be shipped and billed at the regular price (irrespective of that fixed by the original contract), saying that he would pay that amount and would also pay for his share of some expenses incident to the letting of the contract. The manager said that this was satisfactory.
The plaintiff introduced evidence denying this conversation and denying the receipt of the letter referred to, but the decision of the court must-be regarded as resolving all controversies concerning the facts in favor of the defendant. The plaintiff contends that, even assuming the truth of the defendant’s evidence, it was entitled to recover damages resulting from the breach of the contract, one item being the loss of the anticipated profits. We regard the evidence already set out as sufficient to support a finding that the contract was modified by agreement, and that the defendant had carried out the terms of the modified agreement on his part; or, stated in another way, that the plaintiff had agreed to accept, in satisfaction of any claim for the breach of the original contract, the payment by the defendant of a share of the expenses referred to, and the acceptance of the lintels and columns at a price then agreed upon. This seems a legitimate interpretation of the defendant’s testimony that (after telling the plaintiff’s representative that he had come to make a full settlement) he proposed to make these payments, and in reply was told that this was satisfactory. The agreement to pay for the material actually furnished at a different price, presumably higher than that at which it was figured in the original contract, formed a sufficient consideration for the modification. (13 C. J. 592.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a decree of divorce granted to the plaintiff. The amended petition alleged that the parties were married in Missouri in 1871; that about four years before this suit was begun the defendant willfully abandoned him and had ever since remained away and lived apart from him and had refused to maintain the relation of a wife to him, thereby constituting abandonment and gross neglect of duty; thftt for a long time prior to such abandonment she was almost constantly complaining, scolding, and abusing plaintiff over trifling and insignificant matters, to such an extent that it became almost impossible for him to live with her; that at various times in the presence of divers persons she assailed his character, accused him of murder and adultery, and at one time assaulted and beat him; and that for the purpose of harassing and injuring him and interfering with his business she informed the plaintiff that he would never so long as he lived be able to sell and dispose of any of his real estate, and she refused to join with him in deeds of conveyance for lots which he had opportunities to sell at attractive prices, in order to torment, injure, and harass him. It was further alleged that after the abandonment by the defendant the parties entered into a contract in writing providing for a complete settlement of all their property rights, which had since been carried out by an actual division of the property.
After a general denial, the defendant pleaded that the only trouble between the parties had arisen because of the plaintiff’s misconduct; that in the year 1883 he became infatuated with one Lizzie Doab, buying and furnishing a house for her, supporting her for a long time, afterwards bringing her to Kansas with him and living with her here; that thereafter the relationship between him and this woman ceased, and the defendant forgave the plaintiff for his past offenses and continued to live in peace and harmony with him for many years, during which they, by their joint efforts, accumulated a large amount of property; that during the year 1911 they moved to Dodge City for the purpose of making their home there during the last years of their lives, but that upon their arrival the plaintiff became infatuated with one Velma Warder in such open and notorious manner as to cause public scandal and criticism; that he was also unduly attentive to Velma Warder’s sister, one Etta Conrad, and finally abandoned and deserted the defendant in the fall of 1911, first living with the Conrad woman and her husband, and visiting with increasing frequency Velma Warder, and afterward taking up a residence of his own and employing Velma Warder therein; and that during the summer of 1915 he took a trip to California with Velma Warder and another sister, his conduct with these women constituting a public scandal. She further alleged:
“That the cause of the separation between herself and plaintiff is due solely to the infatuation of the plaintiff for said Velma Warder and is caused not by any fault on the part of the defendant, but by the misconduct of the said plaintiff.”
There is no direct charge of adultery with any of these latter named women.
The court made findings of, fact, and, after reciting the adultery with Lizzie Doab in 1885 and 1886, found that about the year 1886, after the defendant came to Kansas, knowing of the former relation with the Doab woman, the parties were reconciled and lived together for more than twenty years; and that about the year 1911 the defendant refused to live with the plaintiff any longer, alleging as her reason therefor that he had become infatuated with a Mrs. Conrad and her sister Velma Warder.
“7. The defendant for some time prior to her refusal to reside longer with the plaintiff in 1911, had been complaining and found fault with the plaintiff and refused to permit him to handle his property, particularly real estate, to which she refused to join in the execution of deeds, thereby hindering him in business transactions.
“8. The defendant accused the plaintiff of infidelity, and according to the testimony of the plaintiff, which was corroborated by the witness, W. H. Eagle, the defendant was frequently compelled to leave the table at meal time, to get away from the defendant’s fault findings and accusations.
“9. Upon one occasion in the year 1911, the plaintiff and defendant had a difficulty ending in a fight, as a result of which the plaintiff was charged with assault and battery upon the defendant, but the jury, after hearing the evidence in the case, found that the plaintiff was not guilty of any offense, and he was acquitted.
“10. Ever since the year 1911, when defendant refused to reside longer with plaintiff, they have lived apart, and there seems to be no hope of their reconciliation. The apparent ill feeling between the parties has grown more pronounced, and the ends of matrimony have been utterly defeated. '
“11. About the time of the separation in 1911, the parties made a property settlement, which has since that been put into execution; the court finds that the same was a just and equitable settlement, ample provision having been made by plaintiff for the defendant, and that the same should be ratified.
“12. There is no sufficient evidence to prove the plaintiff guilty of adultery in recent years, and while he may have been indiscreet in his conduct to some extent, there is no evidence to warrant the court in finding that in recent years the plaintiff has been guilty of adultery or of any conduct which would be sufficient to revive the old offense of adultery which had been condoned for more than twenty years before the separation of plaintiff and defendant.”
Without going into details, it may be said that had the trial court, with the advantages of hearing and seeing the witnesses, found that the plaintiff, instead of being merely indiscreet, had relapsed- into a continuous and persistent adulterer, the abstracts contain evidence to support such finding; but, of course, there were the usual denials, and in one instance the apparent impeachment of a witness who saw through a window which did not exist, all of which the trial court doubtless duly weighed and considered.
It has been held that—
“The proof to establish the adultery must be clear, positive and satisfactory. . . . the circumstances must lead to it, not only by fair inference but as a necessary conclusion; appearances equally capable of two interpretations, one an innocent one, will not justify the presumption of guilt.” (Burke v. Burke, 44 Kan. 307, syl. ¶ 3, 24 Pac. 466.)
The defendant complains of the decree of divorce, being entirely satisfied with the property settlement, urging that the testimony shows the plaintiff to be the offender rather than herself, that the court below failed to apply the law of condonation and recrimination, that there was no testimony justifying a finding that the plaintiff was without fault, and,
“Fourth. The testimony utterly fails to determine that Mrs. Roberts committed any offense against the marital relations, and we,therefore respectfully ask that this court direct that a new trial be had in this case.”
The plaintiff testified, among other things, that he was 66 years old in 1917, and that for two years prior to- the division of the property he and his wife had not lived together. He fixed up the house to suit his wife, fixing up four or five rooms just the way she wanted them, and undertook to occupy a bedroom he had prepared for himself, but that when she would go away she would lock the outside doors so that he could not get into his room, and he had to break in with a crowbar; that she told him he had no business there, that it was her property; that the other old house was good enough for him, and so he took her at her word and went over there. He testified that she refused to sign deeds to his property; and that he .owned 1,960 acres of wheat land and 8 of 10 pieces of property in town.
“Q. What other troubles did you have? A. Oh, my goodness alive. I could not tell you. I would not attempt to tell you. We had plenty.
“Q. I want you to tell the court something oí the nature of them and what they were? A. Well, I happen to think of just one thing right now. I go to see my old mother once a year and have been now for ten years. I have rheumatism pretty bad at times, and I tried to put my collar on at one time before the mirror to dress to go to see my old mother and she walked backwards and forth and jawed me and abused my old mother just to aggravate me. I know she had nothing against my old mother.
“Q. What did she say about your mother? A. She called her an old wretch and an old bitch and said she ought to go to hell. I asked what for. Said for raising such a son-of-a-bitch of a son as you are. Then she quit by saying she hoped the train would wreck and send my soul into hell before I ever reached there. That is just what she said to me and I never will forget it.”
He further testified that she accused him of having been a murderer, and took pains to circulate the report; that she struck him several times with her hand opened and slapped him on the sides of his head, but that he did not touch her; that at the time of the fight mentioned in the findings she and her daughter beat him up and tried to kill him; that he did one time, before he came to Kansas, shoot a. man in self-defense, a crowd having begun shooting at him, but he was never even indicted.
W. H. Eagle, a contractor who built several houses for the plaintiff, including the new house from which the. latter moved at the time of the separation, testified that Mr.- Roberts was building a new house and that Mrs. Roberts had agreed as a consideration therefor, although no separation had been had at that time, that he would be allowed to trade any real estate, and that she would sign a deed whenever he asked.her to.
“Q. How many times would you say during the time you were there that he left the table to get away from her abuse? A. Well, to try to make an average of it as well as my recollection goes I would say about one-half of the times when he was reproached.
“Q. I will ask you if Mrs. Roberts at any time ever said anything to you about Mr. Roberts having killed some man in Missouri? A. Yes, sir.
“Q. When and where did she say anything to you about that? A. At the house where I was eating my meals.
“Q.' What did she say to you about that matter? A. Well, I cannot quote her words exactly, because she used a good many of them, and left the impression on my mind that she thought she had a lead-pipe cinch and could lead the old man by the nose anywhere she wanted.
“Q. ' What did she say about the matter of having killed a man or men in Missouri? A. She said that he had killed a man in Missouri and that she had him practically under her thumb.” *
He further testified that in prior years she had held up real-estate deals by refusing to sign deeds, and afterwards she violated her agreement to do so; that he never could recall a single meal eaten at the house when Mrs. Roberts did not find fault with Mr. Roberts about something; that the plaintiff did not even talk back to her, and that all he did was beg her to let him be in peace.
While the defendant testified that she thought it wicked to get a divorce, and that for two hundred years there had not been a divorce among the women of her family, her husband swore that, she frequently threatened him with this very evil.
We are asked to hold, not only that the court might in its discretion have denied the plaintiff a divorce, but also that it was its duty so to do, on the ground that his conduct destroyed the effect of the condonation of his former offense and put him in a situation entirely inconsistent with the claims of equity.
In Day v. Day, 71 Kan. 385, 80 Pac. 974, the chief justice speaking for the court said:
“It will be observed that the refusal of a divorce, when both parties are guilty of violating the marriage contract, is left to the discretion of the trial court.” (p. 888.)
-“Ten grounds for divorce are prescribed by the statute; and abandonment, when established, is just as effectual to dissolve the marriage relation as is the graver offense of adultery. Since the legislature has treated each ground as the equal of any other, and visited upon each offense the same legal consequences, the court cannot well distinguish between them because one offense may appear to us to involve more of turpitude or disgrace than another.” (p. 389.)
After discussing the doctrine of recrimination, it was said:
“We cannot say that there was not such equality of wrong as the statute contemplates. The question was settled by the legislature, and the court in its discretion could, as it did, hold that the plaintiff, who had been guilty of extreme cruelty and gross neglect of duty, was in equal wrong with the defendant, who was guilty of adultery.” (p. 390.)
In Bovaird v. Bovaird, 78 Kan. 315, 96 Pac. 666, the same writer said:
“The statute vests the court with discretion to refuse a divorce where the plaintiff, as well as the defendant, is in the wrong.” (p. 317.)
Section 668 of the code of civil procedure provides that—
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce.”
In Spitsnaugle v. Spitsnaugle, 87 Kan. 408, 124 Pac. 162, it was held that—
“When a statutory ground for divorce has been established, as in this case, the court has no discretion to refuse a decree unless the parties appear to be in equal wrong.” (p. 410.)
It is argued; and authorities are cited, to the effect that con-donation of the former misconduct of the husband must be deemed to have been on the continuing condition that he not only refrain from similar misconduct' but also from other violations of the marriage obligation, or, that his treatment must be marked by what is sometimes called conjugal kindness, and that upon his subsequent ill treatment of the wife, though not amounting of itself to a full ground for divorce, she might deem the original offense revived and dissolve the marriage relation.
Assuming, without deciding, that this position is correct, the further essential condition — the observance of the marriage obligations by the wife, necessarily implied — must also exist in order for her to take advantage of the husband’s derelictions. So in one sense or another it all comes back to the question of the rights of the parties in view of the situation presented by the evidence of their own behavior.
Even if the parties had been found to be in equal wrong, the court might have decreed a divorce, for discretion to refuse implies discretion to grant. True, in Burke v. Burke, 44 Kan. 307, 24 Pac. 466, it-was held that a husband guilty of adultery could not obtain a divorce from a wife guilty of the same offense, and in the Day and Bovaird cases it was said that divorce is a remedy for the innocent and injured. But the legislature has vested in the.district court discretion to refuse a divorce when it appears that the parties are in equal wrong. Were it the imperative duty thus to deny, there could be no discretion. The converse and necessary concomitant of discretion to refuse is discretion to grant. This statute is not mentioned in the Burke decision, and in so far as its effect is to mitigate or weaken the discretionary power expressly and impliedly vested by section 668 of the civil code that opinion is overruled.
“The action of the court in denying relief ex mero motu is, in the absence of a statutory requirement, a matter of 'discretion, but in the same instances the statutes provide that where it appears that the plaintiff has been guilty of adultery a divorce shall not be decreed, thereby making it an imperative duty of the court to do that which it had ample power in its discretion to do.” (9. R. C. L. 392, § 185.)
The ecclesiastical law of England was not adopted as a part of our common law, and the jurisdiction over divorce is derived from statutory or constitutional provisions. Courts of equity have no inherent jurisdiction in the matter. (9 R. C. L. 396, § 190.) By so much the more, therefore, must full force and effect be given to the power conferred by section 668 of the civil code. In discussing the peremptory and discretionary provisions of the English act establishing the divorce court, Bishop says:
“If the complaining party has been guilty of adultery, even though committed after suit brought, or after a decree nisi dissolving the marriage, but before it is made absolute, the court will not, in general, grant the divorce. Yet where there is some special fact, taking the particular case out of the reason of the general rule, and sufficiently calling for clemency, it will act notwithstanding the recriminatory plea.” (2 Bishop on Marriage and Divorce, 6th ed., § 82.)
As a general rule, one guilty of adultery has no standing in court to demand a divorce from the spouse who is also guilty of this or some other marital offense amounting to a ground for divorce, and generally the courts do not and will not decree a divorce under such circumstances. But when discretion is expressly given the court, when the parties appear to be in equal wrong, to deny a divorce, such discretion necessarily implies and imports discretion to grant, and only for abuse of such discretion can the complaining party be heard.
Hence, had the trial court been convinced of the plaintiff’s recent adultery, the power to decree the plaintiff a divorce on account of the defendant’s misconduct would have still' existed. Not having been so convinced, and having expressly found that the proof was insufficient to break down the condonement of the former adultery, there can be no question of the jurisdiction to decree a divorce to the plaintiff.,
The case was taken under advisement from November 28, 1916, to February 8, 1917. The motion for a new trial filed February 9 was denied April 9, thus indicating that the trial court was still satisfied with the determination reached.
The usual rule, that verdicts or findings based on conflicting evidence will not be disturbed, sufficiently applies to preclude overturning the result reached in this case.
The decree is affirmed.
Johnston, C. J., dissents. | [
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The opinion of the court was delivered by
Mason, J.:
L. F. Schuhmacher sued J. C. Lebeck, asking-the specific performance of a contract which he alleged existed for the sale to him by the defendant of a quarter section of land. A demurrer to his petition was sustained, and he appeals.
The facts as set out in the pleadings were: The plaintiff wrote to the défendant inquiring the lowest cash price for which he would sell the land. An answer was received saying:
“You know all about my land locations and all so $2,500.00 $1,000.00 down & the rest $1,500.00 at 6 percent for 5 years if the party wants it that way you make your commission from the buyer. I have listed my place with other real estate men all with the same terms. Cash in hand for $2,000.00.”
A few weeks later the plaintiff sent the defendant a telegram reading:
“Have sold your quarter for $2,000.00 cash net to you. Letter will follow.”
Two days later he received a letter from the defendant written five days before, directing him to take the land off his list, as it was priced too low. The plaintiff made a demand for the conveyance of the land, which was refused.
The first letter of the plaintiff was not an offer to sell the land to the defendant for $2,000. It merely amounted to a “listing” of the land with the plaintiff as a real-estate agent; that is, it made the plaintiff the agent of the defendant for the purpose of finding a purchaser ready, willing, and able to buy the land for the price and on the terms stated. This is manifest from the language used; and that the plaintiff so understood it is evident from the fact that his. telegram did not purport to be an acceptance on his part of an offer made to him, but a report of the negotiation of a sale to some one else.
The plaintiff contends that the letter amounted to an offer to the public at large, which would result in a contract whenever any one accepted it. We do not regard it as open to this interpretation. The plaintiff was given no authority to bind the defendant to sell the land to any one. If he had produced a buyer, say at $2,100 cash, the defendant could doubtless have been required to pay him a commission of $100 (Culbertson v. Sheridan, 93 Kan. 268, 144 Pac. 268), but could not have been compelled to part with the property. (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; 17 L. R. A., n. s., 210.) As the plaintiff could not by any act of his commit the defendant to a sale to some one else, he could not, by representing that he had attempted to do so, create a condition under which he could compel a conveyance to himself.
The plaintiff concedes the general rule to be that an agent to sell cannot buy for himself (20 L. R. A., n. s., 1158; 9 C. J. 538, 539) ; but he argues that the purpose of the rule is to protect the vendor from imposition, and, inasmuch as here the defendant was interested only in receiving the amount he had named, no such imposition was possible, and the rule does not apply. He cites Johnson v. Furnish, 29 Kan. 523, as sustaining this theory. That case merely holds, however, that it is no imposition upon a vendor who haá become obligated to sell land to one person to be asked to execute the deed to a grantee designated by the buyer instead of to the buyer himself.
It may be doubted whether in the present case the defend ant’s letter resulted in the employment of the plaintiff to find a purchaser of the property at any sum over $2,000 in cash, he to have the excess as his commission. The proper interpretation may be that the selling price contemplated was $2,000 and enough more to constitute a reasonable or customary commission. But, assuming that his commission was measured by the excess, whatever it might be, we hold that he could base no claim upon a sale attempted to be made to himself without advising the defendant that he was the purchaser. A sale made by an agent to himself is invalid, notwithstanding there may have been no actual fraud or unfairness on his part and no injury to the purchaser. (2 Ene. L. & P. 1062, 1063; 9 C. J. 539; Note, 80 Am. St. Rep. 560-562.) Inasmuch.as the defendant had a legal right to accept or reject any buyer produced by the plaintiff (being absolutely liable however for the commission), he was entitled to know all the facts' concerning the transaction, including the price, before deciding upon his course in that regard, and a representation by the agent that the sale was to be made to a third person, when in fact he himself was the buyer, was capable of misleading the principal to his prejudice.
The following text may seem open to a construction militating against this view:
“The mere fact that a broker is authorized to purchase or sell a particular piece of property at a specified price, does not work an exception to the rule, for even under such circumstances a broker is expected to make an honest endeavor to obtain the most advantageous terms possible for his employer. A distinction is drawn, however, between such a case and an employment by which the broker is to receive as his compensation all that he can secure above a fixed price net to the vendor, there being nothing in an agency of the latter character to cause the broker to refrain from himself purchasing at the price set by his employer and subsequently selling at an advance to a third person, for by the terms of his employment he would be entitled to süch advance even if the sale had been made direct.” (4 E. C. L. 277.)
In the case upon which the second sentence of this quotation is based (Merriam v. Johnson, 86 Minn. 61), the owner of a tract of land sued his agent, to whom he had made a net price, for the profit he had obtained by buying it himself and at once reselling it.' A verdict was directed for the plaintiff. The ruling was reversed on the ground that “the trial court should have submitted the question of fact to the jury whether the contract was as appellant claimed, namely, that he should have the privilege of selling the land at any price above $10 per acre, in any way he chose, even to himself.” (p. 651) The supreme court added:
“In view of a new trial, we have referred to the correspondence in detail, since it is upon that appellant relies, and we unhesitatingly hold that, if those letters constituted the only communication between the parties heretd, they conclusively prove that appellant employed respondent to sell the land for him at the best price obtainable by him, with his experience and ability as a real-estate agent; that his compensation for such services was to be a reasonable commission to be paid by the purchaser; that appellant deeded his property to Cousins upon the supposition that he was the purchaser in fact, not knowing that respondent was buying the land himself, and even before so doing had sold it at an advance of $6 an acre.” (p. 66.)
The first headnote in the official report of the case reads:
“A real estate agent, who induces the owner to fix a .net price upon certain property, upon the supposition that a sale is to be made to a third party, cannot himself purchase the property and by such transaction, in any event, realize a greater profit than a reasonable commission in addition to the net priee.” (syl. ¶ 1.)
The following cases, while not passing directly upon the exact question now under consideration, tend to support the decision we have announced. (O’Meara v. Lawrence, 159 Iowa, 448; Payne v. Beard, 247 Fed. 247; Foss Investment Co. v. Ater, 49 Wash. 446.)
The judgment is affirmed. | [
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Per Curiam:
A rehearing was granted to enable Fitzpatrick to urge his claim that, notwithstanding the erroneous theory upon which the court below decided the case, he is entitled to recover on the finding of fact as to oral representations. The trial court, however, made a specific finding that Fitzpatrick re-relied upon the representations in the deed as to the size of the lots, and there was no finding that he relied upon any oral representations.
Oral representations having been neither pleaded nor found to have been relied upon, it is held that Fitzpatrick is not entitled to recover, and the former judgment of reversal is adhered to. | [
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The opinion of the court was delivered by
Johnston, C. J.;
This was an action to recover damages for the negligent destruction of a building. A judgment in favor of the plaintiff was recovered, from which the defendant appeals.
J. L. Kennedy, the plaintiff, owned a residence in Oakland estimated to be worth $2,000, which had been insured for $1,000, and he only asked judgment for $1,000. The defendant company had been supplying gas for the residence during its occupancy by a tenant, who had just moved out of the building, and when he did so notice was given the defendant of the vacancy, and it was asked to come and cut off the gas. In pursuance of the notice, an agent of the defendant obtained the key and entered the building, when he read the meter, and undertook to cut off the gas, but negligently left it open so far as to allow gas to escape. A neighbor who was present when the agent was in the building called his attention to the fact that gas seemed to be escaping, and in order to test it the agent touched a match to the gas at the end of a pipe that had been disconnected from a stove. The gas was ignited and burning, but the agent stated that there was no more gas escaping than there was in the pipe above the cut-off. He left the gas burning, and shortly after-wards the building was consumed by fire.
The principal question on this appeal is whether or not the ■plaintiff established the extent of the loss by competent and sufficient proof. The question was raised by an objection to evidence and an instruction of the court as to the character of evidence by which plaintiff’s damages might be measured. There was sufficient evidence as to the origin of the fire, and that it resulted from the negligence of the defendant, to uphold the verdict. Testimony was offered as to the size, plan, material, finish and condition of the building burned. There was-also testimony in regard to the cost of constructing a house of the kind burned, and also as to the deterioration of the building from the time it was erected until it was destroyed. The house had been built of white pine, which witnesses said was better and more enduring than,the pine now obtainable, but that white pine was no longer on the market, and hence their opinions were based on merchantable pine which was now on the market at this place. Defendant contends that the evidence mentioned was not receivable in the absence of proof of the original cost of the building.
Generally speaking, it may be said that one whose property is negligently destroyed by another is entitled to recover the actual loss sustained. There being no malice nor intentional wrongdoing, compensation is the proper measure, and hence the defendant was liable for the reasonable value of the building burned at the time and place of its destruction. There is no ■ universal test for determining the value of property injured or destroyed, and the mode and amount of proof must be adapted to the facts of each’ case. (4 Sutherland on Damages, 3d ed., §1015). It is frequently said that the market value of the property described at the time and place of the fire is a proper measure, and this is true if the property in fact has a market-value. If there be no market value, then another criterion of value must be found, and the best evidence which can be obtained must be produced to show the elements which enter into the real value. (A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354; K. C. & S. W. Rld. Co. v. Ehret, 41 Kan. 22, 20 Pac. 538.) All know that there is no market value for property like that for which a recovery is sought, and therefore it was proper to invoke the aid of all the facts bearing upon the actual value at the time of the fire.. Defendant insists that the exclusive method of establishing the damage was proof of the cost of construction, with a proper deduction therefrom for deterioration. The cost of a structure is sometimes a proper element for consideration in determining the amount of damages, but it can have little force where, as here, the building was erected more than twenty-six years ago. The cost of building material and labor changes, and if the cost of material and labor twenty-six years ago was twice as much as at the present time, the original cost less deterioration would be a very imperfect criterion for measuring the present value. The cost of replacing the building, making a proper deduction for its age, utility, use, and condition, is a better measure of what the property was fairly and reasonably worth at the time it was destroyed. Some authorities have approved the rule, insisted on by the defendant, that the cost of the property is an essential element of proof, but even these authorities recognize that this rule is not always applicable, and that other elements are sufficient to establish the loss. (J. T. & K. W. Ry. Co. v. P. L. T. & M. Co., 27 Fla. 1; Wall v. Platt, 169 Mass. 398.)
Our own court has adopted and applied a different rule. In Insurance Co. v. Payne, 57 Kan. 291, 46 Pac. 315, where the value of a building that had been burned was in question, it was said:
“One method of arriving at such loss is by estimating the cost replacing the building less any depreciation from use, age, or otherwise; and the other is by evidence of the value of the building, at the time of its destruction, less the value, if any, of the ruins.” (p. 301.)
In the same case an exception was taken' to the testimony of the owner of the building giving the cost of it, and in holding the testimony improper the court said:
“Evidence of the -cost of a building, however, can hardly be said to be evidence of its value at a particular time. Sometimes, from the necessities of the case, it may be proper to inquire as to the cost of an article as tending to establish its value; but there is no such necessity here, and Payne ought not to have been permitted to testify that the house cost about $25,000.” (p. 301.)
The defendant has no cause to complain of the rule for measuring the damage laid down by the trial court.
An objection is made that the court in its instructions did hot present defendant’s theory of the case as fully as that of the plaintiff, but we think that the issues were sufficiéntly presented, and that no prejudice could have resulted to the defendant from the instructions. We find no error in the record, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff brought this action, consisting of twenty-six causes of action, under section 8423 of the General Statutes of 1915, to recover the $5 a day damages given by that statute for delay in furnishing cars ordered by the plaintiff from the defendant. Judgment was rendered in favor of the plaintiff for $2,035, and the defendant appeals.
The defendant argues that the court erred in excluding evidence to show that the cars were ordered for shipments in interstate commerce; that the court refused to instruct the jury concerning interstate shipments; that the plaintiff was not entitled to exemplary damages; and that the plaintiff elected to order cars without making a deposit. These matters will be discussed in the order stated.
The plaintiff was engaged in operating a grain elevator at Gorham, Kan., and was buying grain for shipment to points within and without the state. It gave to the defendant written orders for cars in which to ship grain. These orders were, in form, as follows:
“Application for Cars Í239.’
“Gorham, Kansas, 12-10-1915.
“To the Union Pacific Railway Company, and its agents in charge of transportation at Gorham, Kansas.
“We hereby apply for one capacity — amount loaded —• empty grain cars which we desire to load with grain for transportation to Kansas City or line, said cars to be delivered on the 10th day of December, 1915, at our elevator. “The Farmers Grain & M. Co., Shipper.
“By R. C. Lawrence, Mgr. ‘
“The Union Pacific Railway Company hereby acknowledges the above application for cars. By W. T. Vaughn, its Agent.”
Different orders bore different dates, and the orders were numbered consecutively. When a shipment was made, the bill of lading was made out by the plaintiff, and a notation was made thereon showing that the shipment was made under a certain numbered car order. The bill of lading was then signed by the defendant’s agent. There was delay in furnishing cars under the orders.
The defendant, by cross-examination of the plaintiff’s witnesses, and on the introduction of its evidence in defense, sought to show that the orders were given for cars to be used in shipments in interstate commerce, but the evidence was excluded. The defendant had pleaded that the orders had been given for cars to be used in interstate transportation. The plaintiff contends that the notation made on the bill of lading - w.as a part of the contract, and that it could not be contradicted, varied, nor altered by parol evidence. The plaintiff’s contention is not good. The notation was a recital of a past act, and it might be true or not. It was evidence of that fact, but it was-not conclusive evidence. It was no part of the contract of shipment. It was propel* to introduce evidence to show that the orders were made for cars to be used in interstate transportation. (Rose and others v. Madden, 1 Kan. 445; 4 R. C. L. 12; 10 R. C. L. 1018; 17 Cyc. 708; 1 Greenleaf on Evidence, 16th ed., § 285.) The evidence should have been admitted on cross-examination, where such cross-examination was proper, and should have been admitted when offered by the defendant to establish its defense. But the error is not available to the defendant, for the reason that there is nothing to show that the excluded evidence was produced on the hearing of a motion for a new trial. (Civ. Code, § 307; Muenzenmayer v. Hay, 98 Kan. 538, 159 Pac. 1; McAdow v. Railway Co., 100 Kan. 309, 164 Pac. 177.)
The defendant requested the. court to instruct the jury as follows:
“A number of the applications for cars introduced in evidence by plaintiff are applications for cars to load with grain for transportation to ‘Kansas City or line point.’ I instruct you that if you find and believe from the evidence that the defendant company understood and believed in good faith that such applications were applications for cars to be loaded with grain for transportation to Kansas City, Missouri, then the railroad company had a right to treat such application as an application for a car to be used in interstate commerce,' and there can be no liability in this action tinder the Kansas law for failing to furnish a ear in compliance with such application.”
The law of this state does not control if the cars were ordered for shipments in interstate commerce. (Chi., R. I. &c. Ry. v. Hardwick Elevator Co., 226 U. S. 426.)
In sixteen of the plaintiff’s causes of action, the orders were for shipments to be made to “Kansas City or line.” What was meant by these orders ? There are two Kansas Citys; one in this state, and one in Missouri. Which one of these cities was meant by these orders ? If they were for cars for shipments to Kansas City, Mo., the plaintiff cannot recover on the causes of action based thereon. The plaintiff’s testimony showed that it sometimes shipped grain to Kansas City, Mo. The orders, with their ambiguity and the plaintiff’s testimony, were sufficient to require that the question,of interstate commerce be submitted to the jury. The error committed in refusing to instruct the jury concerning the interstate-commerce features of the action was prejudicial.
The defendant argues that the plaintiff is not entitled to exemplary damages for the reason that no actual damages were alleged or proved. The proposition presented is one of statutory construction. The statute involved is section 8423 of the General Statutes of 1915, which, in part, read’s:
“When the cars are applied for under the provisions of this chapter, if they are not furnished, the railway company so failing to furnish them shall pay to the party or parties so applying for them the sum of five dollars per day for each car failed to be furnished as exemplary damages, to be recovered in any court of competent jurisdiction, and all actual damages that such applicant may sustain for each car failed to be furnished:”
The statute names the damages as exemplary damages. These damages are not such as have been termed exemplary damages in actions where it has been held that such damages cannot be recovered unless actual damages are established. The damages given are statutory, and are fixed as a matter of public policy. The legislature had power' to fix these damages for a failure on the part of a carrier to comply with the statute. (Perkins v. Matteson, 40 Kan. 165, 19 Pac. 633; Joyce v. Means, 41 Kan. 234, 20 Pac. 853; Grain and Lumber Co. v. Railway Co., 85 Kan. 281, 116 Pac. 906; Vosburg v. Railway Co., 89 Kan. 114, 130 Pac. 667.)
The defendant argues that the plaintiff elected to order cars without making a deposit as required by section 8424 of the General Statutes of 1915. That statute, in part, reads:
“Such applicant shall, at the time of applying for such car or cars, if specifically required so to do, deposit with the agent of the company one-fourth of the freight charges for use of such car or cars; otherwise the company shall not he excused for not furnishing cars on account of failure to make tender on the part of any shipper. . . . Provided, That if any applicant shall elect to order cars without a deposit, as provided in this section, neither party shall be liable for the penalties prescribed in this and the preceding section.”
The defendant did not request that a deposit be made. The plaintiff made no deposit, although it tendered money a few times. Did the plaintiff elect to order cars without making a deposit? The answer to that question is not one of law, but one of fact, and must be made by triers of fact. Again, the error is of no avail to the defendant, because it did not request any instruction covering the proposition.
All the shipments involved were made with a milling-in-transit privilege. This privilege is one by which a shipper from the milling-in-transit point gets an advantage in freight rates. The evidence tended to show that the plaintiff’s shipments were made to a milling point; that the plaintiff’s connection with the shipments ceased at that point; that the privilege was given to the customer, or .the shipper from the milling point, and not to the plaintiff; that it received no direct benefit from that privilege; and that the plaintiff did not know where any of the shipments finally went. A shipment from a point in Kansas to a milling point in Kansas, where the connection of the shipper with the shipment absolutely ceases, is not any part of interstate commerce, although the consignee may take advantage of the milling-in-transit privilege. (Larabee v. Railway Co., 74 Kan. 808, 88 Pac. 72; Coe v. Errol, 116 U. S. 517; Gulf, Colorado & Santa Fe Ry. Co. v. Texas, 204 U. S. 403; Chi., Mil. & St. P. Ry. v. Iowa, 233 U. S. 334; Kempner v. M. K. & T. Ry. Co., 37 I. C. C. Rep. 396; Illinois Grain to Chicago, 40 I. C. C. Rep. 124.)
The judgment is reversed, and a new trial is ordered. | [
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The opinion of the court was delivered by
BURCH, J. f
The district court sustained a demurrer to the plaintiff’s evidence in support of a claim against the estate of a deceased person, on the ground the claim was barred by the statute of limitations. The plaintiff appeals.
Elizabeth Kling died intestate in California on June 15, 1913. She left property in Sherman county, Kansas, and on October 18, 1916, the probate court of that county appointed an administrator of'her estate. In February following, the plaintiff presented a claim for board, care and lodging of the deceased in her lifetime, for doctors’ bills incurred in her last illness, and for her funeral expenses. The probate court disallowed the claim, and an appeal was taken to the district court. At the trial in the district court the evidence consisted of the probate-court files and certain depositions taken in California, one of them being a deposition proving applicability of the four-year statute of limitations of that state to a claim of this character. The plaintiff is a resident of the state of California. His contention was that Elizabeth Kling was a resident of California at the time of her death, that the cause of action arose in California between nonresidents of this state, and that the four-year statute of limitations of California governed the controversy, instead of the three-year statute of limitation of this state, because of the provisions of section 21 of the code of civil procedure, which reads as follows:
“Where the cause of action has arisen in another state or country, between nonresidents of this state, and by the laws of the state or country where the cause of action arose an action cannot be maintained thereon by reason of lapse of time, no action can be maintained thereon in this state.” (Gen. Stat. 1915, § 6911.)
The adverse ruling of the district court may have been rested on matter of fact or on matter of law.
The administrator does not appear to have been represented at the taking of the depositions in California. Much of the evidence taken was subject to objection as incompetent, irrelevant, and immaterial. Personal transactions with the deceased were attempted to be proved, and witnesses stated inadmissible opinions and conclusions respecting material facts. In due time the administrator filed a motion to suppress the objectionable testimony. The plaintiff makes no mention of this motion in his abstract, does not show what became of it, and filed no transcript showing the proceedings at the trial with reference to the admission and rejection of evidence. Under these circumstances it should be presumed, in support of the judgment, that the district court refused to admit the improper evidence. If this were done, there was no substantial evidence that the deceased, who formerly resided in Kansas, became a resident of California, and the California statute of limitations cut no figure in the case.
Leaving the question of fact at one side, the California statute cut no figure in the case anyhow. The Kansas statute of limitations fixes the length of time the courts of Kansas are open to litigants. Section 21 of the civil code is a part of the statute. It imports into the law of this- state, under certain circumstances, the limitations of other states which have barred action there: But the converse is not true, and the statute does not extend generally the time within which suit may be brought here on a cause of action arising between nonresidents which has not become barred by the more liberal statute of the foreign state. In the latter situation the time within which the action may be brought here must be determined by the law of the forum, taking into- account presence or absence of the person to be sued, or other conditioning facts. This was made clear by the decision in the case of Perry v. Robertson, 96 Kan. 96, 98, 150 Pac. 223.
Applying what has been said, the statute of this state did not start to run against the plaintiff’s claim while the deceased was out of the state and was residing in California. When she died, her estate here was subject to appropriation for the payment of her debts. After an interval of time which will be considered presently, the situation- became the same as if the deceased were alive and had returned to this state. The claims of creditors became enforceable here, and the statute of limitations then commenced to run against them..
The death of a debtor operates to suspend the statute of limitations, but not indefinitely. The statute is one of repose, and a creditor must act with diligence tó enforce his claim, .or he will lose it. If those who have the first right fail to take out letters of administration, the creditor may bring into existence a representative of the estate. He is obliged to wait only fifty days (Executors and Administrators Act, § 12, Gen. Stat. 1915, § 4496), and he must then act within the proper period of the statute of limitations — in this case three years — or be barred. (Bauserman v. Charlotte, 46 Kan. 480, 26 Pac. 1051; Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574.) It is not strictly accurate to say that the death of the debtor in this case operated to suspend the statute of this state, because she had not been here, and the statute had not commenced to run; but her estate was here, and could be moved against after her death, as indicated. The plaintiff made no effort to procure administration, and no administrator was appointed until three years and 125 days had elapsed following the debtor’s demise.
The conclusion is, the demurrer to the evidence was properly sustained, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a conviction under the persistent-violator act by reason of a violation of the bone-dry statute.
Counsel agree that this is the sole question presented: “Is a violation of section 1 of chapter 215 of the Laws of 1917, by merely having intoxicating liquor in one’s possession, a second offense under section 5541 of the General Statutes of 1915, making the defendant a persistent violator?” This depends upon the intention of the legislature ascertainable by the language used in the various acts touching the subject of intoxicating liquor.
The prohibition amendment was submitted in 1879 and adopted at the general election of 1880. The legislature of 1881 enacted chapter 128 entitled, “An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.” Twenty-two sections prescribed ways in which liquor might be sold lawfully, including the scheme of obtaining a druggist’s permit from’ the probate judge, the matter of physician’s prescriptions, the written application for a prescription, the giving of bond for those who sought to manufacture liquor, the application to purchase from'such person and the restrictions concerning sales by him; certain property was made liable for fines and costs, and it was made unlawful to get intoxicated or be found, in a state of intoxication. Section 23 of the act repealed chapter 35 of the General Statutes of 1868, which was a comprehensive act “to restrain dramshops and taverns, to regulate the sale of intoxicating liquors.” In 1885, chapter 149, amendatory of and supplemental to the statute of 1881, was enacted, making more drastic several sections of the former act and making the county attorney a sort of examining magistrate to subpcena witnesses and hold inquisitions precedent and preparatory to beginning prosecutions. Each of these acts made the place where liquors are sold unlawfully a common nuisance. The latter act added a section making it an offense to take orders for intoxicating liquors in this ptate, unless taken from one authorized to sell. A section was added making it a crime to sell to any person whose relatives had notified the seller of his use of intoxicating liquors. It was also made unlawful for common carriers to knowingly carry or deliver intoxicating liquors to be sold in violation of the act, and any citizen was authorized to employ an attorney to assist the county attorney, and the person so employed was entitled to recognition by the county attorney as associate counsel.
In 1887, chapter 164 was enacted, prohibiting the use of intoxicating liquors at any voting place, and also chapter 165, which was amendatory of the act of 1885, and made a number of the former provisions more specific and drastic.
In 1891 an act was passed (ch. 131) prohibiting the sale of intoxicating liquors to inmates of national or state soldiers’ homes. In 1901, chapter 232 was enacted, relating to the sale of intoxicating liquors and the supervision of the places where sold, and providing for the forfeiture of goods seized and for the punishment of landlords knowingly leasing building for use as a common nuisance; also chapter 233, amending one section of the act of ■ 1897 concerning the inquisitions held by county attorneys.
In 1903, chapter 338 was passed, providing for the bringing of an injunction suit by the prosecuting officer or a private citizen in case of the maintenance of a nuisance, and the title made the act supplemental to chapter 232 of the Laws of 1901. Also in 1903, chapter 339, amending one section of the act of 1887 touching sales by those having permits, was passed.
The legislature of 1911 enacted chapter 178, amending one section of the amendatory act of 1909 (ch. 164), and permitting certain wholesale druggists to sell alcohol for the excepted purposes, also chapter 165, the persistent-violator act, providing that any person having once been duly convicted “of the violations of the prohibitory liquor law and who shall thereafter directly or indirectly violate the provisions of the prohibitory liquor law shall be considered a persistent violator of the prohibitory liquor law,” etc. This language seems to have been used premeditatedly, for in 1906 this court had decided, in The State v. Storm, 74 Kan. 859, 86 Pac. 145, that—
“The act of 1901 was designed to take its place as a part of the entire scheme of liquor legislation of the state, and all laws upon the subject are to be construed together and harmonized as far as possible.” (p. 860.)
In 1907, in The State v. Jepson, 76 Kan. 644, 92 Pac. 600, it was decided that an assistant attorney-general had authority to aidi the attorney-general in the enforcement of all the provisions of the prohibitory law, regardless of when they were enacted. It was there said:
“The prohibitory law as it now stands is the result of more than twenty-five years’ growth. Amendments and changes have been made in its provisions as seemed necessary to overcome the difficulties met with in its enforcement and to make it more efficient and effective. These various provisions taken together, constitute the present prohibitory law of this state, and are to be considered and construed as if the entire enactment had occurred at the same time.” (p. 648.)
Section 3 of the persistent-violator act provides that—
“This act shall be construed only as1 supplemental to existing legislation.”
The legislature of 1915, by chapter 232, amended and repealed section 1 of the persistent-violator act, leaving the remainder of the statute unchanged. Then came the bone-dry act of 1917, chapter 215, prohibiting the use or possession or shipment of intoxicating liquor, except under certain specified circumstances, section 8 being as follows:
“This act shall be considered as supplemental to laws now in force relating’ to intoxicating liquors.”
In The State v. Shiffler, 93 Kan. 618, 144 Pac. 845, it was said of this enactment that it does not make each violation subsequent to a conviction a separate felony, but merely creates the status of “persistent violator” and affixes a single! penalty for occupying that status; that the individual who backslides after receiving the correction of a conviction is treated as a kind of common nuisance. In The State v. Briggs, 94 Kan. 92, 145 Pac. 866, holding that the sale of liquor or the maintenance of a nuisance by one who had previously violated the prohibitory law constituted such person a persistent violator, it was said:
“As quite plainly indicated by the language of this section, when one is found guilty of a violation of the prohibitory law and at the same time is found to have been previously convicted of a violation thereof the effect is to place the defendant in the status of a persistent violator, or in other words to classify him as one who1 has been judicially determined to possess a disposition to violate the prohibitory law persistently, for which persistent violation he is to be punished.” (p. 94.)
The language of section 3 of the act of 1911, expressly making that act supplemental to existing legislation, and that of section 8 of the act of 1917, commanding that it shall be construed as supplemental to the laws then in force relating to intoxicating liquors, together with the construction based upon' similar legislation by the decisions referred to, render it conclusive that a violation of the bone-dry act is.a violation of the “provisions of the prohibitory liquor law” within the meaning of the act of 1911 as amended by the act of 1915.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
John Nowak filed in the district court of Shawnee county a petition on two causes of action alleged to have arisen in Nemaha county, where he resides, against the Bankers Life Insurance Company, a Nebraska corporation, which had obtained permission to do business in this state, consenting that process directed against it might be served upon the superintendent of insurance in accordance with the statute. (Gen. Stat. 1915, § 5213.) Summons was issued and served upon that officer. The defendant appeared specially and attacked the validity of the service. The court held it to be void, and the plaintiff appeals:
The statute cited provides that “actions against any such insurance company may be brought in any county where the cause of action arose or in 'which the plaintiff may reside.” The plaintiff, however, contends that this language is merely permissive and not restrictive. The defendant concedes that “the various methods provided by statute for obtaining service of process on foreign corporations are cumulative.” (Betterment Co. v. Reeves, 73 Kan. 107, syl. ¶ 3, 84 Pac. 560.) The plaintiff invokes the provision of the code that a transitory action against a corporation “may be brought in any county . . . where said defendant may be found” (§53), and contends that as the defendant has consented that summons against it may be served by delivering a copy to the superintendent of insurance, it may be summoned in Shawnee county, and therefore, within the meaning of the statutory language last quoted, “may be found” there. The difficulty with this reasoning is that the defendant has not given Sits consent that summons may be served upon it through the superintendent of insurance in all cases, but only in those referred to in the statute, the language of which is that such a company “shall file in the insurance department its written consent, irrevocable, that actions may be commenced against such company in the proper court in any county in this state in which the cause of action shall arise or in which the plaintiff may reside by the service of process on the superintendent of insurance of this state.” (Gen. Stat. 1915, § 5213.) When this method of service is re lied upon, the action, by the terms of the statute, must be brought in the county where the cause arose or where the plaintiff resides. Therefore, the circumstance that there is at the seat of government a public officer upon whom the summons, in an action against it, begun' in the proper court, may be served, does not create a condition under which it may fairly be said that the defendant may be “found” in Shawnee county.
The judgment is .affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
Petitioners Terry L. Vinson, John Edwards, Walter Myrick, Jose Rojas, and Peter Spencer, all inmates at the Lansing Correctional Facility, appeal from the denial of their habeas corpus petitions. They contend that Internal Management Policies and Procedures (IMPP) 11-101 issued by the Secretary of Corrections January 1, 1996, as applied in their respective cases, violates their right to due process and constitutes an ex post facto application of law under the United States Constitution. They also contend that IMPP 11-101 is void for lack of publication under K.S.A. 77-415 et seq. We affirm.
IMPP 11-101 is an internal management policy and procedure concerning offender privileges and incentives. According to the stated policy in IMPP 11-101, “[t]he Kansas Department of Corrections shall implement a comprehensive system of eamable offender privileges which will provide an effective means of managing the offender population and reinforcing constructive behavioral changes in offenders.” Under IMPP 11-101, inmates can earn certain privileges, including television ownership, handicrafts, participation in organizations, use of outside funds, canteen expenditures, property, incentive pay, and visitation. There are several levels of privileges. At Level I, the level at which petitioners were placed, the inmate may not have a personal television but has access to general television. Inmates at Level I are limited in activities, have limited expenditures at the canteen up to $20, may earn up to 600 per day in incentive pay, and may receive visitors from immediate family. At Level III, the highest level for inmates, the inmate may purchase a personal television, spend up to $140 in the canteen on a more extensive list of items, and may have any approved visitor.
In order to move from level to level, the inmate must remain free of Class I or Class II disciplinary reports and demonstrate a willingness to participate in recommended programs and/or work assignments for a full review cycle of a minimum of 120 days. An inmate may lose levels for disciplinary offenses and is automatically reduced to Level I in the event the inmate is terminated from a work program for cause, refuses to participate in a recommended program, commits felony offenses, or has serious disciplinary offenses.
When an inmate loses levels, property items which the inmate is no longer authorized to have are removed from the facility. The first time an inmate is moved from Level II or III to Level I, unauthorized items purchased by the inmate at the canteen such as televisions, sound equipment, and large appliances are stored for the inmate at the facility and returned to the inmate when the inmate advances back to a level at which they are authorized. However, if the inmate is returned to Level I a second time, or fails to advance to Level II at the earliest possible time, these items are removed from the facility.
When an item is removed from the facility, the inmate has the choice of having the item mailed to an address of the inmate’s choosing at the inmate’s expense or, with the approval of the warden at the expense of the facility, donating the item to charity, having the property picked up by an authorized person, or having the property delivered to a local address by the facility upon the approval of the warden. At the time IMPP 11-101 was implemented on January 1,1996, all inmates currently incarcerated were placed at Level III, the highest level available. At this level, the inmate enjoyed the same privileges that existed prior to implementation of IMPP 11-101. Petitioners were reduced to Level I for certain violations of prison rules, hence their appeal.
DUE PROCESS
One of the issues raised by the petitioners is that the application of IMPP 11-101 to their respective cases denies them of due pro cess of law under the Fourteenth Amendment to the United States Constitution. We have resolved this issue adversely to the petitioners in our decision of Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227 (1998). In accordance with the reasoning of that opinion; application of IMPP 11-101 to these petitioners does not implicate the Due Process Clause.
EX POST FACTO
The petitioners also contend that the incentive level system as applied to each of them imposes additional punishment and is an ex post facto application of law which violates the United States Constitution. U.S. Const., art. I, § 9, cl. 3 and § 10, cl. 1 provide that no state shall pass any law which “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867).
Our most recent discussion of ex post facto legislation occurred in Stansbury, where we discussed application of the Ex Post Facto Clause of the United States Constitution in relation to Department of Corrections regulations involving “good time credits.” In that case, we noted that in order for a law to be considered ex post facto, two critical elements must be present: The law must be retrospective, applying to events occurring before its enactment, and it must alter the definition of criminal conduct or increase the penalty by which a crime is punishable. 265 Kan. 404, Syl. ¶ 2. See California Dept. of Corrections v. Morales, 514 U.S. 499, 504, 131 L. Ed. 2d 588, 115 S. Ct. 1597 (Í995); Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). We quoted the United States Supreme Court’s decision in Weaver for the following proposition:
“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.” 450 U.S. at 30-31.
The provisions of IMPP 11-101, as applied to the petitioners in their respective cases, do not increase punishment beyond what was prescribed when the crime was consummated. Depending upon the conduct of the inmate, IMPP 11-101 may affect the conditions upon which the inmate’s sentence is served, but not to the extent that its effect constitutes a significant or atypical departure from the normal rigors of incarceration. See Stansbury, 265 Kan. 404. Therefore, IMPP 11-101 is not “retrospective and more onerous than the law in effect on the date of the offense.” The Department of Corrections has the right as well as the statutory obligation to maintain good government within the Kansas corrections system. To this end, the department may, as it has done in this case, provide for security, privileges, and incentives to accomplish such an end consistent with the policy of the legislature expressed in K.S.A. 75-5201. IMPP 11-101 seeks to accomplish such results. Nothing contained within the IMPP implicates due process, and the provisions apply to all inmates. As such, IMPP 11-101 does not increase the penalty after the offense and does not implicate the Ex Post Facto Clause of the United States Constitution. Internal management of prisons is left to the sound discretion of the Department of Corrections, through the Secretary of Corrections and this court should not interfere where liberty or property interests are not involved. See Sandin v. Conner, 515 U.S. 472, 132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).
PUBLICATION
A final argument advanced by the petitioners is that IMPP 11-101 is invalid because it was not correctly adopted or published in the Kansas Register. The petitioners contend that IMPP 11-101 fits the definition of a rule and regulation within the provisions of K.S.A. 77-415 et seq. and must be adopted in accordance with such provision which requires publication in the Kansas Register. Because IMPP 11-101 was not published, petitioners argue that it was invalid pursuant to K.S.A. 77-425, which states that any regulation not published as required shall be of no force or effect.
K.S.A. 77-415 et seq. require, among other specific acts set forth, publication of a rule and regulation in the Kansas Register before the rule and regulation shall have the force and effect of law in this state. K.S.A. 77-415 (4) defines a rule and regulation
“and words of like effect [to] mean a standard, statement of policy or general order, including amendments or revocations thereof, of general application and having the effect of law, issued or adopted by a state agency to implement or interpret legislation enforced or administered by such state agency or to govern the organization or procedure of such state agency.”
State agency means “any officer, department, ... or institution of this state, except the judicial and legislative branches, which is authorized by law to promulgate rules and regulations concerning the administration, enforcement or interpretation of any law of this state.” K.S.A. 77-415(1).
The Department of Corrections is established by the provisions of K.S.A. 75-5203 and its chief executive officer, the Secretary of Corrections, is appointed by the Governor subject to statutory requirements. Broad powers and duties are conferred by law upon the Secretary of Corrections so that the following purpose of the legislature may be implemented:
“The legislative purpose in enacting this act shall be deemed to be establishment of a policy of treatment of persons convicted of felonies in this state by placing maximum emphasis on rehabilitation of each such person while in the custody of the state or under the jurisdiction of the courts of the state, consistent with the interests and safety of the public, so that a maximum of persons so convicted may be returned to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens. It is the intent of the legislature that judges, the secretary of corrections, his or her agents, subordinates and employees and the Kansas adult authority, its agents, subordinates and employees will construe and apply this act and acts of which it is amendatory or supplemental liberally to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community upon leaving this custody of these state agencies and officers.” K.S.A. 75-5201.
K.S.A. 75-5210 concerns the treatment of inmates and provides for the adoption of rules and regulations for the maintenance of good order and discipline within the corrections system, including the establishment of promotional rewards and punishments. Thus, IMPP 11-101 implements the statutory authorization granted in K.S.A. 75-5210.
However, while it may readily be observed that the Department of Corrections is a state agency defined in K.S.A. 77-415, and that IMPP 11-101 fits the definition of a rule and regulation set forth in K.S.A. 77-415(4), certain rules and regulations are excluded from publishing requirements under the provisions of K.S.A. 77-415(4). These include “any rule and regulation which . . . [r] elates to the internal management or organization of the agency and does not affect private rights or interests].” K.S.A. 77-415(4)(a). Other exclusions most generally include specific state agencies of this State and generally relate to internal operating procedures. See K.S.A. 77-4l5(4)(b) through (r).
IMPP 11-101 relates primarily to privileges and incentives of persons committed to the institutional care of the Secretary of Corrections. As we found in Stansbury, 265 Kan. 404, it affects no liberty or property rights. Therefore, IMPP 11-101 fits within the exception to the publication requirement found in K.S.A. 77-415(4)(a).
However, even if rules and regulations are not subject to the publication requirement of 77-415, under the provisions of 77-415(4)(a), they are still subject to K.S.A. 77-421a, which states that such rules and regulations “shall be adopted in the manner prescribed by K.S.A. 77-421 and amendments thereto after notice has been given and a hearing held in the manner prescribed by K.S.A. 77-421 and amendments thereto.” K.S.A. 77-421 requires, among other things, publication of rules and regulations in the Kansas register.
Once again, however, K.S.A. 77-421a provides for the following exception: “This section shall not apply to orders issued by directors of correctional institutions under K.S.A. 75-5256.” The full import of this exception must be read in pari materia with the provisions of K.S.A. 75-5256, which provides in part:
“(a) The warden of each correctional institution may issue orders subject to the provisions of law and the rules and regulations adopted by the secretary of corrections, as the warden may deem necessary for the government of the correctional institution and the enforcement of discipline therein.
“(b) All rules and regulations or orders for the government of a correctional institution and the enforcement of discipline therein adopted or issued by the secretary of corrections and all orders issued by the warden of the correction institution shall be published and made available to all inmates, other than rules and regulations and orders relating to emergency or security procedures. Every order issued by the warden of a correctional institution shall be effective until rescinded or amended by the warden or until disapproved by the secretaiy.”
K.S.A. 75-5210 provides:
“(f) The secretary shall adopt rules and regulations for the maintenance of good order and discipline in the correctional institutions, including procedures for dealing with violations. Disciplinary rules and regulations may provide a system of punishment including segregation, forfeitures of good time earned, fines, extra work, loss of privileges, restrictions and payment of restitution.. ..
“(g) A copy of the rules and regulations adopted pursuant to subsection (f) shall be provided to each inmate. Other rules and regulations of the secretary which are required to be published pursuant to K.S.A. 77-415 through 77-437, and amendments thereto, shall be made available to inmates by placing a copy in the inmate library at the institution or by some other means providing reasonable accessibility to inmates.”
IMPP 11-101 implements a “comprehensive system of eamable offender privileges which will provide an effective means of managing the offender population and reinforcing constructive behavioral changes in offenders.” The issuance of this IMPP is in accord with the purposes of the legislature set forth in K.S.A. 75-5201 so that consistent with public safety, a “maximum of persons so convicted may be returned to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens.”
IMPP 11-101 constitutes an order issued by the directors of correctional institutions under K.S.A. 75-5256 and is, therefore, exempt from the provisions relating to adoption of rules and regulations contained in K.S.A. 77-421a. K.S.A. 75-5210(g) acknowledges a difference between the IMPP’s issued by the Secretaiy of Corrections, which are required to be disseminated to each inmate, and other rules and regulations of the Secretaiy which are required to be published pursuant to K.S.A. 77-415 et seq. IMPP 11-101 concerns internal management under the provisions of K.S.A. 75- 5256 for the government of the correctional institution, and as such it is simply required to be provided to each inmate. See K.S.A. 75-5210(g).
We note that most rules and regulations adopted by the Secretary of Corrections require compliance with the provisions of K.S.A. 77-415 et seq. However, the regulations in this case deal exclusively with privileges and incentives of those persons in custody of the Department of Corrections. We conclude that while IMPP 11-101 may fit the definition of a rule and regulation, it is exempt from publication under K.S.A. 77-415(4) and K.S.A. 77-421a. The provision in K.S.A. 77-425 that any rule and regulation not filed and published as required by this act shall be of no force or effect does not apply to IMPP 11-101.
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|
The opinion of the court was delivered by
Nuss, J.:
Jennifer Bomhoff sued Nelnet Loan Services, Inc., (Nelnet) for conversion, fraud, breach of contract, and violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., because of Nelnet’s actions regarding her student loan. Specifically, she alleged that Nelnet acted contrary to her written instructions to apply all of a $1,000 prepayment to the loan principal by instead first applying $193.40 to accrued interest, with the balance to principal. The district court granted Nelnet’s motion for summary judgment on all causes of action. Bomhoff appealed, and this court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The sole issue on appeal is whether the district court erred in granting summary judgment to Nelnet. We hold the court did not err, and its judgment is affirmed.
FACTS
The material facts are not in dispute. On June 16,1997, Bomhoff signed a Consolidation Loan Application / Promissory Note (the Note) to consolidate her student loans with Nelnet. The Note included a section titled “Promise to Pay,” which stated:
“13. PROMISE TO PAY: I promise to pay to the order of the lender named below such loan amount as is advanced on my behalf, plus simple interest on the unpaid principal balance at the rate described on the reverse side of this note. I will pay such amount in accordance with the Disclosure Statement and Repayment Schedule which will be furnished to me at the time my present obligations are discharged.”
The Note also contained the following provisions:
“A. GENERAL
“I understand that the lender has applied for guarantee coverage of this loan through the Nebraska Student Loan Program, Inc. and because of this, the loan is subject to, and the terms of this Promissory Note will be interpreted, in accordance with Title TV, Part B of the Higher Education Act of1965, as amended, (the “Act"), federal regulation adopted under the Act, and the Bules and Regulations ofNSLP. To the extent not governed by federal law, this Note shall be governed by the laws of the jurisdiction in which the lender is located.
“B. DISCLOSURE STATEMENT AND REPAYMENT SCHEDULE
“I understand that I will receive a Disclosure Statement and Repayment Schedule which will identify my actual Loan Amount (as determined by the lender), interest rate, fee amounts, due dates and itemization of loans consolidated. This will be provided to me at the time my present creditors have discharged my obligations on the loans selected for consolidation. If after receiving my Disclosure Statement and Repayment Schedule I have any questions concerning the information contained in this Note, I will contact the lender. If the information on the Disclosure Statement conflicts with the Application/Promissoiy Note, the Disclosure Statement and Repayment Schedule shall be controlling.
....
“G. PREPAYMENT
“At my option and without penalty, I may prepay at any time all or any part of the unpaid principal balance of the Note. In the event of prepayment, I will be entitled to a refund of any unearned interest which I have paid. The amoupt of any such rebate will be computed by tire same method by which interest payments were computed.” (Emphasis added.)
Two months later on August 19, 1997, Bomhoff was provided a Disclosure Statement and Repayment Schedule. The original principal amount of the loan was $19,902.38; the annual interest rate was 8%; and the first payment was due September 24, 1997.
For the approximate 2-year period from September 24, 1997, until December 24, 1999, Bomhoff made the equivalent of only nine scheduled monthly payments and was granted three separate periods of forbearance covering the remaining time. During the forbearance periods, interest accrued on the principal, but no payments were due. At the end of each forbearance period, the accrued but unpaid interest was capitalized, i.e., added to the principal pursuant to 34 C.F.R. § 682.202(b) (2004), and new repayment schedules were calculated and sent to Bomhoff.
Bomhoff s last forbearance period ended November 24, 1999. Due to capitalization of accrued but unpaid interest, her principal at that time had increased to $22,340.95. From that point forward, she paid at least the scheduled monthly amounts of $166.31 such that by January 1, 2002, the principal was reduced to $21,146.69.
Prior to January 1,2002, all account statements mailed by Nelnet to Bomhoff contained the following language:
“Application of Payments: Payments are applied first to outstanding interest, the remainder is applied to the principal balance. The amount of interest paid in each payment varies based on your principal balance and the number of days between payments. Interest continues to accrue until your account is paid in full.
....
“Prepayment: You may prepay all or part of your account at any time. UNLESS WE RECEIVE OTHER DIRECTIONS FROM YOU, any prepayment made while your account is in repayment status, will advance your payment due date. For each full monthly payment received, your payment due date will be advanced by one month. If the prepayment amount does not equal at least the amount of one full monthly payment, such additional partial’ payments will be accumulated and will advance your due date once they equal at least one full monthly payment. Payments made with this coupon will be applied only to loans showing a total amount due on this statement. By making prepayments, your loan will likely be paid off early, reducing the total interest paid on your loan. If you would like to pay your account in full, please call us for a payoff amount.” (Emphasis added.)
All account statements mailed by Nelnet to Bomhoff after January 1, 2002, contained language similar to these earlier account statements:
“We calculate interest using the daily simple interest method. Interest accrues daily on your outstanding principal balance. The amount of interest that accrues on your loan(s) depends on your principal balance and the number of days between payments. We apply each payment to your principal balance only after all interest and outstanding fees are paid.” (Emphasis added.)
The new account statements also contained the following:
“If you send a greater payment than is due, we will apply the additional amount to your principal balance. Unless you instruct otherwise, we will advance your due date one month for each full and partial payment received that equals one full monthly payment.”
After receiving her January 3,2002, account statement, Bomhoff made a $200 payment on January 14. Nelnet calculated the interest on the loan by multiplying the daily interest rate (8% per year / 365.25 days per year) by the outstanding principal, and then multiplying by the number of days since the previous payment. Twenty-eight days had passed since her last payment (December 17), resulting in accrued interest of $129.69. Accordingly, $129.69 was applied toward the accrued interest. Since the payment was larger than the regularly scheduled amount, a greater amount than usual ($70.31) was able to be applied toward principal. The payment reduced the outstanding principal to $21,076.38.
Similarly, the following month, on February 15, Bomhoff made a payment of $200. Thirty-two days had passed since her last payment (January 14), resulting in accrued interest of $147.72. Accordingly, $147.72 of her payment was applied toward the accrued interest, and the remaining $52.28 was applied toward the outstanding principal, leaving a balance of $21,024.10.
Bomhoff later received her March 3 account statement which confirmed “payment received since last statement” of $200 and the current principal balance of $21,024.10. It also showed estimated accrued interest of $170.37 and a scheduled payment of $185.09. Since Bomhoff had frequently been making payments greater than the required monthly amounts, pursuant to the stan dard language in the recent account statements it also showed an extended payment due date of June 24, 2002. It additionally showed: “Total Payment Due: $0.00.”
After receiving the March 3 account statement, Bomhoff made a payment which is at the center of this appeal. She sent Nelnet a $1,000 payment along with a note which stated: “PLEASE APPLY THIS 1000 TOWARD THE PRINCIPLE [sic] ON LOAN # XXX-XX-7435.” As of Nelnet’s receipt of the $1,000 on March 29, 42 days had passed since her previous payment (February 15), resulting in accrued interest of $193.40. Accordingly, Nelnet applied $193.40 toward the accrued interest and the remaining $806.60 toward the principal. The payment reduced the outstanding principal to $20,217.50.
As a result of Nelnet’s receipt of Bomhoff s $1,000, her April 3 account statement disclosed that the regular payment due date had again been extended — diis time to November 24, 2002, — and the “Total Payment Due” was $0. It also showed a “payment received since last statement” of $1,000, a current principal balance of $20,217.50, estimated accrued interest of $115.13, and scheduled payment of $185.09.
After Bomhoff learned Nelnet had not applied the full $1,000 to principal, she filed suit on August 19, 2002. She claimed that the payments made in addition to her scheduled monthly payments were not deducted from the loan’s outstanding principal but were used instead by Nelnet to extend the due dates on the next payments in order for Nelnet to wrongfully collect interest income. On February 27, 2004, the district court granted Nelnet’s motion for summary judgment on all claims.
ANALYSIS
Issue: Did the district court err in granting summary judgment to Nelnet on all claims?
Standard of Review
The facts are undisputed, and our decision requires us to interpret and give legal effect to written instruments and federal regulations. Our standard of review of the district court’s grant of summary judgment is therefore de novo. Stone v. U.S.D. No. 222, 278 Kan. 166, 178-79, 91 P.3d 1194 (2004) (written instruments). See State v. Strand, 261 Kan. 895, 897, 933 P.2d 713 (1997) (When an administrative agency has not interpreted its own regulations, the doctrine of operative construction has no application, and this court’s review is unlimited.).
Discussion
Bomhoff argues Nelnet’s conduct was actionable as conversion, fraud, and violations of the KCPA; she has abandoned the breach of contract claim on appeal.
At the outset, we observe that paragraph A of the original promissory note provided that it was subject to, and to be interpreted in accordance with, Title IV, Part B of the Higher Education Act of 1965, as amended, federal regulations adopted under the Act, and the Rules and Regulations of die Nebraska Student Loan Program. The federal regulations adopted under the Act, specifically 34 C.F.R. § 682.209 (2004), are central to the analysis of all of Bomhoff s contentions on appeal. That regulation states in relevant part:
“(b) Payment application and prepayment.
(1) The lender may credit the entire payment amount first to any late charges accrued or collection costs and then to any outstanding interest and then to outstanding principal.
(2) (i) The borrower may prepay the whole or any part of a loan at any time without penalty.
(ii) If the prepayment amount equals or exceeds the monthly payment amount under the repayment schedule established for the loan, the lender shall apply the prepayment to future installments by advancing the next payment due date, unless the borrower requests otherwise. The lender must either inform the borrower in advance using a prominent statement in the borrower coupon book or billing statement that any additional full payment amounts submitted without instructions to the lender as to their handling will be applied to future scheduled payments with the borrower’s next scheduled payment due date advanced consistent with the number of additional payments received, or provide a notification to the borrower after the payments are received informing the borrower that the payments have been so applied and the date of the borrower’s next scheduled payment due date. Information related to next scheduled payment due date need not be provided to borrower’s making such prepayments while in an in-school, grace, deferment, or forbearance period when payments are not due.” (Emphasis added.)
A. Conversion
The district court held:
“Plaintiff alleges conversion due to Defendant’s application of plaintiffs payment first to accrued interest, then principal. As a matter of law, even were there an erroneous application of funds tendered to Defendant, it would not constitute conversion. Moore v. State Bank of Burden, 240 Kan. 382.
“The Court finds as a matter of law there is no viable claim for conversion and summary judgment is granted in favor of the Defendant on that claim.”
We agree with the district court but need not reach the conversion issue as it was particularly analyzed in Moore, i.e., an erroneous application of funds, because other grounds affirm the district court’s decision. See Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, Syl. ¶ 3, 863 P.2d 364 (1993) (district court’s reasons for its decisions are immaterial if ruling was correct for any reason).
Conversion is the unauthorized assumption or exercise of the right of ownership over goods or personal chattels belonging to another to the exclusion of the other’s rights. Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, Syl. ¶ 2, 701 P.2d 934 (1985). Checks can be converted. Carmichael, 237 Kan. at 501-02. However, with the Note’s reference to the loan being “subject to” the federal regulations regarding student loans, it expressly authorized Nelnet to apply the check funds to interest first. 34 C.F.R. § 682.209(b)(1) provides: “The lender may credit the entire payment amount first to any late charges accrued or collection costs and then to any outstanding interest and then to outstanding principal.”
Bomhoff was reminded of this authority in the account statements: “Payments are applied first to outstanding interest, the remainder is applied to the principal balance.”
Consequently, Nelnet did not convert any of Bomhoff s funds because it did precisely what Bomhoff authorized it to do: apply the $1,000 payment first to any outstanding interest and then to outstanding principal.
B. Fraud
The district court held:
“Plaintiff alleges Defendant committed fraud by improperly crediting the Plaintiffs account and issuing a statement showing prepayment of a monthly loan amount. There are no specific allegations as to fraudulent behavior.
“The uncontroverted facts establish that Defendant’s actions in handling Plaintiff s payments were in accordance with the mandates established by Federal law. 34 C.F.R. 682.209[b](2)(ii).
“There is no evidence of an untrue statement of fact or any statement by Defendant to deceive Defendant.
“The Court finds that the uncontroverted facts taken in a light most favorable to the Plaintiff, do not disclose any actual or constructive intent on the part of the Defendant to commit fraud upon the Plaintiff.
“Defendant complied with Federal law. 34 C.F.R. 682.209[b](2)(ii).
“The Court grants Defendant’s motion for summary judgment on the issue of fraud.”
We agree with the district court’s stated reasons.
First, “[t]he elements of an action for fraud include [1] an untrue statement of fact, [2] known to be untrue by the party making it, [3] made with the intent to deceive or with reckless disregard for the truth, [4] upon which another party justifiably relies and [5] acts to his or her detriment.” Alires v. McGehee, 277 Kan. 398, Syl. ¶ 3, 85 P.3d 1191 (2004).
Although Bomhoff was told that her next payment was due on June 24, 2002, she fails to show that this was an untrue statement of fact. Summary judgment was therefore proper. See Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998) (A defendant is entitled to summary judgment if the defendant can establish the absence of evidence necessary to support an essential element of the plaintiff s case.).
Second, we observe that because the $1,000 payment on March 29 “equals or exceeds the monthly payment amount under the repayment schedule established for the loan, the lender shall apply the prepayment to future installments by advancing the next payment due date, unless the borrower requests otherwise.” (Emphasis added.) 34 C.F.R. § 682.209(b)(2)(h).
Indeed, we observe that Nelnet and Bomhoff each proceeded according to the federal regulations. With Bomhoffs $1,000, she prepaid “part of a loan any time without penalty.” 34 C.F.R. § 682.209(b)(2)(i). Next, Nelnet credited “the entire payment amount ... to any outstanding interest and then to outstanding principal.” § 682.209(b)(1). Nelnet then applied “the prepayment to future installments by advancing the next payment due date, unless the borrower requests otherwise.” § 682.209(b)(2)(ii). Accordingly, Bomhoff fails to show how this constitutes fraud.
We also agree with the district court’s conclusions for reasons it did not articulate.
First, contrary to Bomhoffs apparent argument, by extending the due date 5 months— from June 24 to November 24 — Nelnet did not simply apply the $1,000 to eliminate five future installment payments of identical amounts. In otherwords, the $1,000 payment was not the equivalent of five checks of $200 each being paid on each month’s due date. Instead, Nelnet paid off the accrued interest to date ($193.40), and then was able to apply the balance ($806.60) all to principal. By reducing the principal in such an amount, the result was a significant savings in accrued interest— on that new principal amount — to Bomhoff through the remaining 12-year life of the loan.
We note that the extension of the payment due dates is apparently done as a courtesy to the student loan borrower, which allows the borrower to be temporarily relieved from making the regular monthly payments in addition to his or her extra lump sum payment.
Second, despite Bomhoff s argument, an account statement providing that no payment is due is not the equivalent of stating that no interest accrues on the account during the time no payment is due. The account statements notify her to the contrary: “[I]nterest accrues daily on the outstanding principal balance. The amount of interest that accrues . . . depends on your principal balance and the number of days between payments.”
C. Violations of the KCPA
Finally, Bomhoff argues that Nelnet’s application of the $1,000 payment first to interest, as well as its extension of due dates, were deceptive and unconscionable practices. She contends that the issue of deceptive acts is a question of fact to be submitted to the jury and implies that it is not a proper claim for summaiy judgment.
The district court held:
“Plaintiff similarly claims Defendant violated the Kansas Consumer Protection Act (K.S.A. 50-626 and 50-627) by improperly reducing the outstanding principal instead of extending the payment due date on the loan. '
“The Court finds by tire uncontroverted facts herein,- that Defendant acted in accordance with Federal law which mandated it apply the prepayments to future installments. 34 C.F.R. 682.209[b](2)(ii). Accordingly, the Court finds Defendant’s conduct does not rise to the standard of deceptive conduct as proscribed by the intent of the Kansas Consumer Protection Act. Therefore, as a matter of law, Defendant’s motion for summary judgment is granted dismissing plaintiff s claims under the Consumer Protection Act.”
We agree with the district court.
We acknowledge that K.S.A. 50-626(a) provides: “No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.” The statute then goes on to provide a nonexhaustive list of deceptive acts and practices.
Similarly, K.S.A. 50-627(a) provides: “No supplier shall engage in any unconscionable act or practice in connection with a consumer transaction. An unconscionable act or practice violates this act whether it occurs before, during or after the transaction.” The statute then goes on to provide a nonexhaustive list of unconscionable acts and practices.
However, summary judgment is appropriate if there is no evidence of deceptive or unconscionable acts. Gonzales v. Associates Financial Serv. Co. of Kansas, 266 Kan. 141, 166, 967 P.2d 312 (1998); see Stair v. Gaylord, 232 Kan. 765, 775-76, 659 P.2d 178 (1983) (directed verdict for defendant on K.S.A. 50-626[b][3] and K.S.A. 50-627[b]; KCPA claims affirmed because no evidence of deceptive or unconscionable acts presented, reversed on other KCPA claims).
In the instant case, Bomhoff presents no evidence that Nelnet engaged in a deceptive or unconscionable act or practice. Under 34 C.F.R. § 682.209(b), Nelnet was not only entitled to apply the $1,000 payment first to outstanding interest but was also required to extend the payment due dates on the loan. The provisions, (b)(1) and (b)(2)(ii), are not mutually exclusive.
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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Per Curiam:
This is an original action in discipline filed by the office of the Disciplinaiy Administrator against the respondent, Gerald E. Hertach, of Hutchinson, Kansas, an attorney admitted to the practice of law in Kansas in 1972.
A disciplinary panel of the Kansas Board for Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211 (2004 Kan. Ct. R. Annot. 275). The panel unanimously found that Hertach violated Rules 8.4(b) and (c) (2004 Kan. Ct. R. Annot. 485) (misconduct) of the Kansas Rules of Professional Conduct (KRPC) by committing a criminal act that reflected adversely on his honesty, trustworthiness, and fitness as a lawyer and engaging in conduct involving dishonesty, fraud, deceit, and misrepresentation. The panel also found Hertach violated Supreme Court Rule 211 by failing to timely file a written answer to the formal complaint. The panel unanimously recommended that Hertach be disbarred from the practice of law in Kansas. Hertach filed exceptions to the final hearing report, primarily challenging the disciplinary panel’s findings regarding the factors which led to the recommended discipline.
The finding that Hertach violated KRPC 8.4(b) and (c) relates to the panel’s conclusion that Hertach intentionally concealed his partnership with the Reno County Sheriff when contracting to run a jail annex for Reno County. Hertach’s involvement in the Reno County jail operation dates back to 1993 when Reno County en tered into an agreement with House Arrest, Inc. (House Arrest), for “alternative incarceration.” House Arrest ran a program in a state fair grounds building which housed inmates ordered to serve mandatory 2- or 5-day sentences, typically for convictions of driving under the influence or driving while suspended. Although House Arrest was originally incorporated by Jon Powell, Hertach eventually became resident agent, stockholder, secretary, and a director of House Arrest. When Powell left town, Hertach took over running the company and fulfilled the terms of the contract between House Arrest and Reno County.
Through his experience running House Arrest, Hertach became aware of the county’s need for additional jail space and informed the Board of Reno County Commissioners (Board) of his interest in developing a privately run jail annex for the county. Hertach also discussed the county’s need for additional jail space with Sheriff Lariy Leslie and Undersheriff Kenneth Angelí. Hertach, Sheriff Leslie, and Undersheriff Angelí formed a “silent” partnership to provide the county with privately run jail space, agreeing to split the profits equally. The three men discussed the need for secrecy and decided to conceal the Sheriff s and Undersheriff s financial interests, recognizing that if those interests were known there would be “political roadblocks.” Accordingly, none of the three disclosed their partnership to the Board. The three men also discussed the need to set up separate corporations to protect the profits from the jail annex contract. Hertach suggested that Sheriff Leslie and Undersheriff Angelí set up corporations in Nevada. However, at some point, Undersheriff Angelí told Hertach he no longer wanted to participate in the partnership because he believed there was a conflict of interest.
In formal and informal meetings with the Board, Sheriff Leslie wholeheartedly supported the idea that Hertach develop and run a private jail annex but did not disclose his financial interest in Hertach’s proposal. According to County Commissioner Larry Sharp, Sheriff Leslie’s support was integral to the Board’s decision to approve Hertach’s proposal.
In October 1997, Hertach incorporated MgtGp, Inc. (MGI). Hertach was resident agent, stockholder, secretaiy, treasurer, and a director. In November 1997, MGI entered into a management agreement with the Board to develop and run a private jail annex.
In March 1998, Hertach incorporated Czech Capital & Management, Inc. In April 1998, Hertach incorporated Ten Corps, Inc., in Nevada through Laughlin Associates, Inc., a company that offered a “total privacy package” in incorporating businesses. In May 1998, Sheriff Leslie also utilized a privacy package to incorporate Kaw, Inc., in Nevada, also using Laughlin Associates, Inc. Sheriff Leslie also formed other companies called Golf, Gulf, and Star Enterprise.
Reno County paid MGI by check for operating the jail annex. MGI paid the expenses of running the jail annex and then transferred the remaining funds to Hertach’s corporation Czech Capital & Management, Inc. That corporation split the funds equally, paying half to Hertach and half to Hertach’s Nevada corporation Ten Corps, Inc. Ten Corps, Inc., then transferred its half of the funds to Sheriff Leslie’s corporation Kaw, Inc., which in turn transferred the funds to either Golf, Gulf, or Star Enterprise where they were obtained by Sheriff Leslie.
About a year before the contract was due to expire, Hertach and Sheriff Leslie separately approached the Board requesting that the contract be extended. The Board entered into a second management agreement with MGI in January 2000. Again, neither Hertach nor Sheriff Leslie disclosed their silent partnership.
Between January 1998 and June 2001, Hertach operated the jail annex without incident. During that time period, Hertach and Sheriff Leslie personally received approximately $284,875 each.
In January 2001, the Kansas Bureau of Investigation began an investigation into the running of the jail annex and the MGI contract. In May 2001, the county filed a civil lawsuit. As a result, Central Bank and Trust was appointed as receiver. Reno County made payments under the MGI contract to the receiver, the expenses of operating the jail annex were paid, and the remaining profits were retained by the receiver pending the outcome of the civil suit.
In 2002, the Kansas Attorney General filed a complaint charging Hertach with 34 counts of bribery, 13 of which were later dismissed based on the statute of limitations. The same day that the Attorney General filed the complaint, Hertach disclosed the charges to the Disciplinary Administrator.
In October 2002, the district court held a hearing on a motion in limine filed by the prosecution seeking to prevent Hertach from arguing to a jury that he was guilty of participating in a prohibited contract rather than bribeiy. When that motion was denied, the prosecution entered into plea negotiations with Hertach. On the day trial was to begin, the parties reached an agreement. The prosecutor filed an amended complaint charging Hertach with two counts of participation in a prohibited contract, class B misdemeanors in violation of K.S.A. 75-4304(b).
According to the plea agreement, Hertach agreed to recommend that the court set restitution at $750,000 to be paid jointly and severally by Hertach, Sheriff Leslie, and MGI. The parties arrived at this figure by roughly doubling the amount Sheriff Leslie profited by the contract and adding the amount Hertach profited by the contract.
At the plea hearing, Hertach pled guilty to the charges contained in the amended complaint, and the district court directed Hertach and Sheriff Leslie to provide the court with a workable restitution plan. Prior to sentencing, Hertach suggested to the Board that he be allowed to complete the terms of the contract and pay all of the profit to the county as restitution. The Board rejected this offer. Rather, Sheriff Leslie’s successor terminated the MGI contract in December 2002.
Hertach never provided the court with a restitution plan. At sentencing, Hertach’s counsel told the district court he had “no clue” how Hertach could pay $750,000 in restitution. He stated Hertach’s only assets were exempt assets including pension funds, the family home, and a car. The prosecutor recommended that Hertach and Sheriff Leslie be sentenced to jail until they “get serious about this” and submit financial statements. The district court agreed, finding that Hertach had engaged in deceitful conduct founded on deliberate greed, and sentenced Hertach to two consecutive 6-month terms. The court agreed to consider a motion for parole after 90 days if Hertach provided a workable restitution plan, but Hertach never did. Instead, he served the full 12 months in jail.
Disciplinary Proceedings
In October 2003, the Deputy Disciplinary Administrator filed the formal complaint in this case, and Hertach filed a written answer in March 2004. As previously noted, after conducting a hearing, the disciplinary panel concluded Hertach violated Supreme Court Rule 211 by not timely filing an answer and also violated KRPC 8.4(b) and (c) which state that it is unprofessional misconduct for lawyer to “(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” or “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (2004 Kan. Ct. R. Annot. 485.)
The disciplinary panel applied Standard 3 of the American Bar Association’s Standards for Imposing Lawyer Sanctions (1991) as part of its analysis of what sanction to recommend to the court. Standard 3 states: “In imposing a sanction after a finding of lawyer misconduct, a court should consider the following factors: (a) the duty violated; (b) the lawyer’s mental state; (c) the actual or potential injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or mitigating factors.”
The panel concluded Hertach had violated his duty to maintain personal integrity by engaging in serious criminal conduct, that Hertach had intentionally violated his duty, and that Hertach had caused actual injury to Reno County.
The disciplinary panel made findings regarding a variety of aggravating factors, including findings that Hertach engaged in deceitful conduct motivated by greed; the ongoing nature of his participation in prohibited contracts showed a pattern of misconduct; he engaged in bad faith obstruction of the disciplinary proceeding by failing to file a timely written answer; he refused to acknowledge the wrongful nature of his conduct; he has substantial experience in the practice of law; he was indifferent toward making restitution; and he had engaged in illegal conduct.
As to mitigating factors, the disciplinary panel found that Hertach had no prior disciplinary record; he self-reported his miscon duct the day charges were filed; prior to the misconduct in this case, he was a productive and respected member of the bar with a good character and reputation; and he had already been sanctioned for his misconduct by serving 12 months in jail.
The disciplinary panel also considered ABA Standards 5.11 and 5.12 which provide guidance as to when disbarment or suspension are appropriate sanctions. The panel concluded that Hertach’s conduct fell within Standard 5.11, the disbarment guideline, because he had misrepresented facts to the Board by omission, defrauded Reno County by inducing it to enter into a contract it would not otherwise have entered, and conspired with Sheriff Leslie to defraud Reno County. Because Hertach’s conduct was encompassed by Standard 5.11, the disciplinary panel found disbarment rather than suspension to be the appropriate discipline. The panel also recommended that if Hertach eventually applies for reinstatement, he should be required to establish that he has repaid Reno County for the profits he received as a result of the prohibited contracts.
Proceedings Before This Court
This court’s standard of review in disciplinaiy cases is well known:
“ ‘In disciplinary matters, this court must examine the evidence and determine the judgment to be entered. In doing so, the findings of fact, conclusions of law, and recommendations made by the disciplinary panel are advisory only, but will be given the same dignity as a special verdict by a jury or the findings of a trial court. The disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence or where the evidence consisted of sharply conflicting testimony. [Citations omitted.] We apply these rules in considering die evidence, the findings of the disciplinary panel, and tire arguments of the parties in making our determination of whether violations of KRPC exist, and, if they do, deciding upon the appropriate discipline to be imposed. [Citation omitted.]’ ” In re Wright, 276 Kan. 357, 370, 76 P.3d 1018 (2003).
Hence, our first inquiry is whether there is competent evidence to support the panel’s findings that Hertach violated KRPC 8.4(b) and (c) and Rule 211. Hertach admitted in his testimony before the panel that he violated KRPC 8.4(b) and (c). Further, while he argued his delay in answering the disciplinary complaint was because of his incarceration and that the delay did not create any prejudice, he admitted that he did not file his answer to the disciplinary complaint within 20 days after service as required by Rule 211 and did not seek an extension of time. Hertach answered nearly 6 months after the formal complaint was filed and only 7 days prior to the hearing. Thus, the disciplinary panel’s findings of violations of KRPC 8.4(b) and (c) and Rule 211 are supported by competent evidence and the panel’s findings regarding these violations are adopted by the court.
Next, we must examine whether there is competent evidence to support the panel’s findings and conclusions regarding the severity of the disciplinary sanction. Hertach takes exception to several conclusions reached by the panel regarding various factors under ABA Standard 3, quoted above. The four-part analysis of Standard 3 is framed by its first inquiry which is: what is the nature of the duty which was violated. As the comments to the Standard explain, this inquiry includes a determination of whether the duty was to the client, the public, the legal system, or the profession. ABA Standards for Imposing Lawyer Sanctions, Theoretical Framework (1991).
In this case, the disciplinary panel found the duty which Hertach violated was his duty to maintain personal integrity. The ABA commentary explains that attorneys owe this duty to the public which has the right to trust lawyers. “The community expects lawyers to exhibit the highest standards of honesty and integrity, and lawyers have a duty not to engage in conduct involving dishonesty, fraud, or interference with the administration of justice.” ABA Standards for Imposing Lawyer Sanctions, Theoretical Framework, p. 5 (1991).
The second inquiry under Standard 3 relates to the level of culpability, in other words, whether the conduct was intentional, knowing, or negligent. Under the ABA Standards, severe disciplinary sanctions are generally reserved for intentional conduct.
Hertach takes exception to the disciplinary panel’s conclusion that he intentionally violated his duty to the public, contending that while he knew Reno County was not aware of Sheriff Leslie’s involvement in the partnership, he did not act with the intent to violate any criminal law but out of “political expediency.” However, there is a plethora of evidence which supports the disciplinary panel’s conclusion that Hertach acted intentionally, including the agreement to keep the partnership a secret, the complicated scheme to launder money from the jail operation by funneling it through several corporations and back to Sheriff Leslie, and Hertach’s effort to destroy any paper trail regarding those corporations. Further, all of this evidence was sufficient to support the disciplinary panel’s finding that Hertach intentionally misrepresented facts by omission and did so for the purpose of inducing a contract which he knew would not be executed if the facts were known. As the sentencing court stated, Hertach acted with “pure, deliberate greed.”
The third step of analysis under Standard 3.0 is to examine the extent of the actual or potential injury. The panel found that there had been actual injury. Some of the panel’s findings relate to the amount of money which Hertach and the Sheriff received over and above the costs of actual operation of the jail annex. Hertach argues that these findings are flawed and urges us to apply tort principles of causation and damages. Under such a standard, he argues there was no injury because the jail annex operation actually saved Reno County a substantial amount of money compared to the costs if the county had operated the facility, there was no evidence anyone would have contracted for less, there was no evidence that the contract rate was above market rate, and there were never any complaints about MGI’s management of the facility.
These arguments ignore the nature of the duty which Hertach violated. The ABA Theoretical Framework explains: “The extent of the injury is defined by the type of duty violated and the extent of actual or potential harm.” It follows that violation of some duties does not always result in a monetary loss or an injury to which our tort system would ascribe a recoverable damage, especially in cases such as this where the duty is defined as one owed to the public or the legal system. For example, the Theoretical Framework includes an example of a case where a lawyer tampers with a witness. In such a circumstance, “the injury is measured by evaluating the level of interference or potential interference with the legal proceeding. In this model the standards refer to various levels of in jury: ‘serious injury,’ ‘injuiy,’ and ‘little or no injuiy.’ ” ABA Standards for Imposing Lawyer Sanctions, Theoretical Framework, p. 6 (1991).
As previously discussed, Hertach violated the public’s trust. He did so in a very public manner, violating-criminal statutes relating to public contracts. The sentencing court, in rejecting the suggestion that a jail sentence served no purpose, cited the interest of deterrence in a case involving the chief law enforcement official in the county and a lawyer who acted out of “pure, deliberate greed.” Hertach’s conduct was criminal, notorious, and seriously injurious.
Further, there was monetaiy injury to the public which incurred the cost of taking legal action to terminate the MGI contract and to appoint a receiver. Thus, there is ample evidence that serious injuiy resulted from Hertach’s unprofessional conduct.
The final step in considering the appropriate sanction is to examine aggravating and mitigating factors. Hertach takes exception with several of the conclusions of the disciplinaiy panel.
First, he challenges the disciplinaiy panel’s finding that, despite Hertach’s self-reporting of his misconduct, he “engaged in a bad faith obstruction of the disciplinaiy proceeding by failing to file a written Answer to the Formal Complaint for nearly six months.” The conclusion is supported by competent evidence. Hertach never requested an extension to file his answer and, instead, waited until 1 week before the hearing to file an answer in which he maintained that his culpability was minor.
Next, Hertach takes exception with the conclusion that he minimized his wrongful conduct, arguing that the panel misconstrued legal arguments as minimization. However, our independent review of Hertach’s answer and other portions of the record confirms the panel’s conclusion.
Hertach also takes exception with the finding that he was indifferent to making restitution, arguing that the panel confused inability with indifference. However, the record and Hertach’s statements to the court reflect more indifference than inability.
There is also evidence in the record which amply supports the other aggravating factors cited by the disciplinary panel to which Hertach did not take exception, including: Hertach engaged in de ceitful conduct motivated by greed; the ongoing nature of his participation in prohibited contracts showed a pattern of misconduct; he has substantial experience in the practice of law; and he had engaged in illegal conduct.
The record also provides evidence of the mitigating factors cited by the panel: Hertach had no prior disciplinaiy record; he self-reported his misconduct the day charges were filed; prior to the misconduct in this case, he was a productive and respected member of the bar with a good character and reputation; and he had already been sanctioned for his misconduct by serving 12 months in jail.
With these factors in mind, the panel examined the guidelines adopted by the ABA and concluded that disbarment was the appropriate sanction. Hertach argues his conduct does not match the elements of Standard 5.11 which establishes guidelines for determining if disbarment should be ordered.
Standard 5.11 provides:
“Disbarment is generally appropriate when:
‘(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft ... or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
‘(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.’ ”
Applying these provisions, the disciplinary panel found:
“The evidence presented in this case involved evidence that the Respondent misrepresented facts to the Board by omission, that the Respondent defrauded Reno County by inducing it to enter into a contract that it would not otherwise have entered, and that the Respondent conspired with Sheriff Leslie to defraud Reno County. Because three of the factors detailed in Standard 5.11 are present, the Hearing Panel concludes that Standard 5.11 is controlling in this case.
“The hearing panel disagrees with counsel for the Respondent’s assessment that the criminal behavior in this case is not serious. The Respondent intentionally misled a county government in order to obtain a contract for services. Engaging in criminal conduct that reflects on a person’s honesty is serious criminal conduct for any attorney.”
Hertach correctly argues that he was not convicted of a crime which includes “intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft” as a necessary element of the crime. Participation in a prohibited contract is defined by K.S.A. 75-4304(b), which provides: “No person or business shall enter into any contract where any local governmental officer or employee, acting in that capacity, is a signatory to or a participant in the making of the contract and is employed by or has a substantial interest in the person or business.” The statute does not include elements of fraud or dishonesty.
However, under Standard 5.11(b), disbarment is appropriate where a lawyer engages in “intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that' seriously adversely reflects on the lawyer s fitness to practice.” Conviction or even the charging of a crime with these elements is not necessary for this provision to apply. As previously discussed, Hertach admitted to violations of KRPC 8.4(b) and (c), which provide that it is professional misconduct to “(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” and to “(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” (2004 Kan. Ct. R. Annot. 485). Under the facts of this case, the contract was prohibited because of Sheriff Leslie’s involvement, a fact which was deliberately and intentionally concealed in an act of fraud, deceit, and misrepresentation by omission. This purposeful omission and criminal conduct reflects upon Hertach’s honesty, trustworthiness, and fitness as an attorney.
Hertach also contends that his misconduct does not seriously adversely reflect on his ability to practice law since he was acting as a principal and not as a lawyer representing a client when he obtained the MGI contract. However, as the sentencing court noted, Hertach was “a lawyer well knowing what the law is with regard to conflict of interest.” Furthermore, Hertach’s argument ignores the panel’s conclusion that the duty which was violated was a public duty — the public’s right to have an attorney act in a trustworthy fashion. Honesty and trustworthiness are core values of our profession, essential to the practice of law, and Hertach, by his own admission, engaged in criminal conduct which reflected adversely on his honesty, trustworthiness, and fitness as a lawyer.
The court unanimously concludes that the disciplinary panel’s recommended discipline of disbarment is warranted and appropriate. We agree with and adopt the disciplinary panel’s conclusions and recommendations.
It Is Therefore Ordered that the respondent, Gerald E. Hertach, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2004 Kan. Ct. R. Annot. 237) for his violations of the Kansas Rules of Professional Conduct and Supreme Court Rules.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Gerald E. Hertach from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that Gerald E. Hertach comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Larson, J.:
Gene and Peggy Schmidt, individually and as heirs of their daughter Stephanie Schmidt, and Gene as administrator of her estate, brought these personal injury and wrongful death actions against Stephanie’s former employer, HTG, Inc. d/b/a Hamilton’s, Thomas E. Hamilton, the Kansas Department of Corrections (KDOC), and Robert Schirk, a state parole officer. On June 30,1993, Stephanie was raped and killed by Donald Ray Gideon, who had been conditionally released from prison by mandatory operation of law and was under the supervision of Schirk. The Schmidts contend that Stephanie’s death was a result of the KDOC’s and Schirk’s failure to notify Hamilton, Gideon’s employer, of defendant’s prior convictions for rape and aggravated sodomy and that Hamilton negligently hired and retained Gideon as an employee. A 42 U.S.C. § 1983 (1994) claim was also made against the KDOC and Schirk.
The defendants moved for summary judgment, essentially alleging there was no duty owed to Stephanie, causation was lacking, and the KDOC and Schirk were entitled to immunity under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. The trial court granted Schirk and the KDOC summary judgment regarding the Schmidts’ § 1983 claims, but denied the remaining summary judgment motions. The. trial court granted permission for the defendants to file an interlocutory appeal and for the Schmidts to file their cross-appeal. The cases were consolidated and transferred to us pursuant to K.S.A. 20-3Q18(c).
Factual Statement
Donald Ray Gideon was conditionally released from prison by mandatory operation of law on November 5, 1992, having served approximately 10 years in prison for convictions of aggravated rape and sodomy of a young college woman. Prior to his mandatory release, Gideon had been denied parole at every prior parole hearing. Gideon completed the Sexual Offender Treatment Program while incarcerated.
Gideon was supervised by Robert Schirk. Schirk had worked for the KDOC for 12 years as a parole officer and had completed its basic and annual training requirements. He had previously supervised other sex offenders.
Schirk completed a Risk and Needs Assessment of Gideon to determine his level of risk and likelihood of reoffending and to establish the level of supervision he required. Gideon was assessed as high risk, although the KDOC policy so classifies all sex offenders.
When released, Gideon signed a conditional release certificate imposing certain conditions on his release. In addition to these requirements, Schirk ordered Gideon to meet with a mental health therapist and to obtain employment. Schirk possessed the inherent authority to impose additional conditions of release if warranted.
In 1992 and 1993, the KDOC had an unwritten policy which required the parole officer to give notice of a parolee’s criminal history to any third party who was determined, in the parole officer’s discretion, to be at risk through association with a parolee. The present policy regarding third-party notification has been reduced to writing and requires employer notification of a parolee’s criminal history.
HTG, Inc. d/b/a Hamilton’s opened for business in Pittsburg, Kansas, in December 1992. Hamilton had agreed to manage the restaurant for HTG, Inc. Hamilton hired and fired all employees of the restaurant. He had extensive experience in the food service industry and had hired approximately 1,000 employees. He had never run a records check on any potential employee, nor had he ever fired, or been told to fire, anyone for falsifying an employment application.
Gideon initially was employed at Superior Industries but quit soon thereafter. Gideon then obtained employment at Hamilton’s Restaurant in December 1992, without any involvement of Schirk. Gideon did not inform Hamilton of his criminal record or tell him he was on parole. Hamilton did not run a background check on Gideon before hiring him, nor did he check Gideon’s references or employment history.
Hamilton also hired Stephanie, a Pittsburg State University student, who started working in December 1992. She remained employed until mid-June 1993, when she left Hamilton’s after a dispute and did not return.
In February 1993, Gideon admitted to Hamilton he had been in prison and was on parole. Gideon lied to Hamilton and stated he had been incarcerated as a result of a bar fight where he had severely beaten a man with an axe handle. Hamilton never attempted to verify this story, which eventually became generally known by the other employees at Hamilton’s, including Stephanie.
Hamilton learned Gideon had a parole officer and was attending counseling. Gideon informed Schirk that Hamilton knew he was on parole, but Schirk never contacted Hamilton to determine if the information divulged was correct. Hamilton had a chance meeting with Schirk at a convenience store in May or June 1993, in which Hamilton told Schirk that Gideon was doing fine at his job. Hamilton did not inquire about Gideon’s conviction, nor did Schirk volunteer any information.
Hamilton never received any complaints from his employees concerning Gideon’s conduct. Gideon was polite, dependable, and soft-spoken, and the waitresses seemed to like him. Stephanie told her father that Gideon was nice to her, never tried to hit on her, helped protect the waitresses’ tips, and that she trusted him. Hamilton also trusted Gideon, permitting his two sons to work in the restaurant and allowing Gideon to transport his fiancee and daughter to work.
Gideon once told Hamilton he had slapped a woman for insulting him and thrown her purse down the stairs. He also informed Hamilton he had told a woman to leave his apartment unless she had oral sex with him. On one occasion, Hamilton gave Gideon a day off work after he had been involved in a fight at a local tavern.
Schirk never informed Hamilton or any of the restaurant employees that Gideon was a paroled sex offender and stated he did not disclose this information because he was concerned Gideon would be fired. Schirk’s goal was to assist Gideon in reintegrating into society, and Schirk believed society is better protected from recidivism by ensuring that parolees are employed and self-supporting. By May 1993, Schirk no longer believed Gideon would lose his employment if he informed Hamilton of Gideon’s past criminal history.
Hamilton stated he would have informed Schirk of Gideon’s inappropriate conduct if he had been aware of Gideon’s actual criminal history. Hamilton indicated he would not have initially hired Gideon had he been aware of Gideon’s true criminal histoiy and would have informed his employees about it had he later been informed.
Schirk believed Gideon was adequately complying with the conditions of his parole. Gideon reported to Schirk as directed, maintained employment, attended counseling, made restitution and costs payments, and reported spending leisure time in appropriate pursuits. In May 1993, Gideon’s supervision status was relaxed to “intermediate.” Schirk indicated he might have requested the revocation of Gideon’s parole had he known of the incidents of inappropriate conduct with women which Gideon had described to Hamilton.
Schirk was aware that young women were employed at Hamilton’s. He acknowledged that female employees of Hamilton’s were at a risk of harm due to their association with Gideon, although Schirk specifically stated he “did not feel that there was a third party at risk.”
On the night of June 30, 1993, Stephanie and several friends went to a bar in Frontenac, Kansas, to celebrate her birthday. Gideon was at the bar. Stephanie became ill and accepted a ride home from Gideon. She was never again seen alive.
In the Schmidts’ personal injury and wrongful death suit, they alleged the Hamilton defendants breached a duty owed to Stephanie and to them by negligently hiring and retaining Gideon as an employee at Hamilton’s. The Schmidts claimed the State defendants breached both a common-law duty and KDOC policy by failing to warn Hamilton of Gideon’s criminal history. The Schmidts also made 42 U.S.C. § 1983 claims against Schirk and the KDOC.
In denying motions for summary judgment, the trial court ruled against the Hamilton defendants as to their claims that they owed no duty to Stephanie or the Schmidts and that the breach of any such duty did not proximately cause the Schmidts’ injuries. The court also determined that a special relationship existed between the State defendants and Gideon, in addition to KDOC policy, giving rise to a duty to warn, and rejected the State defendants’ claims to immunity under the KTCA. The court did reject the Schmidts’ § 1983 claims, holding the record did not support a showing of reckless conduct under the totality of the surrounding circumstances such that the court’s conscience was shocked.
The trial court issued a K.S.A. 60-2102(b) order that its rulings on the summary judgment motions involved controlling questions of law as to which there is a substantial ground for difference of opinion such that an immediate appeal would materially advance the termination of litigation. The Hamilton and State defendants all appeal their adverse rulings. The Schmidts cross-appeal the dismissal of their § 1983 claims. The Court of Appeals granted permission to take the interlocutory appeals.
Standard of review
A party is entitled to summary judgment if “there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.” K.S.A. 60-256(c).
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
We are obligated on appeal to resolve all facts and inferences reasonably drawn from the evidence in favor of the party against whom summary judgment was entered. Summary judgment should be denied where reasonable minds could differ as to the conclusions to be drawn from the evidence. Gragg v. Wichita State Univ., 261 Kan. 1037, 1044, 934 P.2d 121 (1997).
The trial court’s rulings that the State defendants and Hamilton’s owed a recognizable duty to Stephanie and that Schirk and the KDOC were not immune from liability under exceptions to the KTCA are all questions of law. See Gragg, 261 Kan. at 1044; Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 451, 912 P.2d 729 (1996). We have unlimited review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996).
§ 1983 claims
In granting summary judgment in favor of the KDOC and Schirk on the Schmidts’ § 1983 claims, the trial court first noted that the Schmidts acknowledge their § 1983 claim against the KDOC is not presently allowed under the law. The trial court then held that as to the § 1983 claim against Schirk, the Schmidts had been unable to prove that their claim fell within one of the exceptions to the general rule that a State actor may not be held hable under the Due Process Clause to the United States Constitution for private misdeeds. Citing DeShaney v. Winnebago Cty. Dept. Soc. Servs. Dept. 489 U.S. 189, 103 L. Ed. 2d 249,109 S. Ct. 998 (1989), the court noted that the two recognized exceptions are: (1) the special relationship doctrine, and (2) the danger creation theory. Both the Schmidts and the trial court focused exclusively on the second exception, recognizing that the first was not applicable.
Federal courts have established the elements necessary for proving this second exception: (1) The plaintiff/victim must be a member of a limited and specifically definable group; (2) the defendant’s conduct specifically put members of that group at substantial risk of serious, immediate, and proximate harm; (3) the risk was obvious or known; (4) the defendant acted recklessly in conscious disregard of that risk; and (5) the conduct, when viewed in the totality of the circumstances, is shocking to the conscience. Collins v. Harker Heights, 503 U.S. 115, 117 L. Ed. 2d 261, 112 S. Ct. 1061 (1992); Medina v. City and County of Denver, 960 F.2d 1493 (10th Cir. 1992).
The trial court decided that Schirk’s conduct did not meet the elements of the danger creation theory primarily because it found his conduct was not reckless or shocking to its conscience. The court held:
“Although plaintiffs argue quite strongly that Schirk’s conduct was reckless, the Court disagrees. Arguably Schirk’s conduct is actionable in the traditional ‘tort’ sense of the word, yet the Court does not find that the record supports a showing of reckless conduct. That is, the plaintiffs have failed to demonstrate that Schirk was aware of a risk to Ms. Schmidt so great that it was highly probable that serious harm would occur. Nor have the plaintiffs demonstrated that Schirk proceeded in a conscious and unreasonable disregard of probable consequences with an intent to harm or an intent to place Ms. Schmidt in an unreasonable risk of harm. Again, it can perhaps be argued that Schirk’s conduct was negligent, yet the complained of conduct falls short of that which is contemplated by a Section 1983 claim.
“The facts which were developed in the discovery phase support this conclusion. Undeniably Schirk was aware that sex offenders are at a high risk of re-offending. A logical extension of this awareness would be the knowledge that Gideon’s female co-employees were at risk. Yet Schirk at that point in time had been given no reason to believe that Gideon was engaging in any inappropriate behavior which focused on the Hamilton waitresses. Gideon reported to Schirk as ordered, indicated no problems at work, and had maintained the same job for seven months. There was nothing about Gideon’s known conduct which would indicate to Schirk that the Hamilton waitresses were in specific danger of imminent harm. Accordingly, the plaintiffs have been unable to demonstrate either an intent to harm or an intent to place a person unreasonably at risk of harm, as per the requirement of Medina, supra.
“As previously noted, the Court is required to consider the totality of the surrounding circumstances in ruling on the propriety of a Section 1983 claim. [Ci tation omitted.] In doing so, the Court notes that Schirk’s role in the supervision of Gideon involved the balancing of competing interests: the protection of the public versus the rehabilitation of the offender. This at times isa difficult balancing act to accomplish. The Court has closely scrutinized Schirk’s actions in fulfilling this role. The Court does not find that Schirk’s errors, if any, are so egregious and outrageous that the Court’s conscience is shocked.”
The Schmidts have extensively briefed this issue and have argued that the facts of this case are comparable to many cases where § 1983 liability was imposed and distinguishable from many cases where no liability was found. We hold, however, that the trial court’s analysis of this issue was sound and correct.
The trial court focused on the definition of reckless conduct “as an awareness or knowledge of an ‘obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences.’ Medina, [960 F.2d at] 1496.” Further, the court, citing Collins, 503 U.S. at 127-28, noted the shocking to the conscience standard cannot be met by ordinary negligent conduct, but rather presupposes deliberate wrongful decisions that must be more than an ordinary tort to be actionable.
In the present case, as will be further discussed, we find that Schirk owed no duty to warn Stephanie’s employer of Gideon’s criminal history and dangerous propensities such that liability could be imposed on a theory of negligence. As Schirk’s conduct is not deemed to be negligent, it is not possible for this same conduct to be considered reckless and shocking to the conscience. Although the end result was clearly tragic, the Schmidts have failed to establish that Schirk was aware of an obvious risk so great that' it was highly probable that the attack upon Stephanie would follow. Schirk most definitely did not intend any harm to come to Stephanie or Gideon’s other co-workers. In light of the knowledge he possessed pertaining to Gideon’s conduct during his 7 months of employment at Hamilton’s, Schirk did not proceed in conscious disregard of an obvious danger.
We affirm the trial court’s grant of summary judgment on the § 1983 claims.
Duty — State defendants
The KDOC and Schirk allege that under Kansas case law, they owed no duty to warn of Gideon s criminal history and possible danger to young women. The Schmidts claimed in their petition that Schirk owed a duty to warn Hamilton, Gideon’s employer, of Gideon’s prior crimes, and that the breach of this duty proximately caused their injuries.
The trial court held that because Gideon was a parolee under the direct supervision of Schirk, a special relationship existed such that Schirk had a duty to warn readily identifiable groups of potential victims. Further, the court noted that because the KDOC had adopted an unwritten policy of warning individuals potentially at risk, it was required to administer the policy in an effective manner.
We have repeatedly stated that negligence only exists where there is a duty owed by one person to another and a breach of that duty occurs. In order to recover, one must show a causal connection between a duty breached and an injuiy received. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
“In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. . . . An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. [Citation omitted.] The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based.” Durflinger, 234 Kan. at 488-89.
Generally, in the absence of a “special relationship,” there is no duty to control the conduct of a third party to prevent harm to others. Calwell v. Hassan, 260 Kan. 769, 778, 925 P.2d 422 (1996). A special relationship may exist, however, with persons in charge of one with dangerous propensities or persons with custody of another. C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993). We have not, in any previously reported Kansas case, extended or found a “special , relationship” to exist between one conditionally released from incarceration by mandatory operation of law and the State or its duly authorized employee who is responsible to supervise such individual. We first consider whether we should do so under the facts of this case.
The Restatement (Second) of Torts § 315-20 (1965) sets forth the basic rules regarding liability for the conduct of third persons: “§ 315 General Principle
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Comment c to § 315 provides:
“The relations between the actor and a third person which require the actor to control the third person’s conduct are stated in §§ 316-319. The relations between the actor and the other which require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320.”
Sections 316, 317; and 318 of the Restatement relate to the duty of a parent to control the conduct of a child, the duty of a master to control the conduct of a servant, and the duty of a possessor of land to control the conduct of a licensee, respectively, and none are applicable to our case.
Section 319 of the Restatement reads:
“§ 319. Duty of Those in Charge of Person Having Dangerous Propensities “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
Section 320 of the Restatement requires those taking custody of a person to use reasonable care to control the conduct of. third persons so as to prevent them from harming the person in custody. This section does not apply to the facts of the present case, as Stephanie clearly was never in the custody of the KDOC or Schirk.
Section 319 is the only section remotely applicable to our situation. However, we find neither Schirk nor the KDOC had charge of Gideon to the extent necessary to fall within this section. The Comment to the Restatement (Second) of Torts § 319 states:
“Comment:
"a. The rule stated in this Section applies to two situations. The first situation is one in which the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. The second situation is one in which the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.
“Illustrations:
“1.A operates a private hospital for contagious diseases. Through the negligence of the medical staff, B, who is suffering from scarlet fever, is permitted to leave the hospital with the assurance that he is entirely recovered, although his disease is still in an infectious stage. Through the negligence of a guard employee by A, C, a delirious smallpox patient, is permitted to escape. B and C communicate the scarlet fever and smallpox to D and E respectively. A is subject to liability to D and E.
“2. A operates a private sanitarium for the insane. Through the negligence of the guards employed by A, B, a homicidal maniac, is permitted to escape. B attacks and causes harm to C. A is subject to liability to C.”
In refusing to grant summary judgment, the trial court primarily relied on two cases from other jurisdictions, Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986), and Rieser v. District of Columbia, 563 F.2d 462 (D.C. Cir. 1977), to support the belief that a special relationship exists between a parole officer and a parolee so that a duty is owed to protect third persons. We first determine if the trial court correctly concluded Schirk was “in charge of” Gideon to the extent necessary to form a § 319 special relationship and, if it did, whether the duty to protect third parties extends to and includes a duty to warn either the public at large or a limited class of persons having a current or previous involvement with the parolee.
We utilized § 319 in Kansas in Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), where we found that the Kansas State Peni tentiary owed a duty to warn local law enforcement officers of the escape of armed and dangerous prisoners who had been in the charge of the penitentiary. This was a prison escape case, .and we had no problem holding the State was in charge of seven prison escapees, all of whom were allegéd to have been serving life terms after convictions for murders in various degrees. This is a far cry from imposing like obligations on the State as to every prisoner released from incarceration under parole or conditionally released by mandatory operation of law after, serving a sentence less good time credits.
Beck v. Kansas Adult Authority, 241 Kan. 13, 735 P.2d 222 (1987), a negligence case'involving a person on conditional release who. committed multiple murders at the University of Kansas Medical Center, refrained from addressing the question of whether a duty to warn or control existed and rendered judgment against plaintiffs by directly addressing the question of whether the adult authority was entitled to immunity under the KTCA. Thus, the question of whether § 319 applies to those on parole such that a duty exists has not previously been directly addressed in this state.
The Alaska court in Neakok, 721 P.2d at 1126, relied upon by the trial court, determined that a parole officer maintained súfficient control over a parolee to create a special relationship such that a duty was owed by the State, “both because of its increased ability to foresee the dangers the parolee poses and because of its substantial ability to control the parolee.” The Alaska court compared the relationship to that in Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976) (psychotherapist and patient); and Semler v. Psychiatric Institute of Washington, D.C., 538 F.2d 121 (4th Cir.), cert. denied 429 U.S. 827 (1976) (state hospital and patient), and held the relationship between the State and a parolee was comparable to justify imposition of a duty to control his or her conduct. Neakok is factually different in that it involved the return of a parolee to a remote village without police officers or alcoholic counseling. It is not sufficient authority, for the result reached by the trial court in the present case.
Although Rieser, 563 F.2d 462, did involve a parole officer and his parolee, the opinion did not comment on the application of the “special relationship” required in order for § 319 to apply. The Rieser court found that a parole officer owed a duty to warn potential employers of a parolee’s criminal history and to place controls upon the type of work he or she could engage in. The parole officer in Rieser assisted a convicted rapist in obtaining employment as a maintenance worker at an apartment complex. Rieser was subsequently raped and strangled by the parolee, who had access to her apartment. On a referral form, the officer listed only that the parolee had been convicted of robbery, failed to mention that he was a suspect in three murders which had occurred at the apartment community he had previously worked at, and placed no restrictions upon the type of work appropriate to him. Due to these distinguishable facts, Rieser is not persuasive authority in this instance.
The most helpful case to the Schmidts’ arguments as to the existence of a “special relationship!’ under § 319 is Taggart v. State, 118 Wash. 2d 195, 223, 822 P.2d 243 (1992), where it was held that “a parole officer takes charge of the parolees he or she supervises despite the lack of a custodial or continuous relationship.” While this had the effect of imposing liability under § 319, we reject this overbroad construction which escalates the State’s responsibility to that of the virtual guarantor of the safety of each and every one of its citizens from illegal and unlawful actions of every parolee or person released from custody under any type or kind of supervision.
The better-reasoned and more logical approach is that taken in Fox v. Custis, 236 Va. 69, 75, 372 S.E.2d 373 (1988), which held that state' parole officers did not take charge or exercise control over a parolee within the meaning of § 319, giving rise to any “special relationship.” The Virginia Supreme Court held:
“The relationship between the parolee and officer is usually continuing because parole normally is for an extended period of time. But to ‘supervise and assist’ during this period does not mean to assert custody in the sense that the parolee is in the personal care and control of the officer. While the record does not show the.terms and conditions of Mason’s parole, parolees ordinarily are essentially free to conduct their day-to-day affairs, adhering to specific rules and reporting certain activities to the parole officer as they occur or are planned. The applicable statute does not contemplate continuing hourly or daily dominance and dominion by a parole officer over the activities of a parolee.
“Therefore we hold that the defendants did not take charge of or exercise control over Mason within the meaning of accepted rules of tort law articulated in Restatement §§ 315(a) and 319.” 236 Va. at 75.
This same logic and rale has been utilized by several other states. See Small v. McKennan Hosp., 403 N.W.2d 410 (S.D. 1987) (parole officer for parolee placed on maximum supervision status did not take charge of parolee so as to impose liability upon officer when parolee abducted woman from parking lot and raped and murdered her); Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985) (probation officer did not take charge of probationer so as to establish duty to parents of child injured in auto accident by intoxicated probationer who had known propensities to drive while drank); see also Seibel v. City and County of Honolulu, 61 Hawaii 253, 602 P.2d 532 (1979).
In Calwell v. Hassan, 260 Kan. at 780, we recognized that we have only imposed a duty to control the conduct of third persons pursuant to § 315 in situations involving dangerous persons in a custodial setting. Furthermore, we have previously rejected application of the theoiy to create a duty on the part of a psychiatrist to control a patient or warn others of his or her dangerous propensities, finding no special relationship, in Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995).
We hold no special relationship existed between the State defendants and Gideon which imposed a duty to control Gideon s conduct to prevent him from causing harm to other persons or property.
However, even if we decided that a special relationship was present between a parole officer and parolee and adopted the reasoning of Taggart, 118 Wash. 2d at 258, or of Neakok, 721 P.2d at 1128-29, we would still need to address whether the duty to control extends to a duty to warn potential victims.
Neakok relied on California decisions in concluding that a parole officer owed a duty to warn the members of the small community where the parolee resided of his dangerous tendencies. Cases from California, however, have found no duty to warn in a situation much more egregious than the one in the present case. In Thompson v. County of Alameda, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980), the California Supreme Court determined there was no relationship between a county which had granted an 18-year-old juvenile temporary leave into his mother’s custody and the murdered victim of the juvenile. The court held there was no duty to warn the local police, the neighborhood parents, or the juvenile’s mother that the juvenile had indicated that if released, he would take the life of a young child residing in the neighborhood.
The court noted several factors it considered when deciding whether a duty should be imposed, including
“ ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citations omitted.] When public agencies are involved, additional elements include ‘the extent of [the agency’s] powers, the role imposed upon it by law and the limitations imposed upon it by budget.’ [Citations omitted.]” Thompson, 27 Cal. 3d at 750.
The Thompson court distinguished prior cases where it had imposed a duty to warn, Johnson v. State, 69 Cal. 2d 782, 73 Cal. Rptr. 240, 447 P.2d 352 (1968), and Tarasoff, 17 Cal. 3d 425, on the ground that in each of those cases, a relationship existed between the State and the plaintiff-victim, not because of the relationship between the State and the third party. In Thompson, as in the present case, there was no special relationship between the State and the victim, and the court refused to impose blanket liability on the State for failing to warn. The court stated that parole and probation release is an integral and continuing part of its correctional system, serving the public by rehabilitating offenders and returning them to productive positions in society, such that “‘each member of the general public who chances to come into contact with a parolee bear[s] the risk that the rehabilitative effort will fail.’ ” Thompson, 27 Cal. 3d at 753.
Despite the fact there was an actual threat of harm in Thompson, the court believed there were significant practical obstacles in the imposition of a duty to warn, particularly recognizing that such a warning “may also negate the rehabilitative purposes of the parole and probation system by stigmatizing the released offender in the public’s eye,” 27 Cal. 3d at 755, and “might substantially jeopardize rehabilitative efforts both by stigmatizing released offenders and by inhibiting their release.” 27 Cal. 3d at 757. The court believed that even warning the parents of young children in the neighborhood would be a significant drain on resources and would not likely have been any more effective.
Another California case refused to impose a duty to warn in circumstances somewhat similar to the present case. In J.A. Meyers & Co. v. Los Angeles County Probation Dept., 78 Cal. App. 3d 309, 144 Cal. Rptr. 186 (1978), the court found no duty to warn a probationer’s employer that the probationer was a convicted embezzler. Noting that the defendants did nothing to help the probationer acquire the job, the court found no relationship existed such that the probation department should have revealed the probationer’s status and risked ruining the rehabilitative effort.
It is important to remember that the present case does not involve a situation where any specific threat of harm had been directed against any certain individual or ascertainable group. See, e.g., Rogers v. Dept. Of Parole & Comm. Corr., 464 S.E.2d 330 (S.C. 1995).
In Kansas, we have addressed a duty to warn in only a few cases, all factually distinguishable from the present case. In Cansler, 234 Kan. 554, Syl. ¶ 3, we recognized a legal duty to warn local law enforcement authorities and area residents of major escapes of dangerous criminals. We did, however, point out that the duty to act reasonably was commensurate with the risk involved.
The situation in Cansler should be compared to that in Jarboe v. Board of Sedgwick County Comm’rs, 262 Kan. 615, 938 P.2d 1293 (1997). Although we refused to decide Jarboe on the ground that no duty was owed because it had not been expressly raised by the parties, we recognized that the case could well have been disposed of on that basis. 262 Kan. at 623. In Jarboe, the plaintiffs never alleged that any common-law duties existed to confine the juvenile offender and warn of his escape beyond those they claimed were created by the personnel policies of the defendants. Clearly, the duty found to exist so strongly in Cansler diminished considerably under the factual scenario of Jarboe.
Our appellate courts have also examined whether a duty to warn and protect was owed in several other custodial settings, including C.J.W., 253 Kan. 1; Cupples v. State, 18 Kan. App. 2d 864, 861 P.2d 1360 (1993); and Washington v. State, 17 Kan. App. 2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992) . The duty, however, in each of these cases was premised upon Restatement (Second) of Torts § 320, the duty owed to one taken into custody, rather than upon § 319. Further, in Nero v. Kansas State University, 253 Kan. 567, 583, 861 P.2d 768 (1993), the court focused not on a duty owed pursuant to § 319 to control persons with known dangerous propensities, but on the University’s relationship as a landlord with its tenants such that it owed a duty to use reasonable care for their protection. Thus, the duty to warn and protect discussed in cases such as these is not applicable to the present situation, where absolutely no special relationship existed between the State and Stephanie.
In the present case, the plaintiffs argue that female employees of Hamilton’s were a readily identifiable potential class of victims such that they should have been warned. However, other classes of potential victims could also be identified, such as those living in Gideon’s building or neighborhood, women Gideon dated, and regular patrons at bars Gideon frequented.
We further hold that even if a special relationship existed to control the conduct of Gideon, the KDOC and Schirk owed no duty under § 315 to warn Stephanie about Gideon’s dangerous propensities in the absence of an express threat.
The trial court ruled that even if no special relationship existed such that the State defendants owed a duty to Stephanie to warn her of Gideon’s criminal history, the unwritten notification policy created such a duty. The trial court held: “Moreover, as the Court observed in its Finding of Fact, the DOC had adopted an unwritten policy of warning individuals potentially at risk from parolees. After adopting this policy, it then became incumbent upon the DOC to administer this policy in an effective manner.” The court later went on to state: “Moreover, it can be argued that the DOC’s adoption of the unwritten warning policy created a duty to those potentially and identifiably at risk. Accordingly, an alleged breach of said duty would certainly mitigate against the discretionary function exception.”
In light of recent decisions by this court, this portion of the trial court’s ruling is clearly erroneous'. Either Schirk and the KDOC owed a duty due to the fact that they had a special relationship with Gideon, or they did not. No personnel policy, particularly not an unwritten one, can create this duty.
In Jarboe, 262 Kan. 615, Syl. ¶ 1, we stated that prior case law permitting a duty to be based upon the failure to follow written personnel policies had been superseded by the legislative enactment of K.S.A. 75-6104(d). Liability can no longer be established by the failure to follow such a policy unless an independent duty of care is owed to the injured party. 262 Kan. 615, Syl. ¶ 1. In Jarboe, the plaintiffs argued that the State defendants owed a duty in light of their failure to follow personnel policies regarding the placement and control of a juvenile offender placed in a boys’ home. We found that 75-6104(d) barred imposition of such liability.
Consistent with this result and holding is our recent case of Woodruff v. City of Ottawa, 263 Kan. 557, 566, 951 P.2d 953 (1997), where we also rejected an argument that an unwritten policy had been created such that a police officer owed a duty to protect the plaintiffs from the conduct of a third party.
Clearly the idea that the KDOC’s unwritten policy in and of itself created a legal duty on the part of Schirk and the KDOC to protect Stephanie is not viable. The holding of the trial' court which so implies is not correct.
Immunity under the KTCA
Having determined that the KDOC and Schirk owed no duty to Stephanie to warn of Gideon’s potential dangerousness, we need not base our decision on whether the KTCA provides immunity from the Schmidts’ claims. However, we easily find that Schirk’s conduct in failing to disclose Gideon’s criminal history to his employer falls within the discretionary function exception of K.S.A. 75-6104(e).
Although governmental entities do not have discretion to violate a legal duty, we have not held that the existence of any duty deprives the State of immunity under the discretionary function exception. If such were the case, K.S.A. 75-6104(e) could never apply in a negligence action, for in order to recover for negligence, a plaintiff must establish the existence of a duty. We explicitly rejected such an argument in Jarboe, 262 Kan. at 631.
In Beck, 241 Kan. at 30-31, we extensively discussed the history of the discretionary function exception in Kansas, which need not be reiterated here. In Hopkins v. State, 237 Kan. 601, 610, 702 P.2d 311 (1985), we stated:
“Discretion implies the exercise of discriminating judgment within the bounds of reason. [Citation omitted.] It involves the choice of exercising of the will, of determination made between competing and sometimes conflicting considerations. Discretion imparts that a choice of action is determined, and action should be taken with reason and good conscience in the interest of protecting the rights of all parties and serving the ends of justice."
In both Cansler, 234 Kan 554, and C.J.W., 253 Kan. 1, we held that the duty to confine prisoners or control their behavior and the duty to warn others about their dangerous propensities were non-discretionary. Those duties were imposed by law and were ministerial. We also held in Allen v. Kansas Dept. of S.R.S., 240 Kan. 620, 731 P.2d 314 (1987), that the negligent performance of a ministerial act is not within the discretionary function exception, even if the decision to perform the act is.
However, we recently decided in Woodruff, 263 Kan. 557, that the decision whether to take an intoxicated individual into custody is discretionary and entitled to immunity. In Bolyard, 259 Kan. 447, 912 P.2d 729 (1996), we ruled that SRS’s decision to tern porarily place children with their mother was entitled to immunity under the discretionary function exception. In G. v. State Dept. of SRS, 251 Kan. 179, 833 P.2d 979 (1992), we held the removal of a child from a foster care home by SRS was within the discretionary function exception.
In Beebe v. Fraktman, 22 Kan. App. 2d 493, 921 P.2d 216 (1996), the Court of Appeals held that the decision whether to open a file for investigation of allegations of child abuse is a discretionary function. That court also held in Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 931 P.2d 26 (1997), that the manner of conducting an investigation into a charge of child abuse is a discretionary function.
In jarboe, 262 Kan. 615, we discussed how the placement decision regarding a juvenile offender was exactly the type of discretionary decision that the KTCA was intended to protect. We further quoted from Beck, 241 Kan. at 36-37:
“We do not believe that the legislature, in enacting the Kansas Tort Claims Act, intended to subject parole or probation decisions of the authorities, whether the Kansas Adult Authority or the sentencing judge, to litigation in order to determine whether the Authority or judge turned every tap and jumped through every hoop in arriving at a decision to place an inmate on parole or to impose conditions on a conditional release. It is these discretionary functions of state agencies or employees which the legislature intended to place beyond the pale of tort litigation.
“The possibility of harm to third persons exists every time a prisoner convicted of violent crime is released from custody and placed back into society, yet the time always arrives when release must be effected. A decision as to the imposition of conditions, if any, must be made. Such a decision involves the exercise of great discretion. Boan had to be released, under state law. Whether conditions might have been imposed which would have prevented this catastrophe is an open question. Hindsight, always better than foresight, indicates some conditions might have had some effect. But such a decision, made now, would merely second-guess the parole authority, the agency in whose hands the legislature entrusted the discretion.”
In the present case, the discretionary function exception likewise applies. No duty was imposed by law upon Schirk to notify the employers of his parolees of their criminal history, even had we found a special relationship existed between Schirk and Gideon.
Furthermore, in deciding whether to inform Hamilton of Gideon’s criminal history, Schirk was required to balance society’s in terest in rehabilitating Gideon by ensuring he remained employed with the potential danger to third persons that he would reoffend. He had to weigh various risk factors, including Gideon s past and present conduct, in determining the danger posed to others. Schirk had no knowledge of any particularized threat to any of Gideon’s co-workers, and as time passed, Schirk may have been less likely to believe there was a danger to such persons.
The Schmidts emphasize that Schirk admitted he was aware that Gideon’s female co-workers were at high risk of danger, but still failed to notify Hamilton of Gideon’s criminal history pursuant to the KDOC’s third-party-at-risk policy. However, Schirk clearly stated that he did not believe the waitresses to be at such risk that they required notification under the policy. This decision is exactly the type which requires discretion, even if under current law or policy such discretion has been removed and employers are now required to be notified.
In light of what we have previously stated, we need not discuss utilization of the exception of K.S.A. 75-6104(d) to dispose of the Schmidts’ claims against Schirk and the KDOC, nor do we need to consider whether the police protection exception of 75-6104(n) also applies to bar the Schmidts’ claims.
The trial court’s denial of summary judgment in favor of the KDOC and Schirk is reversed.
Duty — Hamilton defendants
The Hamilton defendants argue the trial court erred in concluding they owed a continuing duty to Stephanie which still existed at the time of her death, after she had ceased working at their business of her own volition. They emphasize that Gideon caused Stephanie’s injuries and death during a time in which he was not providing any services for Hamilton’s, at a place completely removed from its premises, and with absolutely no nexus to the business. They claim the logical effect of the trial court’s conclusion, if allowed to become the law of Kansas, “would essentially hold an employer liable to any former employee or customer for the conduct of an employee without regard to the relationship among the parties, the passage of time, the location, or any nexus to the employer’s business.”
Hamilton’s further cites our recent case of Beshears v. U.S.D. No. 305, 261 Kan. 555, 930 P.2d 1376 (1997), to argue there exists no special relationship upon which a duty to control Gideon’s conduct may be based. Hamilton’s contends the tragic events of this case were not foreseeable as a matter of law and asks us not to accept the broad and all encompassing “but for” argument that is contrary to our accepted principles of causation.
The Schmidts do not contend the Hamilton defendants are liable under the respondeat superior doctrine, but rather that Hamilton’s negligence lies in hiring and retaining Gideon, whom Hamilton’s should have known had dangerous propensities. They further contend it is a juiy question whether the negligent hiring and retention of Gideon was the proximate cause of the attack upon Stephanie. The Schmidts rely in part on the Missouri case of Gaines v. Monsanto Co., 655 S.W.2d 568 (Mo. App. 1983), and a string of Kansas cases dealing with the issue of negligent hiring and retention of unfit or incompetent employees.
In reaching its decision, the trial court relied on the fact that Kansas has long recognized a claim premised upon the negligent hiring and retention of an employee. Further, the court noted that employers are required to provide suitable and competent fellow servants, citing Jackson v. City of Kansas City, 235 Kan. 278, 304, 680 P.2d 877 (1984). The trial court distinguished this duty both from respondeat superior liability and from the duty to control the conduct of third parties set forth in the Restatement (Second) of Torts § 315, discussed in the claims against the KDOC and Schirk. The court held that the duty was abrogated when Hamilton negligently hired and continued to retain Gideon as an employee; thus, it did not matter that the injuries occurred after Stephanie was no longer an employee, at a time not during business hours, and at a place completely apart from the business premises.
The trial court found the factual situation to be similar to Gaines, where the plaintiffs claimed the defendant employer had been negligent in hiring and retaining an employee with dangerous proclivities who had murdered their daughter in her apartment. The em ployee was placed in a position where he would come into contact with female employees and learn their names and addresses. The Gaines opinion stated it was mindful of the adverse effect that recognizing such a cause of action would have on employment practices, but broadly held that matters of foreseeability and proximate cause were jury questions. The court held: “Generally it is sufficient to constitute proximate cause that the negligence charged was the efficient cause which set in motion the chain of circumstances leading up to the injury.” 655 S.W.2d at 571.
In Gaines, the Missouri Court of Appeals did recognize in a footnote that “plaintiffs would not make a prima facie case of liability solely by proving that the employer actually knew of the employee’s criminal record. Liability would depend, among other things, on the nature of the criminal record and the surrounding circumstances. See Evans v. Morsell, 395 A.2d at 484.” 655 S.W.2d at 571 n.2. Additionally, another Missouri Court of Appeals panel distinguished Gaines in Hollingsworth v. Quick, 770 S.W.2d 291, 294 (Mo. App. 1989), where it was said:
“[B]ut in that case the plaintiff alleged not only that the employee had convictions for rape and assault, but the employer knew the employee had made improper and offensive advances toward fellow employees and yet did nothing when in possession of actual knowledge that retention of the employee created a potential hazard to those with whom he came in contact.”
The present case is also distinguishable from Gaines in that here, Gideon had been described as a very polite, dependable, soft-spoken, likeable, and trustworthy employee. Hamilton’s also knew of no improper or offensive behavior directed at fellow employees.
The specific finding of the trial court in the present case was that a duly existed at the time Stephanie was employed at Hamilton’s to hire and retain suitable co-employees. The trial court held that whether the duty was breached and whether any alleged breach resulted in a foreseeable murder was a question for the jury.
The trial court looked to Honeycutt v. City of Wichita, 251 Kan. 451, Syl. ¶ 8, 836 P.2d 1128 (1992), where we said:
“In a negligence action, summary judgment is proper if the only questions presented are questions of law. To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. Whether a duty exists is a question of law. Whether the duty has been breached is a question of fact.”
The Schmidts do not contend that a “special relationship” exists as we have previously discussed herein in relation to the claims made against the State. They are not asserting that Hamilton’s had a duty to control Gideon to prevent harm to Stephanie. Rather, their contention is that Hamilton’s had a duty not to negligently hire and retain Gideon and that this duty was breached, thereby causing their injuries.
We have, in Kansas, broadly stated that
“a master may be hable for injuries to a third person which are the result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant.” Balin v. Lysle Bishel Post No. 68, 177 Kan. 520, Syl. ¶ 4, 280 P.2d 623 (1955).
This statement, however, specifically relates to incompetence or unfitness, and the underlying facts of the string of cases where it has been stated relate mainly to acts occurring at the employer’s business location or during the conduct of the employer’s business.
Balin involved injuries to a hotel employee who was damaged by the negligent discharge of a firearm by another hotel employee who had a prison record, worked on firearms on the premises, and at times engaged in “horseplay” around the lobby. Although cases were referred to relating to a master’s negligence in maintaining a servant’s employment, the evidence was held not to show that the servant was incompetent or unfit, and the master was not liable in damages to one servant for injuries inflicted on him by the act of a fellow servant. Viewed factually and focusing on the result, Balin provides no persuasive authority for the Schmidts’ arguments in our case.
Murray v. Modoc State Bank, 181 Kan. 642, 313 P.2d 304 (1957), involved a suit against a bank by a customer who was assaulted by the bank’s employee, Breithaupt. Murray had a bad relationship with Breithaupt and attempted to transact his business by mail. Breithaupt went to Murray’s home and demanded that checks be deposited as he directed and that a property settlement be furnished. When Murray declined, Breithaupt pulled him off his porch, punched him, threw him to the ground, and inflicted injuries on him.
In allowing recovery under these circumstances, the opinion spoke of protecting a patron invitee and stated: “The patron was as much within the portals of the bank as if he stood before the cashier s window.” 181 Kan. at 649. The doctrine of respondeat superior was not involved, and the issue was whether the bank was negligent in retaining Breithaupt, who had propensities toward violence. Cases were cited where employees had assaulted other parties or co-workers and these facts were known to the employer. See Zamora v. Wilson & Co., 129 Kan. 285, 282 Pac. 719 (1929) (finding no claim for tortious act against fellow employee where act not done in the promotion of the master’s business or as a part of the employee’s duties); Gabbard v. Sharp, 167 Kan. 354, 205 P.2d 960 (1955) (holding waitress not allowed to recover for assault by intoxicated fellow employee because the employee had stepped beyond the scope of his employment and was engaged in apersona! venture of his own, although waitress also filed no brief and did not support her case on appeal).
The Murray opinion also cited Kiser v. Shelly Oil Co., 136 Kan. 812, 814, 18 P.2d 181 (1933), where a jury found an employer negligent “by maintaining incompetent help and insufficient door equipment.” A door had been slammed by an employee against a customer at a filling station, breaking the glass and injuring the customer. In concluding that a cause of action was alleged against the Modoc State Bank on a negligence theory, this court held that an employee “who is a quarrelsome and dangerous person is an ’unfit’ person within the meaning of that term.” 181 Kan. at 654.
Once again, Murray was a case where the location and time of the assault played a part in holding the employer hable. In the present case, Gideon’s conduct while at Hamilton’s was generally positive, and there existed no evidence of quarrelsome or dangerous behavior directed at fellow employees or customers.
Another case in the sequence is Stricklin v. Parsons Stockyard Co., 192 Kan. 360, 388 P.2d 824 (1964), where liability attached to acts committed on the employer’s premises during business hours where an employee was given to playing pranks involving physical force upon customers. The employee had lifted Stricklin’s feet while he was seated on the top of a cattle pen, causing him to fall on a concrete floor and resulting in injury.
Stricklin was not an intentional infliction of injuries case, and while the doctrine of respondeat superior was not involved, it was alleged the employers knew or had reason to know both of the employee’s propensities for over 1 year, and of eight separate acts of “horseplay” involving physical force upon persons lawfully in and around the stockyards. Our opinion held: “[Gjiving the allegations all reasonable inferences, we think it must be said that [the employee] was an incompetent and unfit employee retained by [the employers] after they knew or had reason to know of his propensities.” 192 Kan. at 367.
In Stricklin we again have a fact situation where the conduct of the employee giving rise to the alleged negligent act occurred on the business premises during business hours and involved numerous acts of improper behavior well known to the employers. This is factually very different from the facts we face in our case.
Next in the chronological order of our Kansas cases is Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 307, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978). Here, the Court of Appeals limited the broad statements from Stricklin and Murray and approved the following instruction:
“[T]here must be some causal relationship between the dangerous propensity or quality of the employee, of which the employer has or should have knowledge, and the injuries suffered by the third person; the employer must, by virtue of knowledge of his employee’s particular quality or propensity, have reason to believe that an undue risk of harm exists to others as a result of the continued employment of that employee; and the harm which results must be within the risk created by the known propensity for the employer to be liable.”
In Hollinger, the plaintiff was selling and delivering newspapers to patients and employees in the hospital when a janitor, claiming to be playing a practical joke, approached her from behind and attempted to remove a newspaper from her bag, jerking it in such a manner that she was injured. The instruction referred to above was coupled with one that stated that in order for plaintiff to re cover, she must prove the employee was incompetent or unfit and that the defendant was negligent in employing and retaining the employee when the defendant knew or should have known of such incompetence or unfitness. While two causes of action were maintained, one under the doctrine of respondeat superior and one for failing to exercise reasonable care in the selection, employment, training, control, and retention of an employee, this case was deemed fundamentally different from Balin, Murray, and Stricklin, as follows:
“In Stricklin, the employer had or should have had knowledge of its employee’s dangerous inclination toward pranks and practical jokes. In Murray, the bank had knowledge of its managing officer’s violent dislike for plaintiff and his inability to control his emotions. In this case, defendant had knowledge that Rome was not doing his work properly, had displayed a lack of interest in his job, and that the haphazard way in which he did work and left his equipment around was dangerous to patients and other employees. The resulting situation is nearer that in Balin since there as here defendant had little or no knowledge of its employee’s propensity for dangerous ‘horseplay.’ ” 2 Kan. App. 2d at 306-07.
Although the Hollinger case was submitted to a jury and resulted in a verdict for the defendant, the injury did occur, once again, on the employer’s premises during normal hours and was caused by an employee whose work was unsatisfactory.
Plains Resources, Inc. v. Gable, 235 Kan. 580, 586, 682 P.2d 653 (1984), is a factually interesting case of a “big, wild, reckless, rough, unkept” employee who sabotaged one of plaintiff’s oil wells by plugging the well. Both the theories of respondeat superior and negligent hiring and retention of an incompetent or unfit employee were discussed as the basis for imposing liability on the employer as well as for awarding punitive damages. However, the actions here again took place at the place of employment, were directly associated with the employer’s business, and did not occur at a social event totally removed from the employer’s business or purposes.
Finally, we have our most recent decision of Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587 (1991), which involved the sexual molestation of a special education child by an employee retained by a school district to transport students enrolled in the program. Syllabus ¶ 1 broadly states:
“When a third party asserts a negligent retention and supervision claim against an employer, liability results not because of the employer-employee relationship, but because the employer had reason to believe that an undue risk of harm to others would exist as a result of the employment of the alleged tortfeasor. The employer is subject to liability only for such harm as is within that risk. If, therefore, the risk exists because of the quality of the employee, there is liability only to the extent that the employer had reason to believe would be likely to cause harm. However, it is not necessary that the precise nature of the injury alleged by the third-party plaintiff would have been foreseen by the employer.”
There were six separate issues in this complicated case, but of interest here was the sufficiency of the evidence to prove that the school district and the employer knew or should have known that an undue risk of harm would exist because of the employee’s employment. The instructions were much like those approved of in the Hollinger case, but carried a heightened duty in stating that “all persons entrusted with children have a special responsibility to supervise their charges.”
The cause of action was again based on the actions of an employee engaged in his employment and at the normal place where his employment services were rendered. When viewed in its entirety, the case does not provide a sufficient basis for us to impose upon an employer the obligation to be legally liable and responsible for the illegal acts of employees which occur at social settings away from the place of employment or to former co-workers who no longer remain in the employ of the employer. Such a result has the legal effect of making an employer the virtual insurer of the safety of former co-workers for any tortious or criminal action which an existing or even former employee may perpetrate.
In each of the Kansas cases upon which liability of the employer was predicated, the existence of a duty to the injured party was based on actions against a customer or co-worker which took place on the working premises during the time employment services were normally rendered. In none of such cases was the employee not acting in the course of employment, nor was the injurious ac tion removed from the employer’s premises or without any nexus to the employer’s operations.
None of the Kansas cases cited should be unduly extended to find that a duty comes into existence whereby an employer must ascertain the detailed history of every employee, whether criminal or not, and terminate the employment of an individual who is performing acceptable services and is clearly not unfit or incompetent, but who does pose some degree of risk due to previous actions. This case involves a tragic set of circumstances, but if a duty is found to exist here, as a matter of law, the liability of employers is unrealistically increased and the obligations of an employer become virtually unlimited.
What we have previously said severely limits our reliance on the authority of the Missouri Court of Appeals’ opinion in Gaines, 655 S.W.2d 568, and we specifically decline to follow it as the law of Kansas. It is factually different and unduly broad in its scope and statements.
Cases can be found from other jurisdictions to support the arguments of both the Hamilton defendants and the Schmidts. While we will not attempt to compare or distinguish such cases, we believe the better reasoned view is found in cases such as Connes v. Molalla Transport System, Inc., 831 P.2d 1316 (Colo. 1992) (recognizing an action for negligent hiring, but finding employer had no legal duty to conduct independent investigation into trucker’s nonvehicular criminal background in order to protect a member of the public from a sexual assault committed in the course of employment), and F & T Co. v. Woods, 92 N.M. 697, 594 P.2d 745 (1979) (holding that in negligence action brought by rape victim against employer of alleged rapist, it was not enough that victim prove that employer was negligent in hiring or retaining alleged rapist; in addition, victim had to prove that negligent hiring or retention of alleged rapist was foreseeable and proximate cause of the rape). See generally Annot., Employer’s Knowledge of Employee’s Past Criminal Record as Affecting liability for Employee’s Tortious Conduct, 48 A.L.R.3d 359 and supplement thereto.
The trial court erred in finding that a duty existed on the part of the Hamilton defendants to Stephanie upon which a cause of action could be premised.
Due to the result we reach, we need not discuss the questions of proximate cause or foreseeability.
The trial court’s granting of summary judgment to the KDOC and Schirk on the 42 U.S.C. § 1983 claim is affirmed. The trial court’s denial of the remaining summary judgment motions of all of the defendants is reversed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by Robert Bennett and Linda Bennett, husband and wife, from judgments entered against them and in favor of Bruce Hawkinson for a breach of a third-party beneficiary claim concerning the Master Franchise Agreement, as well as claims for tortious interference with Hawkinson’s Sales Franchise Agreement, tortious interference with his prospective business relationships, breach of fiduciary duty, and punitive damages. There are at least 14 issues alleging, among others, claims of erroneous jury instructions, juror misconduct, sufficiency of evidence, and other evidentiary issues.
Communications World International, Inc., (CWI) is a Denver-based telephone interconnect company. Robert and Linda entered into sales franchise agreements with CWI in 1982 and a second sales franchise agreement in 1983. On March 1, 1986, CWI and Robert and Linda entered into an additional agreement called a “Master Franchise Agreement” (Agreement). The first page of this Agreement referred to CWI as “the Franchisor” and Robert Bennett as “the Master Franchisee.” Both Robert and Linda signed this Agreement, however, as “the parties hereto,” under the lines provided for the signatures for “Master Franchisee.” Both Robert and Linda consistently signed correspondence for the Master Franchisee, as exemplified by a letter dated November 4,1991, to David Hunt, Chairman of CWI. This letter, written by Robert, referred to himself and Linda acquiring the Master Franchise for Kansas City. Robert wrote another letter to Hunt, stating that “Linda and I have met the requirements for productivity, commitment in time, and ethical behavior in the operation of our franchises and Master Franchise.”
In addition to operating as the Master Franchisee, Robert and Linda were also sales franchisees of CWI. Linda operated Communications World of Kansas City, Southwest, Inc. (Southwest), and Robert operated Communications World of Kansas City, West, Inc. (West). Two additional franchises were added in the Kansas City area after Robert and Linda began operating Southwest and West. Stormy Bennett, Robert’s brother, operated Communications World of Kansas City, North, and Dennis McKee, a friend of Robert’s, operated Communications World of Kansas City, Southeast.
Article 9(c) of the Master Franchise Agreement established between CWI and Robert and Linda provides:
“Master Franchisee shall be the exclusive selling party in the areas assigned to it. The Master Franchisee shall have the right to establish Sales Franchisees in the area assigned to it. ... All payments and royalties will be made to the Master Franchisee and in turn the Master Franchisee will be responsible for making payments and royalties to the Franchisor. The franchise fee payable by the Sales Franchisee will be paid to the Master Franchisee and no royalties are due on receipt of that amount.”
Section (9)(c) also states:
“The Master Franchisee is encouraged to recruit salespeople who can develop to become Sales Franchisees, but the activities of the salespeople must not detract from the results of the Sales Franchisees nor hinder the Sales Franchisees from generating sales for their own account. The Master Franchisee will be responsible for insuring that conflicts do not arise between expansion and the rights of the Sales Franchisees.”
Article 7 of the Master Franchise Agreement also provides language pertinent to this case:
“Obligation of the Master Franchisee. The Master Franchisee agrees as follows:
a. The Master Franchisee agrees to supply customer training when necessary.
b. The Master Franchisee agrees to supervise the customer list and to assure good referrals.
c. The Master Franchisee agrees to maintain suitable office space for the Business Telephone Center (B.T.C.). The B.T.C. will provide administrative and marketing support for the Master Franchisee and for those Franchises that are established in the Master Franchise area. The function and workings of the B.T.C. are as laid out in the Franchisor’s Policies and Procedures Manual, a copy of which the Master Franchisee receives at the signing of this agreement.”
On June 1,1988, Hawkinson and CWI entered into a Sales Franchise Agreement. Hawkinson paid $10,000 as an initial franchise fee. Article 5 of the Sales Franchise Agreement provides that “[i]n the event a Master Franchise is established incorporating the Franchisee’s sales area, the Franchisee will order equipment through, and remit payments and reports to the Master Franchise but all of the Franchisees rights pursuant to this Agreement will continue to be upheld by the Franchisor.” Article 7(c) of the Sales Franchise Agreement delineates that “[t]he Franchisee agrees to maintain a gross sales figure of Twenty Thousand Dollars ($20,000.00) per month, after the initial ninety (90) days of operation of the franchise.” Article 7(f) and 7(g) further describe the relationship between Hawkinson, as sales franchisee, and Robert and Linda as Master Franchisees:
“f. The Franchisee will provide to the Franchisor a monthly accounting of all business transacted and will pay to Franchisor the royalty fee applicable to the previous month’s cash receipts. The copies of the detailed accounting sheets and records accompanied by the royalty fee shall be received by the Franchisor by the 10th of the month following the month the receipts are collected. If a Master Franchise is established for the area in which the Franchise operates, the Franchisee will be responsible for supplying the Master Franchise the detailed account records and paying the Master Franchisee the royalty fee....
“The Franchisee shall be responsible for paying for all equipment it purchases (orders) either to the Franchisor (or Master Franchisee if one is established)....
“g; The Franchisee will sell only products from suppliers or manufacturers approved by Franchisor. All products must be ordered and all installation work or service calls must be made through the Franchisor or the Master Franchisee, if one is established for the Franchisee’s sales area.”
On October 8,1992, counsel for CWI wrote Hawkinson a letter which is critical to many issues of this appeal. The October 8 letter states in pertinent part:
“It has become apparent that there is a current impasse reached by all parties in attempting to resolve recurring problems encountered in the existing franchise relationships. This impasse makes it impossible for CWI to offer the opportunity to participate in the new franchise program in the Kansas City area at this time.”
In the October 8 letter, CWI also informed Hawkinson that he was in default of his Agreement and
“[i]n accordance with Article 12 of the Agreement, CWI is entitled to terminate the Agreement twenty (20) days from your date of receipt of this letter. However, CWI will delay enforcing its contractual right to terminate the Agreement and will instead use the next thirty (30) day period, as stated above, to seek an alternative resolution to this matter.”
Hawkinson ultimately brought suit against CWI when CWI would not offer him the opportunity to participate in a new franchise program offered to other Kansas City sales franchisees. CWI submitted the following policy in an annual report required under the Securities Exchange Act of 1934, and the arbitrator referred to the new franchise program during the arbitration proceedings:
“In August 1992, the company (CW) instituted a new Franchise program and Franchise Agreement. The company is offering the new Franchise program to all potential or future Franchisees and is offering each eligible existing Franchisee the opportunity to elect, without charge, to participate in the new program. Approximately 97% of the eligible Franchises under the Pre-1992 Franchise program have converted to the current program.”
On February 18, 1994, the Johnson County District Court entered a journal entry confirming Hawkinson's arbitration award entered by the American Arbitration Association on November 10, 1993, against defendant CWI. Robert and Linda testified during this arbitration proceeding against CWI, but they were not named as parties to that proceeding.
On January 14, 1993, Hawkinson filed a petition in Johnson County District Court against CWI, Robert, Linda, Southwest, and West for damages and injunctive relief. The court granted Hawkinson’s restraining order enjoining certain activities of CWI, Robert, Linda, Southwest, West, and any individual acting on their behalf. On May 31, 1994, the court granted Hawkinson leave to amend his petition to add a claim for punitive damages for breach of fiduciary duty (Count 6) and tortious interference (Count 7) as to defendants Robert and Linda.
In Hawldnson’s suit against CWI et al., the court granted defendants' motion as to all claims against the corporate defendants West and Southwest. At the close of defendants’ case, the trial judge noted that CWI “is no longer a party to this litigation. And I have made the determination that the evidence did not justify claims against Southwest and West and I dismissed those parties.”
This left only Robert and Linda as defendants in the litigation. The trial court submitted Hawkinson’s claims of tortious interference to the jury but included only three of the nine prospective business relationships. Thus, an instruction was submitted regarding whether the defendants tortiously interfered with Gilbert-McGill, Unimark, and Meadowbrook. The court ruled that there was insufficient evidence to go to the jury regarding tortious interference with Cub Foods, Pay-Rec Schools, Cintas, Garage Door, Hermes, and Ball’s Food. The court, however, submitted all nine business relationships, or prospective business relationships, in the instruction relating to Robert and Linda’s fiduciary duty to Hawkinson. Robert and Linda provide an inordinate amount of detail about each of their individual dealings or lack of contact with each separate business entity. They try to show that they did not interfere with at least one of the business relationships for which Hawkinson was awarded damages.
After an 8-day trial, the jury returned a verdict in Hawkinson’s favor and against Robert and Linda on all claims submitted. The jury found contractual obligations were owed to Hawkinson as a third-party beneficiary of Robert and Linda’s Master Franchise Agreement and awarded him damages in the amount of $66,500.00. The jury also found that Robert and Linda had both breached a fiduciary duty owed to Hawkinson, tortiously interfered with Hawkinson’s existing contract with CWI, and interfered with his prospective business relationships. The jury awarded Hawkinson $20,500 in damages for these three findings, attributing $10,250 to Linda and $10,250 to Robert. The jury’s verdict included a finding that both Robert and Linda were individually liable for punitive damages.
On January 29, 1996, the matter then proceeded for a determination of the amount of punitive damages to be awarded. The trial court first ruled that “[t]he award of punitive damages in favor of the plaintiff is to be against each defendant separately, not against both jointly and [severally].”
K.S.A. 60-3702 (b)(1) through (b)(7) provide the statutory elements used to determine the amount of punitive damages to be awarded. Under the fifth element of attitude and conduct of the defendants upon discovery of the misconduct, the judge found that
“the defendants Bennett were in fact in a superior position to the plaintiff Hawkinson and that the defendants Bennett intentionally manipulated the rules and their relationship with the franchisor CWI to accomplish their end of attempting to get rid of plaintiff Hawkinson. This is the type of attitude which the Court believes the legislature had in mind as being relevant to the assessment of punitive damages.”
Ultimately, the trial court assessed punitive damages in the amount of $20,000, in favor of the plaintiff and against Robert, and punitive damages in the amount of $10,000 against Linda.
Robert and Linda timely appealed to the Court of Appeals. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
I. ARBITRATION EXPENSES
HawMnson’s petition for damages and injunctive relief requested attorney fees and costs. In his affidavit, Hawkinson stated that in order to prevent termination of his sales franchise and to preserve his investment in his sales franchise, he was “forced to incur significant expenses since the date of a purported notice of default from Communications World International, Inc. dated October 8, 1992.” He also maintained that since CWI’s notice of his default, “I have incurred legal fees in excess of $94,000 in connection with arbitration and related proceedings and have incurred expenses for depositions, travel, arbitration fees, and other matters in an amount in excess of $18,000 in connection with my efforts to preserve my franchise.”
Robert and Linda assert the trial court erred in submitting a $33,137.95 claim against them for Hawkinson’s attorney fees, expenses, and lost time incurred in arbitration against CWI, because such damages are not recoverable as a matter of law. Linda contends that under the well-established general rule, attorney fees are not allowable as damages in the absence of a statute authorizing their recovery. She cites to Lines v. City of Topeka, 223 Kan. 772, 577 P.2d 42 (1978), as authority for this statement.
In Lines, this court affirmed the trial court’s grant of summary judgment for plaintiff who had been terminated as a building inspector for the City of Topeka. The Lines court held that under the doctrine of equitable estoppel, the City was estopped from dismissing plaintiff from his position because the commissioners led plaintiff to believe that he would not lose his job due to a question of whether he was actually a Topeka resident, until the city attorney’s office drafted an ordinance defining “residence.” 223 Kan. at 774. Plaintiff contended that he should have been granted attorney fees as costs in the action he was forced to bring for his reinstatement.
The Lines court ruled that “[generally, attorney’s fees are not allowable as damages in the absence of a statute. (Will v. City of Herington, 205 Kan. 422, 424, 469 P.2d 256 [1970]; Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 510, 438 P.2d 732 [1968)]; Ablah v. Eyman, 188 Kan. 665, 682, 365 P.2d 181 [1961].)” 223 Kan. at 782. She neglected, however, to include the next sentence of the paragraph she cited in support of the “well-established general rule,” wherein the Lines court explained:
“Exercising its equity jurisdiction this court has on occasion taken exception to this rule. In Barten, this court approved an allowance of attorney’s fees on the theory the District had acted in ‘bad faith.’ Plaintiff urges us to award fees here on the same theory. We have examined the record and conclude the case before us does not compare with Barten. The mere fact a party loses a lawsuit does not justify imposing attorney’s fees upon him as costs. Likewise, there is no showing the city was totally unreasonable in its acts under all the circumstances. The district court was correct in denying attorney’s fees.” 223 Kan. at 782.
Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 491, 438 P.2d 732 (1968), involved the question of whether a General Plan of financing, adopted by the board of directors of the Watershed District (the District), was lawful and whether it was proper for the trial court to allow attorney fees to the plaintiffs’ attorneys. Plaintiffs included landowners in the District and the county attorney of Dickinson County. The appropriate percentage of District landowners filed a petition with the secretary of the board of directors of the District, in accordance with K.S.A. 24-1215. It thereby became the duty of the board to submit the question of adoption of the General Plan to the qualified voters of ihe District. The District, however, refused to call the election, and plaintiffs claimed this refusal forced them to bring a proceeding to enforce the District’s compliance with the law. Therefore, plaintiffs requested judgment against the District and reasonable attorney fees for the prosecution of this action. The Barten court held:
“It is a general rule that attorneys’ fees and expenses of litigation, other than court costs, are not recoverable as an item of compensatory damage, in the same or subsequent action, and are not chargeable as costs against the defeated party, in the absence of a clear and specific statute authorizing such recovery. (Ablah v. Eyman, 188 Kan. 665, 682, 365 P.2d 181, 90 A.L.R. 2d 766.)
“The provisions of 60-802 (c), supra, are substantially the same as G. S. 1949, 60-1710 in the old code of civil procedure, and its predecessor, L. 1909, ch. 182, § 723. Judge Gard, (Gard, Kansas Code of Civil Procedure Annotated, § 60-802c, p. 611) says this subsection is in keeping with the Kansas decisions and the law generally that on judgment for the plaintiff in a mandamus action, he may in the same proceeding recover such damages as he has actually sustained through the wrongdoing of the defendant. The damages recoverable are the injuries sustained as the natural and probable consequences of the wrongful refusal to comply, and the expense reasonably and necessarily incurred in compelling compliance, including reasonable attorneys’ fees. [Citations omitted.]” 200 Kan. at 510.
Linda attempts to distinguish Barten from the case at hand. She asserts that the Barten court applied a historically recognized exception permitting recovery of attorney fees in mandamus proceedings to compel a public official or a public body that in bad faith refused to perform its duty. She insinuates the Lines court denied plaintiff’s attorney fees because Lines was not a mandamus case.
The CWI/Hawkinson sales agreement did not make arbitration optional, such that Hawkinson “elected” to arbitrate instead of proceeding directly to district court. Article 15(h) of the CWI/Hawkinson’s Sales Franchise Agreement made arbitration mandatory in the event of controversy.
The following cases recognize the exception to the general rule that attorney fees are not recoverable: McOsker v. Federal Insurance Co., 115 Kan. 626, 224 Pac. 53 (1924) (attorney fees incurred by plaintiffs insurance purchasers in defending actions brought against them by a third party on notes for insurance premium were recoverable against the insurance company in a subsequent action); First National Bank v. Williams, 62 Kan. 431, 63 Pac. 744 (1901) (bank which had brought an action against Writer of a bad check was entitled to recover attorney fees die bank expended in a previous suit with a third party regarding the enforceability of the bad check); see Wilshire Oil Company of Texas v. Riffe, 409 F.2d 1277, 1285 (10th Cir. 1969); Safway Rental & Sales Co. v. Albina Engine & Machine Works, 343 F.2d 129, 133 (10th Cir. 1965).
The case of Duggan v. Rooney, 749 F. Supp. 234 (D. Kan. 1990), involved an appeal of a summary judgment motion, finding in favor of plaintiff and against Massachusetts Mutual Life Insurance Company. The plaintiff (Duggan) contended that Rooney s failure to be a licénsed insurance agent in the state of Kansas, as provided under K.S.A. 40-244; when he solicited the decedent, constituted a breach of legal duty owed to Duggan. Plaintiff asserted that .if Rooney had been properly licensed, she would not have been forced to sue on the conditional receipt to recover the insurance proceeds. The Duggan court stated:
“The general rule regarding recovery of attorneys’ fees is that ‘in the absence of any contractual or statutory liability therefor, counsel fees and related expenses are not recoverable as an element of damages.’ Wilshire Oil Co. v. Riffe, 409 F.2d 1277, 1285 (10th Cir. 1969); Farmers Cas. Co. v. Green, 390 F.2d 188, 192 (10th Cir. 1968) (‘under Kansas law and traditionally, attorneys’ fees can be awarded only if provided for by contract or authorized by statute’).
“However, an exception to this rule has been recognized in Kansas where the plaintiff has been forced to litigate against a third party because of some tortious conduct of the defendant. The recognized exception is stated as follows:
‘If one’s property is taken, injured or put in jeopardy by another’s neglect of duty imposed by contract, or by his wrongful act, any necessary expense incurred for its recovery, repair or protection is an element of the injury. It is often the legal duty of the injured party to incur such expense to prevent or limit the damages; and if it is judicious and made in good faith, it is recoverable, though abortive.’ [Citation omitted.]” 749 F. Supp. at 241.
The arbitration with CWI was a foreseeable, natural, and proximate consequence of Robert and Linda’s conduct. Robert and Linda were CWI’s largest producers and acted in concert with several other large producers, when they wrongfully withheld roy alties for several months demanding that CWI terminate Hawkinson’s franchise.
On October 8,1992, CWI sent Hawkinson a letter, which Hawkinson deems a notice of default and termination letter. The letter excludes him from “the opportunity to participate in the new franchise program in the Kansas City area at this time.” Other parts of this October 8 letter are important to this issue, as well as to Robert and Linda’s assertion that the Agreement between Hawkinson and CWI was never actually breached. This letter also stated:
“[I]t is apparent that it is not in the best interest of any of the involved parties to attempt to maintain the franchise relationship as reflected by your current Agreement. If that relationship was working and if it was your desire to do so, CWI would continue to honor the Agreement. As you are aware, however, that relationship is not working, nor does it seem to be your desire to continue operating under that Agreement. Records show that you are not fulfilling your obligations under the Agreement in terms of deficiencies in meeting the stated productivity levels and deficiencies in payments owed to the Master Franchisee.
“CWI regrets that the proposed resolution to this matter must necessarily involve the suggestion that your franchise be cancelled. However, as you are well aware, CWI has exhausted all other possibilities of resolving the disputes which have continually plagued your relationship with Mr. Bennett, who, as a Communications World franchisee, has been delegated certain responsibilities and has assumed certain rights of CWI under your Agreement. CWI is not in a position where it can arbitrarily prefer the interests of one franchisee over another. CWI’s records show that you are in default of your Agreement, as mentioned above, and that Mr. Bennett is not in breach of his Master Franchise Agreement with CWI. In addition, contrary to the claims contained in your various letters to CWI, there has been no breach of the Agreement by CWI, itself, or by and through its Master Franchisee. Rather than revisit CWI’s response to your claims of breach, I would refer you to the letter written to you on August 8, 1992, by Tony Hildebrand, Vice President - Franchising of CWI. I believe that letter quite clearly states CWI’s position with respect to the ongoing problems which you have encountered and makes it clear that none of your complaints constitute a breach by CWI of the Agreement.
“In contrast, you are in breach of the Agreement by fading to maintain gross sales figures of $20,000 per month (Sections 7.c. and 12.b.); by repeatedly failing to make proper royalty payments to the Master Franchisee (Sections 7.f., 8.a. and 12.a.); and by selling products and equipment obtained from suppliers or manufacturers not approved by CWI and by failing to consistently utilize the Master Franchisee for installation and service work (Sections 7.g. and 5). In accordance with Article 12 of the Agreement, CWI is entitled to terminate the Agreement twenty (20) days from your date of receipt of this letter. However, CWI. will delay enforcing its contractual right to terminate the Agreement and will instead use the next thirty (30) day period, as stated above, to seek an alternative resolution to this matter.
“With that being said, CWI is hopeful that all parties can move beyond what has proven to be an insurmountable problem with the existing franchise relationships in the Kansas City area. Failing that, CWI stands ready to abide by and enforce the Agreement which it has executed with you and you will be expected to cure the above-noted deficiencies under your Agreement.”'
Under the HawMnson/CWI Sales Franchise Agreement, Hawkinson did not have the option of bypassing arbitration; arbitration was mandatory. Article 15(h) of the Hawkinson/CWI Sales Franchise Agreement provided that “[a]ny controversy which may arise between the parties pursuant to this Agreement shall be settled by arbitration in Denver, Colorado in accordance with the rules of the American Arbitration Association.” (Emphasis added.) Kansas law, as well as Colorado law, recognizes that a plaintiff can recover attorney fees under such circumstances.
The arbitration proceeding was a result of Robert and Linda’s wrongful acts of trying to force CWI to terminate Hawkinson’s franchise. Consequently, the trial court did not err in awarding attorney fees on the basis of the third-party beneficiary exception.
II. SEPARATE CLAIMS
Robert and Linda claim they were prejudiced by the jury instructions partially because they claim the trial court should have submitted the claims against Linda and Robert separately.
A. Standard of review
In Noel v. Pizza Management, Inc., 258 Kan. 3, 12, 899 P.2d 1013 (1995), the court stated the well-established rules governing the standard of appellate review of alleged errors in jury instructions:
“It is the duty of the trial court to properly instruct the jury upon a party’s theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.’ Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 353, 837 P.2d 330 (1992).”
Also, “ ‘jury instructions are to be considered together and read as a whole, without isolating any one instruction.’ ” Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 490, 856 P.2d 906 (1993) (quoting Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 355, 837 P.2d 330 [1992]). Further, "[i]f the jury instructions, read as a whole, fairly instruct the jury on the law governing the case, are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.” In re Application of the City of Great Bend for Appointment of Appraisers, 254 Kan. 699, 713, 869 P.2d 587 (1994). Instructions Nos. 11 and 12 are pertinent jury instructions to be taken into consideration in determining whether the instructions fairly instructed the jury on the law overall, and whether the jury could not reasonably have been misled by them. Instruction No. 11 stated:
“The plaintiff, Bruce R. Hawldnson, claims he was damaged by the following actions of the defendants: (1) breach of a contract for which he was a third party beneficiary; (2) tortious interference with contract; (3) tortious interference with prospective business relationship; and (4) breach of fiduciary duty.
“The plaintiff has the burden to prove that it is more probably true than not that he sustained damages as a result of any one or more of the above listed actions of the defendants.”
Instruction No. 12 stated in part:
“Defendants deny that they have tortiously interfered with the contractual relationship between plaintiff and Communications World International. Defendants further deny that they have tortiously interfered, with any existing or prospective business advantage or relationship of. plaintiff.
“Defendants contend that all actions they have taken with respect to plaintiff have been justified under all of the circumstances. Defendants have the burden to prove that it is more probably true than not that they were justified.
“Defendants deny that a fiduciary relationship has ever existed between themselves and plaintiff, and further deny that they have breached any fiduciary duty they may have owed to plaintiff.
“Defendants deny the existence, nature and extent of plaintiff’s claimed damages.”
B. Tortious interference with Hawkinson’s prospective business relationships
The argument here is that Robert and Linda should have had instructions that made it clear that they were separate entities since both of them did not have contact with all the businesses, i. e., Linda claims to have had no contact with seven of the businesses and Robert with three of the businesses. As we view Instruction No. 20, it does not require a finding that Robert or Linda tortiously interfered with each of Hawkinson’s prospective business relationships. Its wording allows the jury to determine whether there was tortious interference with a prospective business relationship. Further, before the jury could award damages for tortious interference with a prospective business relationship, it had to find the existence of a business relationship or expectancy with the probability of future economic benefit to Hawkinson. The instruction allowed the jury to find tortious interference with any of the three prospective business relationships. Linda does not deny that she had dealings with Unimark, and Robert does not deny that he had dealings with Gilbert-McGill or Meadowbrook. When the instructions are considered as a whole, the instructions were not erroneous.
C. Claim for breach of fiduciary duty
Robert and Linda contend that there is no evidence to support Instructions Nos. 22 or 23. Instruction No. 22 stated:
“The plaintiff’s fourth claim is that a fiduciary relationship existed between the plaintiff and the defendants Robert and Linda Bennett, as Master Franchisees, and that the defendants breached their fiduciary duty in one or more of the following respects:
1. By failing to properly support, assist and help plaintiff as a Sales Franchisee;
2. Efforts by defendants to obtain the termination of plaintiff’s sales franchise;
3. Encouraging CWI to declare Mr. Hawkinson in default;
4. By interfering with the following existing and prospective customers of plaintiff: Gilbert-McGill, Unimark, Meadowbrook, Cub Foods, Ray-Pec Schools, Cintas Corp., Garage Door Co., Hermes and Ball’s Foods;
5. By denying plaintiff the right to future business as provided in his contract with CWI;
6. Unilaterally withdrawing and withholding valuable discounts and special terms from plaintiff;
7. Acting contrary to CWI’s Sales Franchisee Policy and Procedure Manual and by creating their own ‘guidelines’.
“It is for you to determine whether a fiduciary duty existed and if so, whether it was breached as alleged.”
Instruction No. 23 explained:
“The term ‘fiduciary relationship’ refers to any relationship of blood, business, friendship or association in which one of the parties places special trust and confidence in the other.
“It exists in cases where there has been a special confidence placed in one, who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence.
“A fiduciary has the duty to act in good faith and with due regard to the interests of the party placing confidence in him.”
Linda argues that these instructions allowed the jury to consider Hawkinson’s claim for breach of fiduciary duty, based in part on the interference with all nine of the alleged customers or prospective customers. Thus, Linda argues that these instructional errors permitted the jury to consider wholly unsubstantiated submissions as to Robert and Lin,da.
The trial judge allowed all nine of Hawkinson’s alleged prospective business relationships to be included in the instruction dealing with whether there was a fiduciary duty between Hawkinson and Robert and Linda, as Master Franchisees. Inclusion of prospective customers with whom either Robert and/or Linda may have had no individual dealings presents different considerations in terms of fiduciary duty than with the tortious interference instructions.
Both Linda and Robert had a fiduciary obligation to Hawkinson. The trial court found as a matter of law that Robert and Linda owed Hawkinson the duties of a fiduciary. Therefore, even if Robert and/or Linda did not deal with a prospective customer, they were liable for one another’s acts in terms of their actions as Master Franchisee and in their roles as fiduciaries.
D. Claim for tortious interference with the Sales Franchise Agreement
Linda also argues that because there was no determination that either she or Robert was responsible for one another’s conduct, it was error for the court to submit Instructions Nos. 17 and 18, which allowed the jury to consider the conduct of one defendant in determining liability for Hawldnson s claim of tortious interference with the Sales Franchise Agreement. Linda tries to refute the fact that the jury answered questions on the verdict form indicating it found both linda and Robert liable, by arguing that without the improper submissions, the jury would never have considered loss of profits or future profits with the alleged improper prospective customer claims, or mutual responsibility for damages arising from the tortious interference with the Sales Franchise Agreement. Furthermore, she also alleges that these improper submissions allowed the jury to find both Robert and Linda liable for punitive damages.
Hawldnson first asserts that Robert and Linda failed to provide any citation to the record demonstrating that either Robert or Linda timely objected to any of thé instructions on the basis that the defendants should be referred to separately as Linda and Robert and not joined as “the defendants.” They also never specifically objected to the fact that separate instructions were not generally given as to Robert and Linda. Robert and Linda objected to nearly every instruction given, but the only instance of a specific objection to the instructions’ referral to Robert and Linda as “defendants” was an objection that the word “misconduct” in Instruction No. 20 “ought to be divided.”
We hold Robert and Linda failed to object to the complained-of jury instructions with sufficient specificity to preserve the objection for appeal, and the jury instructions are not clearly erroneous. K.S.A. 60-251(b) provides:
“No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
This court defined a clearly erroneous instruction in Nail v. Doctor’s Bldg., Inc., 238 Kan. 65, 67, 708 P.2d 186 (1985): “Aninstruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility that the jury would have returned a different verdict.”
When the instructions cited by Robert and Linda as erroneous are read in conjunction with the verdict form, it is clear that the jury had to establish that the tort liability of Linda and Robert was separate. Before the jury could enter a verdict against either Robert or Linda for any of the alleged torts, the jury was required to determine that the specific defendant committed the specific tort. Also, the verdict form prevented confusion by requiring the jury to separate and attribute any tort damages between the two individuals. The verdict form stated the following questions, to which the jury answered “yes” to all of the questions or submitted damage amounts where appropriate:
“1. Do you find that the defendants Robert and Linda Bennett, breached contractual obligations owed to the plaintiff as a third party beneficiary?”
“2. If your answer to question one is yes, state what total amount of damages, if any, you find plaintiff [Hawkinson] sustained due to the breach.
$ 66,500”
“3. Do you find that the defendant Robert Bennett breached a fiduciary duty owed to the plaintiff?”
“4. Do you find that the defendant Linda Bennett breached a fiduciary duty owed to the plaintiff?”
“5. Do you find that the defendant Robert Bennett tortiously interfered with plaintiff’s existing contract with Communications World International, Inc.?”
“6. Do you find that the defendant Linda Bennett tortiously interfered with plaintiff’s existing contract with Communications World International, Inc.?”
“7. Do you find that the defendant Robert Bennett tortiously interfered with plaintiff’s prospective business relationships?”
“8. Do you find that the defendant Linda Bennett tortiously interfered with plaintiff’s prospective business relationships?”
“9. If you have answered Tes’ to any one or more of questions three through eight inclusive state what total amount of damages, if any, you find plaintiff sustained as a result.
$20,500”
“10. Of the damages, if any, set out in your answer to question nine, state the amount attributable to the actions of:
Robert Bennett $10,250 Linda Bennett $10,250
(The amount attributable to Robert Bennett and the amount attributable to Linda Bennett, when totaled together must be the same as the amount set out in your answer to question nine.)
■ “The amount of actual damages, if any, set out in your answers to questions two and nine, when totaled together cannot exceed the total amount of plaintiff’s claim, as you were instructed in Instruction No. 24.”
“11. Do you find that defendant Robert Bennett should be hable for punitive damages?”
“12. Do you find that defendant Linda Bennett should be hable for punitive damages?”
Thus, the verdict form allowed the jury to clearly decide whether Robert or Linda had individually breached a fiduciary duty.
Both Robert and Linda signed the Master Franchise Agreement. Therefore, a valid argument exists that they are jointly liable. In fact the judge gave an instruction stating that “[w]hen two or more persons have joined in obligating themselves by contract, each person is wholly liable.” Both Robert and Linda signed the agreements for the franchises, West and Southwest.
The trial court and the jury heard the evidence and analyzed the credibility of the witnesses. After the 8-day trial, the jury found that Robert and Linda were both liable for tortious interference with some of Hawkinson’s proposed or actual customers, that they were both liable for breach of fiduciary duty, and that they were both hable for punitive damages.
“If a verdict is attacked on the grounds that it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or to pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party, will support the verdict, this court will not intervene.” Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. ¶ 4, 856 P.2d 906 (1993).
The jury instructions, read as a whole, fairly instructed the jury on the law governing the case, were substantially correct, and the jury could not reasonably have been misled by them. We find no error.
III. POSSIBILITY OF DUPLICATIVE DAMAGES
Robert and Linda are claiming that the verdict form improperly permitted the jury to assess duplicative damage awards for interference with Hawkinson’s customers or prospective customers, under both contract and tort theories.
Robert and Linda cite State ex. rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P.2d 1326 (1987), as authority that a plaintiff is only entitled to one recovery for a wrong, regardless of the number of legal theories he or she is permitted to pursue. In GAF Corp., the State brought an action against GAF, alleging that it had committed breach of express warranty, negligence, and fraud in connection with GAF’s actions involving the construction of a roof for a new state building called the Flint Hills Lodge, a building for the Kansas Neurological Institute in Topeka. A GAF specification was used in constructing the new roof and the roof was built by a general contractor approved as a GAF roof installer. After the installation, GAF inspected and approved the roof and issued a written 10-year guarantee. Almost immediately after completion, the roof leaked profusely. GAF refused to accept responsibility for the leaks, and the State had to install a new roof. GAF Corp., 242 Kan. at 153-54.
At trial, the jury was provided with specific instructions on fraud and fraud by silence. The jury found GAF guilty of fraud and awarded actual damages of approximately $70,000, as well as punitive damages in the amount of $1,000,000. One of GAF’s complaints on appeal was that the trial court erred in not requiring the State to elect between its contract and tort theories. The GAF Corp. court held that an election of claims is required only when the claims are inconsistent; claims are inconsistent where one claim alleges what the other denies. Stated another way, the allegations in one claim must be repugnant to the other. Thus, the GAF Corp. court held that “[t]he jury in this case found that GAF breached the terms of its express warranty to the State. It also found that GAF was guilty of negligence. Only one recovery of actual damages was sought or permitted. The trial court did not err in failing to require an election.” 242 Kan. at 160. GAF further contended that “the trial court erred in the verdict form submitted since it did not adequately set forth the appropriate basis for recovery upon the alternative theories of negligence and contract.” 242 Kan. at 160. The GAF Corp. court found this assertion unconvincing and held that
“under the circumstances of this case, the inadequacies of the verdict form were harmless. The case was presented on the theories of breach of express contract, negligence, and fraud. The jury specifically found that GAF breached its written guaranty contract, that it was negligent, and that it was guilty of fraud. The verdict form permitted only one recovery, and there is no contention by the appellant that the various amounts of actual damages sought were not properly recoverable on the theory of negligence. GAF argues that consequential damages were not recoverable for a breach of its express written warranty, and that the jury should have been specifically instructed and required to find the damages recoverable for breach of express warranty. If the jury had found breach of warranty but no negligence, appellant’s complaint would have merit. However, considering all of the findings of the jury, we find no error.” 242 Kan. at 160.
Robert and Linda never specifically objected to the verdict form as duplicative. As a result, the clearly erroneous standard applies.
The case at hand is distinguishable from the GAF Corp. case. In GAF Corp., all of the alleged wrongs flowed from the one act of installing the roof. This act led to various claims on different theories, and plaintiff was allowed to submit the various theories, but was only allowed to collect damages for one theory. In this case, there was a variety of distinct wrongful acts that Robert and Linda allegedly committed, aside from merely interfering with Hawkinson’s existing or prospective customers. Robert and Linda’s interference with Hawkinson’s existing or prospective customers was only one of many reasons asserted for their breach of contractual obligations owed to Hawkinson as a third-party beneficiary of the Master Franchise Agreement between CWI and Robert and Linda. For example, Hawkinson presented evidence that Robert and Linda wrote numerous letters to CWI urging CWI to terminate Hawkinson’s franchise. Also, there was testimony that the Master Franchise was not fulfilling its obligations to help sales franchisees, such as Hawkinson. It is impossible to determine what reason or reasons the juiy used to determine that Robert and Linda owed Hawkinson damages because they breached contractual obligations owed to Hawkinson as a third-party beneficiary.
The jury could have used many reasons to reach its conclusions regarding damages on the contract claim, aside from Robert’s and Linda’s alleged conduct constituting interference with Hawkinson’s existing or prospective customers. The jury instructions and the verdict form, when read as a whole, fairly instructed the jury on the law governing this case. Therefore, the trial court did not err in allowing the jury to assess damages on both theories.
IV. RES JUDICATA OR COLLATERAL ESTOPPEL
The arbitrator specifically found:
“CW has condoned the conduct of its agent, Bennett, in acquiring customers solicited by Hawkinson and is therefore responsible for damages asserted. Direct and cross-examination of witnesses sustain a factual determination that ‘lost’ accounts include Gilbert/McGill, who Hawkinson determined would be moving to his territory and who advised Bennett that they were already in discussions with Hawkinson; Unimark, a former Executone Franchise customer of Hawkinson which Linda Bennett ultimately acquired; and, Meadowbrook, with CW (through Aletha Zens) suggesting that the profit be split, with customer designation being that of Hawkinson until the President of CW interceded and decided that Bennett should receive the customer. Other ‘customers’ are too speculative and there is no certainty warranting a finding of fact. The process which Hawkinson has used to project future losses, although thoughtful, cannot be accepted as factual due to the rapidly changing marketplace, lack of customer loyalty, and speculative nature as to level of profits. Other matters involving damages apply not to CW, but rather Bennett directly as to be determined by the Court system in Kansas.”
The findings and awards of the arbitrator also included:
“CW attempted to terminate the relationship between itself and Hawkinson based upon items of default under the Agreement. Hawkinson fully admits and the Arbitrator finds that Hawkinson did not meet a sales quota of $20,000.00 per month, nor did he pay invoices within 15 days on a regular basis, two (2) reasons given by CW for justifying termination of contract. Hawkinson denied the other significant allegation of CW that he failed to devote his principal efforts to his own sales territory. During the course of the Arbitration, counsel for CW and Hawkinson stipulated that Hawkinson was not restricted to his sales area, he could sell outside of his territory; Claimant was to place primary emphasis within his own territory. At issue is whether or not this conduct constitutes a breach of the Agreement between the parties; and, whether CW has waived its right to declare a default based upon historical perspective and a 5 year relationship between CW and Hawkinson.
“Hawkinson had discussions with Aletha Zens, the Director of Franchise Relations of CW, who advised him that no Franchisee had ever been dismissed (contract terminated) for failing to obtain the sales goal of $20,000.00 per month. Ms. Zens did affirm the conversation in her testimony. Tony Hildebrand, Vice President for Franchising at CW had been a part of the franchise system for several years as a Master and had Franchises which did not meet the $20,000.00/ month sales goal; none of them had been defaulted. Furthermore, under the new system, the sales goal has been eliminated as well as the concept of exclusive territories. Hildebrand also followed the CW policy of 30 day payment of invoices unlike the Bennetts who instituted their own 15 day limit.
“The Master Franchisee was a ‘family affair’ in that Robert and Linda Bennett (husband and wife) were involved as the Master Franchisee, both Bennetts ini-. tially had their own individual Franchises under the Master; Stormy Bennett (Bob’s brother) had another Franchise under the Master; another of Bob’s brothers was initially involved with Stormy; and, the key employees of the Master were intertwined — Sharon and Karen are sisters, Cindy is a roommate of Karen, and the Bookkeeper (Pam Meek) is the sister-in-law of Sharon. Over the years, all ‘non-family’ franchisees, people such as Hawldnson, dropped out of the Kansas City Master Franchise except for Hawldnson. The Bennetts have no desire or intent to add to their Master Franchise any additional Franchisees; and, the Bennetts have a strong desire to remove Hawldnson from the system. CW has been advised of the position of Bennett and requested to remove him, even though the contract is only between Franchisor and the Franchisee. CW took no action as against Hawldnson (who almost never reached the $20,000.00/month goal) until Bennett requested his removal for default. Bennett affirmed in his testimony that he was one of the largest sales producers, owner of45,000 shares of stock in CW, and that ‘CommWorld is family.’
“ . . . Mr. Hildebrand confirmed that he was not aware of any other Franchisee who had been terminated for default since new management had been inserted into positions at CW in late 1991/early 1992. In CW’s response to Plaintiff’s First Interrogatories (Exhibit C-49) Question #3 requires identification of Sales Franchisees who have been terminated by CW solely for failure to maintain gross sales of $20,000.00 per month. The response was that no Franchisee has ever been terminated solely for this reason. Current CW President, Richard Olson testified that to his knowledge Hawldnson is the only Franchisee declared in default, and that 95% of the former Franchisees are now under the new Agreement where the $20,000.00 per month goal is no longer required. CW requires invoices be paid within 30 days; the 15 day rule is that procedure implemented by Bennett. Hawldnson did not make payments consistently within 15 days, but all of his payments were made within 30 days.
“The Arbitrator does find that CW had consistently waived any requirement of a $20,000.00 goal; and, that the 15 day invoice concept was not a significant issue for CW. Furthermore, Hawldnson did in fact expend his principal efforts toward the geographic territory assigned to him, although he did have a greater measure of success in geographical locations outside of his assigned territory. The Bennetts and Hawldnson are engaged in a significant pattern of harassment, one as against the other, through conduct of Bennetts and through an explosion of paperwork by Hawldnson.”
Therefore, the arbitrator made an award
“in favor of Claimant, Bruce R. Hawldnson, as against Respondent, Communications World International, Inc. in an amount of $35,635.67. Furthermore, Hawldnson is determined to be an ‘eligible existing Franchisee’ and may elect, without charge, to take advantage of the opportunity to participate in the new franchise program. Should Hawldnson choose this option, CW shall accept him into the new program. This Award is in full settlement of all claims submitted to this Arbitration.”
Robert and Linda claim that the trial court erred in admitting evidence, over their objection, and in submitting Hawkinson’s damage claims based on interference with his customers or proposed business relationships because such claims are precluded by the doctrine of res judicata or the rule of collateral estoppel. Robert and Linda assert that they are the subject of Hawkinson’s prior arbitration award against CWI and cite the section of the arbitration proceeding wherein the arbitrator found that CWI “had condoned the conduct of its agent, Bennett, in acquiring customers solicited by Hawkinson and is therefore responsible for damages asserted.” Thus, they argue that the arbitrator’s finding of liability on the issue of customer interference was based on agency principles, and not CWI’s independent conduct.
Robert and Linda cite Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 751 P.2d 122 (1988), as authority that the doctrine of claim preclusion, or res judicata, prevents parties from relitigating a cause of action that has been finally adjudicated. In Jackson Trak Group, Inc., Mid States Port Authority (Mid States) was an operator of a short line railroad in Northwest Kansas. Jackson Trak Group, Inc., (Jackson Trak) constructed and rehabilitated railroad track. Mid States and Jackson Trak entered into three separate contracts to rehabilitate portions of Mid States’ lines. All three contracts bound the parties to mandatory arbitration. After notifying Jackson Trak that its work was defective, Mid States filed an action in the Phillips County District Court for possession of Jackson Trak’s equipment. Prior to receiving judicial approval, Mid States seized Jackson Trak’s equipment. Jackson Trak subsequently filed an application for mandatory injunction and replevin of property but specifically reserved the right to determine the issue of defective work in an arbitration proceeding. The Phillips County District Court ruled that Mid States had seized Jackson Trak’s equipment following the contractual procedure but refused to determine issues subject to arbitration under the contracts. Jackson Trak Group, Inc., 242 Kan. at 683-86.
Jackson Trak then initiated arbitration proceedings, and Mid States objected to the arbitrators’ power to award damages for “conversion” of Jackson Trak’s equipment because that issue had already been decided by the Phillips County District Court. The arbitrators found for Jackson Trak on all issues and awarded damages. The Sedgwick County District Court affirmed the arbitration award and Mid States appealed the confirmation order asserting various issues, including a claim that the district court had no jurisdiction to award damages for Mid State’s seizure of Jackson Trak’s equipment because that issue had already been decided by the Phillips County District Court. Jackson Trak Group, Inc., 242 Kan. at 687-88.
The Jackson Trak Group, Inc. court held that res judicata did not apply to bar the district court’s affirmation of the arbitration award and went on to discuss the elements of res judicata. The court first noted that the doctrine of res judicata has two aspects: claim preclusion and issue preclusion and stated that under the claim preclusion aspect of res judicata:
“An issue is res judicata when four conditions concur: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. [Citation omitted.]” 242 Kan. at 690.
The Jackson Trak Group, Inc. court also stated:
“Under Kansas law, collateral estoppel may be invoked where the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity, and (3) the issue litigated must have been determined and necessary to support the judgment. [Citation omitted.]” 242 Kan. at 690-91.
In order to invoke the doctrine of res judicata or collateral estoppel, all of the elements must be met. Robert and Linda fail the first element of res judicata because Hawkinson was suing to prevent CWI from terminating his franchise. Even if Robert and Linda were deemed parties to the action, they were not involved in the CWI/Hawkinson arbitration to prevent CWI from terminating Hawkinson’s franchise. Thus, they did not have identity of the cause of action. In fact, the arbitrator, and the jury in this case, found the opposite proposition was true: Robert and Linda were attempting to force CWI to terminate HawMnson’s franchise.
The arbitrator found that CWI’s declaration of Hawktnsoris “default” was not proper because CWI has waived “its right to have asserted a default. CW is estopped from taking this position due to its historical record and interaction with Hawkinson. CW’s conduct and response under the existing Franchise Agreement is not in good faith or fair dealing; and the default asserted is nothing more than a ruse to keep Hawkinson ineligible.” Given this statement, Robert and Linda’s interference with Gilbert-McGill, Uni-mark, and Meadowbrook, was not necessary to support the judgment against CWI.
In conclusion, Robert and Linda’s claim does not meet the elements of res judicata or collateral estoppel. Furthermore, in their motion in limine, they denied any connection with the arbitration proceeding, except in their roles as witnesses. Therefore, they fall within the rule succinctly stated in Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, Syl. ¶ 3, 856 P.2d 906 (1993), that “[o]n appellate review, a party may not complain of rulings or matters to which it has consented or take advantage of error that it invited or in which it participated.”
V. LOSS OF PAST AND FUTURE PROFITS
A. Hawkinson’s testimony regarding future profits
Robert and Linda argue that the trial court abused its discretion by allowing Hawkinson to testify, over their objection, as to his unsupported opinions and conclusions concerning past and future profits. Robert and Linda cite K.S.A. 60-456(a), which provides:
“If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.”
K.S.A. 60-419 sets out the standard regarding the competency of a witness to testify:
“As a prerequisite for the testimony of a witness on a relevant or material matter, there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required. Such evidence may be by the testimony of the witness himself or herself. The judge may reject the testimony of a witness that the witness perceived a matter if the judge finds that no trier of fact could reasonably believe that the witness did perceive the matter.”
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. [Citation omitted.]” Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997). See also City of Dodge City v. Hadley, 262 Kan. 234, 239, 936 P.2d 1347 (1997) (admission of expert testimony); McKissick v. Frye, 255 Kan. 566, 577, 876 P.2d 1371 (1994) (admission of evidence); Hurlbut v. Conoco, Inc., 253 Kan. 515, 529, 856 P.2d 1313 (1993) (discovery and admission of evidence).
Hawkinson testified at trial as to how he had calculated his damage from the loss of the Gilbert-McGill account. Robert and Linda objected that Hawkinson was testifying without proper foundation and “offering opinions concerning lost profits based upon data which is not in evidence. The data used by an expert under Kansas law must be in evidence.” They further objected that “before a witness offers opinion testimony concerning lost profits the underlying data must be made known to him. Under the statute ‘made known to him’ means in evidence.” Counsel for Hawkinson responded:
“Your Honor, that goes to expert opinion. The rule — first of all, the summary has been admitted, that summary of his calculations. The documents which underlie them would be admissible. They do not have to be admitted. He can testify that he reviewed those documents under the calculations he made, and the opinion he’s giving as to what the profit would have been to him.”
The trial judge ruled that Hawkinson was not testifying as an expert and allowed him to continue testifying as to his opinion. Hawkinson maintains that he clearly had personal knowledge of the financial and sales history of his franchise. Hawkinson entered into the Sales Franchise Agreement with CWI on June 1, 1988. Therefore, he had approximately 5 years of experience regarding the sale of telecommunications equipment prior to the arbitration proceeding in 1993. Further, he had at least 17 years of similar experience before entering the Agreement with CWI.
In Hampton v. State Highway Commission, 209 Kan. 565, Syl. ¶ 10, 498 P.2d 236 (1972), the court stated that “[w]hether a witness, expert or layman, is qualified to testify as to his opinion is to be determined by the trial court in the exercise of its discretion. That discretion is not subject to review except for abuse.” Discretion is abused only where no reasonable person would take the view adopted by the trial court. Hawldnson had sufficient experience to give his opinion regarding loss of profits and loss of future profits, and how he calculated the loss. The jury was free to give whatever weight, if any, it deemed appropriate to Hawkinson’s testimony. The trial court did not err in allowing Hawldnson to testify.
B. Submitting Hawkinson’s claims for loss of profits and loss of future profits
Robert and Linda also contend that the trial court abused its discretion in submitting Hawkinson’s claims for loss of profits and loss of future profits because the evidence of such loss of profits and loss of future profits was too contingent, remote, and speculative. In Cott v. Peppermint Twist Mgt.Co. Inc., 253 Kan. 452, Syl. ¶ 8, the court stated that “[i]n reviewing an award for an objective element of damages such as loss of past and future income, an appellate court must look to the record to see if there is evidence to support the jury’s calculation of pecuniary loss.” The trial court submitted Instruction No. 24, which states:
“If you find for the plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate the plaintiff for the damages you believe plaintiff sustained as a result of the actions complained of by plaintiff.
“The total amount of your verdict may not exceed $271,430.45.”
Robert and Linda operated their sales franchises and the Master Franchise as one entity. Further, both Robert and Linda signed each of the Sales Franchise Agreements and they both signed the Master Franchise Agreement. Consequently, their actions were attributable to one another. An explanation of how they operated their businesses as one entity is provided under Issue IX.
The jury awarded Hawkinson damages of $10,250 against Robert for his interference and $10,250 against Linda for her interference. Upon review of the record, we hold that there was evidence to support the jury’s calculation of damages.
The trial court submitted Gilbert-McGill, Unimark, Meadow-brook, Cub Foods, Ray-Pec Schools, Cintas Corp., Garage Door Co., Hermes, and Ball’s Foods in the instruction on whether Robert and Linda had breached their fiduciary duty. Under Instruction No. 22, the jury only had to find that Robert and Linda had breached their fiduciary duty in one of seven possible ways. Interference with the nine existing or prospective business relationships was only one way that the jury may have decided that they had breached their fiduciary duty. Thus, the jury may have assessed damages for Robert and Linda’s acts of “failing to properly support, assist and help plaintiff as a Sales Franchisee,” or because the jury found that Robert and Linda “[e]ncourag[ed] CWI to declare Mr. Hawkinson in default.”
Instruction No. 25 accurately set out the law regarding calculation of loss of profits and future profits. It stated:
“Loss of profits to an established business occasioned by the wrongful act of another [is] compensable and you may award such amount as is proved by the evidence. Such loss of profits may be awarded as damages when they are proved with reasonable certainty and may reasonably be considered to have been within the contemplation of the parties. Absolute certainty in proving loss of future profits is not required. What is required is that the jury be guided by some rational standard.”
In conclusion, the jury instructions accurately set out the law regarding calculation of damages, and it is not function of this court to assume that the jury failed to follow the instructions. The trial judge did not abuse his discretion when he allowed Hawkinson to testify concerning past and future loss of profits, nor was it error to submit Hawkinson’s claims for loss of profits and loss of future profits to the jury.
VI. THIRD-PARTY BENEFICIARY
The trial judge determined that Hawkinson, as a matter of law, was a third-party beneficiary of the Master Franchise Agreement between Robert and Linda and CWI. He framed the issue as whether the parties to the Master Franchise Agreement, Robert and Linda and CWI, intended to benefit Hawkinson, a franchisee, in a direct nonincidental manner.
The judge cited Parrish Chiropractic v. Progressive Cas., 874 P.2d 1049, 1056 (Colo. 1994), as the controlling authority on this issue. The Parrish court stated:
“A person not a party to an express contract may bring an action on the contract if the parties to the agreement intended to benefit the non-party, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract. [Citation omitted.] While the intent to benefit the non-party need not be expressly recited in the contract, the intent must be apparent from the terms of the agreement, the surrounding circumstances, or both. [Citation omitted.]”
The trial court explained that determination of the intent of the parties to a contract is a question of contract construction for the court. See Martin v. Edwards, 219 Kan. 466, 473, 548 P.2d 779 (1976). The trial court stated:
“While a court should be cautious in granting summary judgment where the issues of the case involve questions of the intent of the parties, summaryjudgment is nevertheless proper where the intent, as here, is clearly expressed in the contract and no fact question concerning the intent of the parties is presented. Noller v. General Motors Corp., 244 Kan. 612, 617, 772 P.2d 271 (1989).”
The trial court used the same standard it applied in determining whether Robert and Linda were third-party beneficiaries in deciding whether Robert and Linda and CWI, as the parties to the Master Franchise Agreement, intended to benefit Hawkinson, a franchisee, in a direct nonincidental manner. The trial court noted Article 7 of the Master Franchise Agreement sets out the obligations of the Master Franchisee.
“Among those obligations, the Master Franchisee promises by paragraph c: ... to maintain suitable office space for the Business Telephone Center (B.T.C.). The B.T.C. will provide administrative and marketing support for the Master Franchisee and for those Franchises that are established in the Master Franchise area.”
“Article 2 of the Master Franchise Agreement makes clear the intent of the parties:
“The demonstrations systems initially installed in the Business Telephone Center are for the use of the Sales Franchisees and sales people in the Master Franchisee’s territory . . . .”
The trial court determined as a matter of law that by the Master Franchise Agreement, CWI and Robert and Linda, as parties to the Master Franchise Agreement, intended to directly benefit a nonparty. A sales franchisee, such as Hawldnson, was such a non-party. Consequently, the judge denied Robert and Linda’s motion for summary judgment, wherein they claimed that Hawldnson was not a third-party beneficiaiy.
The judge provided sound analysis and applied appropriate facts to support his finding that, as a matter of law, Hawldnson was a third-party beneficiaiy of the Master Franchise Agreement. Therefore, tiiere was no error and this issue fails.
VII. JURY MISMANAGEMENT AND JURY MISCONDUCT
Robert and Linda argue that the cumulative effect of jury mismanagement and jury misconduct requires a new trial. They contend that the trial court erred in “secretly” instructing the jury as to the meaning of the word “tortious” and in failing to admonish the juiy prior to its overnight separation. Further, the jury committed misconduct in consulting outside sources as to the meaning of the word “tortious.”
A. Claims of judicial misconduct
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.” State v. Gadelkarim, 256 Kan. 671, Syl. ¶ 1, 887 P.2d 88 (1994).
See State v. Plunkett, 257 Kan. 135, Syl. ¶ 2, 891 P.2d 370 (1995).
During deliberations, the jury sent the court a note asking: “tortiously - what does that mean.” The judge sent the following note back to the jury, without giving notice to counsel:
“November 8,1995
3:42 p.m.
The use of that word is explained in instructions numbered 18 and 20.
Those describe and define tortious interference.”
K.S.A. 60-248(e) provides:
“If, after the jury has retired for deliberation, it desires further information as to any part of the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court in the manner directed by the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response to the request of the jury as the court finds to be required under the circumstances.”
In Howard v. Miller, 207 Kan. 246, 485 P.2d 199 (1971), the jury asked the judge whether an error in judgment was negligence, by way of a note handed to the bailiff. The exact form of the question was impossible to discern, as was the response from the judge because there was no record made of the question or the answer. Further, the judge never gave notice to the parties and counsel for the plaintiff learned of the communication after the jury had returned its verdict. In 1971, however, K.S.A. 60-248(e) (Corrick) provided:
‘“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of law shall be given, or the evidence shall be read or exhibited to them in the presence of, or after notice to, the parties or their counsel.’ ” Howard, 207 Kan. at 249.
Robert and Linda cite Howard because the court ruled that plaintiff, who lost, should be granted a new trial. The Howard court ruled that
“the question of contributory negligence was crucial to plaintiff. The private instruction may or may not have borne on this issue and its giving may or may not have affected the result. We do not know and because we are unable, from examination of the entire record, to declare the error harmless we must hold it to be reversible error and ground for a new trial.” 207 Kan. at 252.
Hawkinson cites Howard as authority for the following statement:
“Our cases [on private communication between judge and jury] appear to fall in two categories. First, in instances in which the facts were fully disclosed and all that was communicated by the judge to the jury was set forth in the record, and it affirmatively appeared no prejudice resulted from the communication, the irregularity was held not to be reversible error.” 207 Kan. at 249.
The communication from the judge did nothing more than refer the jury to other instructions for the definition of “tortious.” The judge erred in failing to provide notice to counsel as mandated by statute, but under the facts and circumstances of this case the error did not prejudice defendants. Thus, the error was harmless.
Robert and Linda further assert that it was prejudicial error for the judge to fail to admonish the jury after the first day of deliberations in violation of K.S.A. 60-248(d). K.S.A. 60-248(d) states:
“If the jurors are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or allow themselves to be addressed by, any other person on any subject of the trial; that it is their duty to keep an open mind and not to express an opinion on the subject of the trial until the case is finally submitted to them; and that the admonition applies to every separation of the jurors.”
During the first day of trial the judge gave the jury the following admonition:
“Ladies and Gentlemen, we’ll take our afternoon recess at this time. Keep in mind the admonition that I discussed with you earlier today. During this recess you will please not confer about this case with any other person, nor allow any other person to discuss the case with you. You will please not express any opinion about the case or form any fixed opinion until the case is finally submitted to you.”
At the end of the second day of trial, the trial judge admonished the jury prior to sending it to lunch. Also, on the second day of trial, before dismissing the jury for the evening, the judge told the jury to “[k]eep in mind the admonition that I’ve given you.” The judge recessed the jury until 1:30 p.m. on November 7, 1995. On November 7, the jury heard closing arguments and began deliberation. Gordon Rock’s affidavit states that “[w]hen the jury retired after the first day of deliberations, no notification was furnished to me by the court that they were ceasing deliberations for that day.” Rock also attests that court was not reconvened for the purpose of excusing the jury overnight and “[n]o admonition was given to the jury after the first day of deliberations prohibiting them from discussing the case or their deliberations with others, or not to consult outside authorities regarding these deliberations.” Further, he states that
“[ajfter the first day of deliberations, the jury was simply allowed to separate and disperse without admonition. Several of the jurors had already left the courtroom and several were filtering out of the courtroom, when it was discovered that the jurors had been separated and excused for the day.”
The jury reached a verdict on November 8, 1995.
When the trial judge erred by failing to admonish the jury on one occasion in State v. Ralls, 213 Kan. 249, 515 P.2d 1205 (1973), we affirmed the case. In Ralls, K.S.A. 22-3420(2) (Weeks), the criminal statute on admonition, applied. K.S.A. 22-3420(2) is the same as the 1972 version and nearly identical to the civil version of the statute. K.S.A. 22-3420(2) provides:
“If the jury is permitted to separate, either during the trial, or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with, or allow themselves to be addressed by any other person on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them, and that such admonition shall apply to every subsequent separation of the jury.”
In Ralls, the judge failed to admonish the jury immediately prior to their deliberations. Defendant claimed that the court was required to admonish the juiy at every separation and failure to do so entitled him to a new trial. The Ralls court stated that it would be better practice to admonish the jury at each separation, but held that “prejudicial error will not be presumed from one such failure in the absence of a showing of prejudicial misconduct on the part of the jurors resulting therefrom. No prejudice or misconduct appears in the record of this case.” 213 Kan. at 255. We hold substantial prejudice has not been shown.
B. Claims of jury misconduct
According to Robert and Linda, one juror consulted a dictionary and another juror consulted an outside attorney as to the meaning of “tortious.” Both jurors communicated their findings to the jury panel.
In State v. Goseland, 256 Kan. 729, 887 P.2d 1109 (1994), the appellant contended that a juror s consulting a dictionary for a definition of “reasonable” was ground for a new trial. The district court determined that appellant had not provided evidence from which it could be concluded that his rights were substantially prejudiced. The evidence “presented to the district court was an affidavit of Goseland’s trial counsel ‘detailing his conversation with the juror as well as another juror.’ ” 256 Kan. at 735. The Goseland court noted:
“ ‘In recent years, tins court has consistently adhered to the rale in both civil and criminal cases that juror misconduct is not a ground for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof.’ ” 256 Kan. at 735 (quoting State v. Fenton, 228 Kan. 658, Syl. ¶ 1, 620 P.2d 813 [1980]).
The record before us does not contain sufficient proof that Robert and Linda were substantially prejudiced by the alleged misconduct.
VIII. BREACH OF CONTRACT
Robert and Linda claim that the trial court erred in submitting Hawkinson’s claim for tortious interference with his existing Sales Franchise Agreement with CWI because the instruction permitted the jury to impose liability without finding that CWI had breached the contract. In Dickens v, Snodgrass, Dunlap & Co., 255 Kan. 164, 169, 872 P 2d. 252 (1994), the court delineated the elements necessary to prove tortious interference with a contract as: “(1) the contract; (2) die wrongdoer’s knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) damages resulting therefrom.” Robert and Linda further argue there was insufficient evidence to support the third, fourth, and fifth elements of the tort, as well as insufficient evidence of their malicious conduct. In addition to the five elements, “[a]n action for tortious interference with a contract is predicated on malicious conduct by the defendant.” Dickens, 255 Kan. 164, Syl. ¶ 1.
Instruction No. 17 stated that “[pjlaintiff’s second claim is that the defendants tortiously interfered with plaintiff’s contract with Communications World International by defendants’ intentional efforts to obtain the termination of plaintiff’s Sale Franchise Agreement, and by encouraging Communications World International to declare plaintiff in default.” Instruction No. 18 explained that in order for plaintiff to recover for tortious interference with a contract, the defendants must have induced the breach of the contract with actual malice. The instruction noted that “as used in this instruction, ‘actual malice’ means actual evil-mindedness or special intent to injure.” Instruction No. 21 set out the defense of justification.
As the issues already analyzed have shown, Hawkinson established sufficient evidence for all of the elements of this tort, except for an actual breach of his contract with CWI. The ultimate issue becomes whether CWI’s notice of default letter was a constructive breach which satisfies the element of breach for the tort, or whether the trial court improperly submitted this instruction, because CWI never actually terminated Hawkinson’s sales franchise.
The October 8,1992, letter stated that it was impossible for CWI to offer him “the opportunity to participate in the new franchise program in the Kansas City area at this time.” The letter also stated that “it is apparent that it is not in the best interest of any of the involved parties to attempt to maintain the franchise relationship as reflected by your current Agreement. If that relationship was working and if it was your desire to do so, CWI would continue to honor the Agreement.” Other pertinent language of the October 8 letter includes: “CWI would like to offer you the right to cancel your Agreement with CWI,” and “CWI regrets that the proposed resolution to this matter must necessarily involve the suggestion that your franchise be cancelled,” and “[i]n accordance with Article 12 of the Agreement, CWI is entitled to terminate the Agreement twenty (20) days from your date of receipt of this letter. However, CWI will delay enforcing its contractual right to terminate the Agreement and will instead use the next thirty (30) day period, as stated above, to seek an alternative resolution to this matter.”
On January 14, 1993, Hawkinson filed a petition for damages and injunctive relief in the District Court of Johnson County, Kansas. On January 14, 1993, the district court entered a restraining order against CWI, Robert and Linda, Southwest, West, and all others acting in concert or petition with them, “[t]o cease and desist and be enjoined from terminating the Franchise Agreement or from directly or indirectly denying Plaintiff the benefits of the Franchise Agreement.” Hawkinson and CWI entered into arbitration proceedings for 3 days in late August 1993, and 3 more days in late September 1993. The arbitrator entered a judgment and an award on November 10,1993, and such award and judgment were incorporated by reference and confirmed in its entirety by the Johnson County District Court on February 18, 1994. Hawldnson was awarded $35,635.67 against CWI and he was “determined to be an ‘eligible existing Franchisee’ and may elect, without charge, to take advantage of the opportunity to participate in the new franchise program.”
Robert and Linda rely on Pizza Management, Inc. v. Pizza Hut, Inc., 737 F. Supp. 1154 (D. Kan. 1990), as authority that a claim for tortious interference with an existing contract does not stand unless there is a true breach. At oral argument, counsel insisted that Pizza Management, Inc. mandated reversal of the judgment against Robert and Linda. Pizza Management, Inc. involved a suit brought by a franchisee against franchisor and was decided by applying Kansas law. The case came before the court on defendants’ (Pizza Hut, Inc.) (PHI) motion to dismiss. “In deciding a motion to dismiss, the court must accept as true on their face the well-pleaded factual allegations in the complaint and all reasonable inferences are drawn in favor of the plaintiffs. [Citation omitted.]” 737 F. Supp. at 1157. Further, “[t]he sufficiency of the complaint is not assessed from whether the plaintiff may ultimately prevail but from whether plaintiff is entitled to present evidence in support of its claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).” 737 F. Supp. at 1157.
The Pizza Management, Inc. court granted defendants’ motion to dismiss plaintiffs’ claim of tortious interference with a contract, but it did not set down the “cast in stone” rule alleged by Robert and Linda. Plaintiffs (PMI) alleged that in May 1986, they negotiated with John Finerty to acquire his outstanding stock in the “Pizza Hut” franchise in Spain, and reached an agreement with Finerty to accomplish the sale. PMI alleged that
“verbal approval from PepsiCo was obtained before the acquisition agreements were executed and that in reliance upon this approval they closed the purchase with Finerty and took over management of the franchise. PMI asserts it sought, during the closing of the stock transaction, written confirmation of the prior verbal approval, but PepsiCo denied the request.” 737 F. Supp. at 1163.
Thus, plaintiffs seek relief on the theory, among others, that PepsiCo’s denial of formal written confirmation of consent constitutes interference with the contract between PMI and Finerty. 737 F. Supp. at 1163.
Plaintiffs admit that Finerty did not breach his contract with PMI but aver that PepsiCo’s refusal to consent to the sale damaged PMI because it interfered with Finerty’s performance. The Pizza Management, Inc. court referred to its April 14, 1989, order, wherein it dismissed PHI’s claim against PMI for tortious interference with its agreements with other franchisees. The court noted that
“[c]iting George A. Fuller Co. v. Chicago Col. of Ost. Med., 719 F.2d 1326, 1330 n. 1, 1331 (7th Cir. 1983), this court held: ‘[ajbsent persuasive indicia that the Kansas Supreme Court would extend an action of interference with contract to any adverse impact or increased burden, short of a breach, this court will not do so.’ [Citation omitted.]” 737 F. Supp. at 1164.
Under Kansas law, anticipatory repudiation is a breach of contract. In Wilson v. National Refining Co., 126 Kan. 139, 266 Pac. 941 (1928), a lessee abandoned the leased premises and refused to pay rent for approximately 2 years of a 5-year lease. Lessor brought an action to recover damages for breach 5 months before the lease expired and lessee claimed that such action was premature. The Wilson court stated:
‘“Where there has been a renunciation of an executory contract by one party, the other party has a right to elect between the following remedies: (1) To rescind the contract and pursue the remedies based on such a recision. (2) To treat the contract as still binding and wait until the time arrives for its performance, and at such time to bring an action on the contract for breach. (3) To treat the renunciation as an immediate breach and sue at once for any damages he may have sustained.’ (13 C.J. 653)” 126 Kan. at 140.
Here, we hold that CWI breached the contract by improperly declaring Hawldnson in default of the contract and forcing him to arbitrate to prevent the termination of his contract, and that under the rules of anticipatory repudiation, he could treat this situation as an immediate breach of the contract.
Robert and Linda also claim that Hawldnson did not present sufficient evidence of malice. The arbitration proceedings were admitted into evidence and the findings set out in that judgment clearly support that Robert and Linda acted with malice. Among other findings supporting malice on the part of Robert and Linda, the arbitrator found:
“The Master Franchisee was a ‘family affair’ in that Robert and Linda Bennett (husband and wife) were involved as the Master Franchisee, both Bennett’s initially had their own individual Franchises under the Master; Stormy Bennett (Bob’s brother) had another Franchise under the Master; another of Bob’s brothers was initially involved with Stormy; and, the key employees of the Master were intertwined - Sharon and Karen are sisters, Cindy is a roommate of Karen, and the Bookkeeper (Pam Meek) is the sister-in-law of Sharon. Over the years, all ‘non-family’ franchisees, people such as Hawkinson, dropped out of the Kansas City Master Franchise except for Hawkinson. The Bennetts have no desire or intent to add to their Master Franchise any additional Franchisees; and, the Bennetts have a strong desire to remove Hawkinson from the system.”
These findings, in combination with letters that Robert and Linda wrote to CWI, show the element of malice. This issue fails.
IX. FIDUCIARY DUTY
Robert and Linda contend that the trial judge should have made the determination of whether a fiduciary relationship existed. They assert that a fiduciary duty is a question of law. Given Robert and Linda’s unique position as Master Franchisee, it was not error for the trial court to submit the question of whether a fiduciaiy duty existed to the jury.
In Robert and Linda’s own motion for summary judgment, they asserted a claim that they were third-party beneficiaries of the CWI/Hawkinson Agreement. In support of fhis argument, they argued that the sales franchisees were responsible for supplying the Master Franchisee detailed account records and for paying a royalty fee. “Further, the Bennetts point out that Hawldnson [was required to] pay the Master Franchisee for all equipment he purchases, order all products and installation work or service calls through the Master Franchisee, and pay the Master Franchisee a monthly fee for the business telephone center.” Although, Robert and Linda made this argument in terms of the third-party beneficiary claim, their own arguments support that they had a fiduciary relationship to Hawkinson.
Further, not only did Robert and Linda fail to provide the services that they were obligated to provide Hawkinson, they wrote numerous letters to CWI urging CWI to terminate Hawkinson s franchise.
Robert and Linda contend that a fiduciary obligation was not tied to any specific provision in the contract. They argue that the only provision in the Master Franchise Agreement allowed into evidence was Article 9(c) and that a fiduciary relationship is not established by Article 9(c). (“The Master Franchisee is encouraged to recruit salespeople who can develop to become Sales Franchisees, but the activities of the salespeople must not detract from the results of the Sales Franchisees nor hinder the Sales Franchisees from generating sales for their own account. The Master Franchisee will be responsible for insuring that conflicts do not arise between expansion and the rights of the Sales Franchisees.”)
Even if Robert and Linda’s obligation is not tied to a specific clause of the contract, Hawkinson, nevertheless, has a valid claim that a fiduciary relationship existed because of the overall intent of the CWI/Robert and Linda Master Franchise Agreement. One of the purposes for establishing a Master Franchisee was for the Master Franchisee to help the sales franchisees. In exchange for helping the sales franchisees, the sales franchisees were obligated through their Agreements with CWI to pay the Master Franchisee.
Robert and Linda each owed Hawkinson a fiduciary duty because they both signed the Master Franchise Agreement and they both conducted business as if they were partners in the Master Franchise. Hawkinson presented sufficient evidence that Robert and Linda jointly breached their fiduciary duty. Robert and Linda argue that because one or the other did not deal with some of the alleged business relationships, there was insufficient evidence to submit a claim for damages against them for those business relationships. As fiduciaries, however, they owed Hawkinson the utmost duty of fair dealing and good faith and even if Robert and/or Linda did not deal with a business entity, under the Master Franchise Agreement they were responsible for one another’s acts. Thus, it is unnecessary to examine each business entity individually and determine whether Linda and/or Robert had any dealings with that entity.
Further, the jury did not have to find that Robert and Linda breached a fiduciary duty in all of the possible ways proposed in Instruction No. 22. The instruction stated that the jury had to decide if Robert and Linda had breached a fiduciary duty in one or more of the ways listed. There was clearly sufficient evidence that Robert and Linda sought the termination of Hawkinson’s sales franchise and that they encouraged CWI to declare Hawkinson in default.
X. PUNITIVE DAMAGES
Robert and Linda assert that Hawkinson’s claim for tortious interference with prospective business relations was redundant with his contract claim and, consequently, it was an improper basis for the claim of punitive damages. Further, they contend that there was insufficient evidence to support submitting the issue of punitive damages against both Robert and Linda to the jury.
A. Standard of review
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
B. Sufficiency of evidence
In Smith v. Printup, 262 Kan. 587, 596, 938 P.2d 1261 (1997), the court stated:
“Prior to the enactment of K.S.A. 60-3701 and 60-3702, which places the calculation of the amount of punitive damages with the trial court instead of a jury, we applied an abuse of discretion standard when reviewing a punitive damages award. [Citations omitted.]” The Smith court further explained:
“Subject to the provisions of K.S.A. 60-3701, the standard of review remains one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3701 have been applied by the trial court in setting the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion, which is another way of saying that the action of the trial court was arbitrary, capricious, or unreasonable. See Ensminger v. Terminix Intern. Co., 102 F.3d 1571 (10th Cir. 1996). We also have stated that ‘[w]hen determining the amount of punitive damages to be awarded under K.S.A. 1992 Supp. 60-3701, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review thereof.’ [Citing Gillespie v. Seymour, 253 Kan. 169, Syl. 1, 853 P.2d 692 (1993) (Gillespie II).]” 262 Kan. 597.
Instruction No. 26 stated:
“In connection with his claims of breach of fiduciary duty, tortious interference with contract and tortious interference with prospective business relations, the plaintiff claims the defendants Robert and Linda Bennett acted in a willful, wanton or malicious manner toward plaintiff entitling him to punitive damages in addition to actual damages. If you find the plaintiff is entitled to recover actual damages for any one or more of those three claims, then you may consider whether punitive damages should also be allowed. Punitive damages may be allowed in the jury’s discretion to punish a defendant and to deter others from like conduct.
“In order for the plaintiff to be entitled to punitive damages the burden is on the plaintiff to prove by clear and convincing evidence that the actions of the defendants Robert and/or Linda Bennett with respect to one or more of those three claims were willful, wanton or malicious. Clear and convincing evidence means evidence that is certain, unambiguous and plain to the understanding and so reasonable and persuasive as to cause you to believe it.
“If you find that the defendants Robert and/or Linda Bennett did one or more of the acts referred to above claimed by the plaintiff and find that plaintiff is entitled to actual damages, you should then determine whether clear and convincing evidence has been presented that the defendants, or either of them, did one or more of those acts in a willful, wanton or malicious manner. If you make the determination it has been, you may decide whether punitive damages should be allowed against either or both defendants and your finding should be entered on the verdict form. After the trial the court will conduct a separate hearing to determine the amount of punitive damages to be allowed.”
The jury determined that both linda and Robert had acted in a willful, wanton, or malicious manner toward Hawkinson on one of Hawkmson’s claims of breach of fiduciary duty, tortious interference with a contract, and tortious interference with prospective business relations. It is impossible to know on which of tírese claims the jury based its decision, but there was clearly sufficient evidence to support punitive damage against Robert and Linda in connection with at least one of the three claims, if not all claims. Thus, it was not error to submit this instruction.
C. Tortious interference and contract claim
Even if Hawldnson s claim for tortious interference with prospective business relations was redundant of his contract claim, the jury may have decided punitive damages were appropriate for a reason other than tortious interference with prospective business relations, or the contract claim involving interference with prospective business relations. Instruction No. 26, as set out above, allowed the jury to consider punitive damages upon a finding that plaintiff was entitled to recover actual damages for any one or more of the three claims of breach of fiduciaiy duty, tortious interference with a contract, and tortious interference with prospective business relations.
Thus, the jury may have found that Hawldnson was entitled to punitive damages only due to Robert and Linda’s breach of fiduciary duty. The jury was only required to find one reason for awarding punitive damages. Therefore, Robert and Linda’s claim under this issue fails.
We have examined appellants’ arguments and do not find reversible error either individually or combined.
Affirmed. | [
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|
In a letter dated June 26, 1998, to the Clerk of the Appellate Courts, respondent Walter John Badke II, of Wichita, an attorney admitted to practice law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (1997 Kan. Ct. R. Annot. 232).
At the time respondent surrendered his license, there was a six-count complaint scheduled for a hearing before a panel of the Kansas Board for Discipline of Attorneys. The complaint contained allegations of not acting within the scope of representation, in violation of MRPC 1.2 (1997 Kan. Ct. R. Annot. 273); lack of diligence in handling a matter for clients, in violation of MRPC 1.3 (1997 Kan. Ct. R. Annot. 276); lack of communication with clients, in violation of MRPC 1.4 (1997 Kan. Ct. R. Annot. 282); and misconduct involving deceit or misrepresentation, in violation of MRPC 8.4(c) (1997 Kan. Ct. R. Annot. 366).
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Walter John Badke II be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Walter John Badke II 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 respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1997 Kan. Ct. R. Annot. 235).
Dated this 1st day of July, 1998. | [
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|
The opinion of the court was delivered by
Davis, J.:
Gerry Lee Cherry was convicted of manufacturing or attempting to manufacture methamphetamine (meth), illegal possession of pseudoephedrine or ephedrine, possession of drug paraphernalia, and possession of meth and was sentenced to a controlling term of 96 months. In State v. Cherry, No. 88,462, unpublished opinion filed May 23, 2003, the Court of Appeals affirmed the convictions but remanded for resentencing pursuant to State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). The defendant’s petition for review and the State’s cross-petition for review were granted by this court pursuant to K.S.A. 20-3018(b).
We granted the State’s cross-petition for review regarding the defendant’s sentence. He was sentenced with a downward departure for a severity level 1 felony on the conviction of possession of pseudoephedrine or ephedrine. The Court of Appeals vacated this sentence and remanded for sentencing as a severity level 4 felony. The Court of Appeals reasoned that under the facts of this case, the charged offense of possession of pseudoephedrine or ephedrine (level 1) and the offense of possession of drug paraphernalia (level 4) are identical offenses. Thus, on the charged offenses, the defendant’s sentence must be limited to a severity level 4 sentence.
We granted the defendant’s petition for review regarding the admission of footprints at the scene and more importantly regarding the jury instruction on the manufacturing or attempting to manufacture meth. Only one instruction was given on manufacturing and attempting to manufacture meth. The defendant was convicted of manufacture or attempted manufacture of meth. The Court of Appeals acknowledged that the instruction incorporated two separate offenses but reasoned that the jury verdict would not have been different if a separate instruction had been given on the attempt because the only evidence admitted at trial was that the defendant manufactured meth. In his petition for review, the defendant claims that the footprint evidence should not have been admitted, the instruction given was clearly erroneous in that the juiy was misled, and a different result would follow if the jury had been properly instructed. The facts necessary for the issue regarding the admission of footprints evidence are set forth in our discussion and resolution of that issue.
State’s Cross-Petition for Review Issue
In its cross-petition, the State argues that the Court of Appeals erred in vacating the defendant’s downward departure sentence of 96 months for a severity level 1 drug felony (138-154 months), on the conviction of possession of pseudoephedrine or ephedrine and remanding to the district court for a severity level 4 drug felony (10-12 months) sentence on the same charge under State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). Resolution of this issue involves the interpretation of statutes which is a question of law permitting unlimited review. State v. Engles, 270 Kan. 530, 532, 17 P.3d 355 (2001). The following statutes in effect at the time of the offense are applicable to this analysis.
K.S.A. 2000 Supp. 65-7006 provided in relevant part: “(a) It shall be unlawful for any person to possess ephedrine, pseudoephedrine or phenylpropanolamine, or their salts, isomers or salts of isomers with intent to use the product as a precursor to any illegal substance.” A violation of this section is a drug severity level 1 felony. K.S.A. 2000 Supp. 65-7006(d).
K.S.A. 2000 Supp. 65-4152, provided in relevant part: “(a). No person shall use or posses with intent to use: ... (3) any drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, sell or distribute a controlled substance in violation of the uniform controlled substances act.” Violation of this subsection other than by planting, propagation, growing, or harvesting less then five marijuana plants, is a drug severity level 4 felony. K.S.A. 2000 Supp. 65-4152(c).
K.S.A. 65-4150(c) defines drug paraphernalia as
“all equipment, products and materials of any land which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of the uniform controhed substances act.”
Drug paraphernalia includes but is not limited to:
“(2) Kits used or intended for use in manufacturing, compounding, converting, producing, processing or preparing controlled substances.
....
“(8) Blenders, bowls, containers, spoons and mixing devices used or intended for use in compounding controlled substances.” K.S.A. 65-4150(c)(2), (8).
In Frazier, the defendant was convicted of possession of ephedrine or pseudoephedrine, a drug severity level 1 felony, pursuant to K.S.A. 2001 Supp. 65-7006(a), and he argued on appeal that the conduct for which he was convicted also fell under the statute prohibiting possession of drug paraphernalia, a drug severity level 4 felony, pursuant to K.S.A. 2001 Supp. 65-4152(a)(3). The Court of Appeals found that possession of ephedrine or pseudoephedrine and possession of drug paraphernalia are identical offenses because both offenses prohibit the possession of ephedrine or pseudoephedrine for use in the manufacture of a controlled substance, and ephedrine and pseudoephedrine fall within the definition of drug paraphernalia because they are materials used to manufacture a controlled substance. As the offenses were identical, the defendant could only be sentenced for a drug severity level 4 felony. 30 Kan. App. 2d at 403-06. See State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989) (“Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.”).
In this case, the State argues that the Court of Appeals erred in relying upon Frazier because it was incorrectly decided. The State argues that the elements of possession of drug paraphernalia and the elements of possession of ephedrine or pseudoephedrine are not identical; that the defendant could only be charged and convicted under the more specific possession of ephedrine or pseudoephedrine statute rather than the general drug paraphernalia statute; and that the legislative intent of K.S.A. 2000 Supp. 65-7006 was to create a specific crime addressing and punishing one kind of drug paraphernalia more severely than the other kinds of drug paraphernalia covered by the general statute, K.S.A. 2000 Supp. 65-4152(a)(3).
We recently rejected the State’s arguments in State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005). Campbell came before this court on petition for review from a Court of Appeals’ decision which had declined to follow Frazier. State v. Campbell, 31 Kan. App. 2d 1123, 78 P.3d 1178 (2003). After examining the legislative history and language of the statutes, the Campbell panel concluded that possession of ephedrine or pseudoephedrine was the more specific statute which controlled over the more general possession of drug paraphernalia statute, that K.S.A. 65-4152(a)(3) and K.S.A. 65-7006 were not identical offenses, and that 65-7006 was intended to criminalize possession and uses of specific substances which are used as a precursor to any illegal substance. 31 Kan. App. 2d at 1134-37.
In reversing on appeal, we found it was unnecessary to consider the legislative history because the statutes were not ambiguous and the legislative intent was clear. Unlike either the Frazier or Campbell panels, we recognized three situations where a defendant’s conduct may fall within two statutes (1) where one statute defines a lesser included offense of the other and they carry different penalties, (2) where the statutes overlap and carry different penalties, and (3) where the statutes are identical. 279 Kan. at 14 (quoting 4 LaFave, Israel & King, Criminal Procedure, § 13.7[a], pp. 95-99 [2d ed. 1999]). We found that “the unfettered prosecutorial discretion that is the mischief of some courts, including Kansas courts, seek to avoid is significantly curbed when the statutes are overlapping, as contrasted with identical or duplicative statutes.” 279 Kan. at 15. We agreed with the ultimate conclusion of Frazier, if not the exact reasoning:
“With regard to guidance in prosecutorial charging decisions, the statutes at issue here are overlapping rather than duplicative, which as described in LaFave, Israel & King present the hard case because to the extent of any overlap, the conduct involved is identical. The conduct prohibited by K.S.A. 65-7006(a) is a defendant’s act of knowingly possessing ephedrine or pseudoephedrine with the intent to use the product to manufacture a controlled substance. The conduct prohibited by K.S.A. 65-4152(a)(3) is a defendant’s act of knowingly possessing drug paraphernalia with the intent to use it to manufacture a controlled substance. The definition of drug paraphernalia in K.S.A. 65-4150(c) includes products and materials of any land’ which are intended for use in manufacturing a controlled substance. Thus, the conduct prohibited by K.S.A. 65-4152(a)(3) may include a defendant’s act of knowingly possessing a product with the intent to use it to manufacture a controlled substance. Ephedrine and pseudoephedrine are products used in the manufacture of a controlled substance, methamphetamine. Indeed, in K.S.A. 65-7006(a) the legislature used the term product’ as a synonym for ephedrine or pseudoephedrine. In the circumstances of this case, the elements of the offense were knowingly possessing ephedrine or pseudoephedrine with the intent to use it to manufacture a controlled substance. The elements were the same whether Campbell had been charged under the ephedrine statute or the drug paraphernalia statute. Consequently, he must be sentenced under the lesser penalty provisions for violation of 65-4152(a)(3).”
Likewise, in this case, the elements of K.S.A. 2000 Supp. 65-7006, possession of ephedrine or pseudoephedrine, and K.S.A. 2000 Supp. 65-4152(a)(3), possession of drug paraphernalia with the intent to use it to manufacture a controlled substance, were overlapping rather than identical. Campbell thus counsels that the defendant should have been sentenced under the lesser penalty provisions of K.S.A. 2000 Supp. 5-4152(a)(3), a severity level 4 felony. While the Court of Appeals reliance upon Frazier was misplaced in light of Campbell, it properly reversed and remanded the case for resentencing of the possession of ephedrine or pseudoephedrine conviction as a severity level 4 felony.
The Defendant’s Petition for Review
A. jury Instruction
“No party may assign as error the giving or failure to give an instruction, including a 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. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” State v. Boone, 277 Kan. 208, Syl. ¶ 8, 83 P.3d 195 (2004).
The defendant argues that the district court erred by failing to instruct the jury on the elements of attempting to manufacture meth. The defendant was charged and convicted of manufacture or attempted manufacture of meth in violation of K.S.A. 2000 Supp. 65-4152. At trial, the following relevant jury instruction was given without objection:
“The defendant is charged with the crime of unlawfully manufacturing or attempting to manufacture a controlled substance. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant manufactured or attempted to manufacture a controlled substance known as amphetamine or methamphetamine;
2. That the defendant did so intentionally; and
'3. That this act occurred on or about the 2nd day of May, 2001, in Pratt County, Kansas.”
On appeal, the Court of Appeals found that while the attempt to manufacture meth and the manufacture of meth were two separate offenses, the failure to give an attempt instruction was not clearly erroneous in this case. The panel reasoned that the jury’s verdict would not have been different if the attempt instruction had been given because no substantial evidence was presented to support an attempt conviction. It pointed to evidence that meth oil was produced which simply needed to be filtered in order for the meth to be usable and noted that K.S.A. 65-4159(a) does not require meth to be in usable form.
On petition for review, the defendant argues the instructions given misstated the law and the Court of Appeals’ conclusion was erroneous for two reasons. First, he contends the panel failed to view the evidence of an attempt to manufacture in the light most favorable to the defendant so as to warrant giving the lesser included instruction on attempt. With this instruction, he contends a real possibility exists that the jury would have reached a different verdict. Second, he argues that the instructions were clearly erroneous because the court failed to give a proper instruction of either offense under State v. Foster, No. 87,154, unpublished opinion filed September 6, 2002.
Kansas case law supports the defendant’s argument that the jury instruction in this case misstated the law. An attempt to manufacture meth and the manufacture of meth are two separate offenses. State v. Martens, 274 Kan. 459, 54 P.3d 960 (2002). In order to prove the crime of manufacture of meth, the State must show that the defendant “(1) intentionally (2) completed the manufacture of methamphetamine or (3) could have successfully manufactured methamphetamine.” Martens, 274 Kan. at 466. Attempted manufacture of meth is proven by demonstrating that the defendant “(1) performed an overt act toward the commission of a certain crime, (2) did so with the intent to commit the crime, and (3) failed to perpetrate the crime or was prevented or intercepted in the execution of the crime.” 274 Kan. at 466.
In State v. Peterson, 273 Kan. 217, 223, 42 P.3d 137 (2002), the jury was given an instruction which combined the offenses of manufacture and attempt to manufacture meth. The defendant’s request for a lesser included instruction on attempt was denied. On appeal, this court found that attempt to manufacture meth may be considered a lesser included offense of the manufacture of meth and, thus, the instructions given by the trial court, when considered as a whole, failed to properly and fairly state the law and were likely to mislead the jury. 273 Kan. at 223.
In State v. Capps, 33 Kan. App. 2d 37, 40, 99 P.3d 138 (2004), the panel concluded that an attempted manufacture of meth jury instruction which simply added the word “attempted” to the PIK instruction for manufacture of meth was “woefully inadequate and clearly erroneous.” The court found that the three elements of attempt discussed in Martens are essential, and the jury especially needed to hear that an overt act is something more than mere preparation. The panel found that although a clearly erroneous standard was applicable, the trial court has a duty to define the offense charged, stating the essential elements of the crime, and a juiy instruction which omits an essential element of the crime is clearly erroneous.
These cases correctly provide that the instruction given in this case was erroneous because it misstated the law by combining two offenses which contain different essential elements. In order to be clearly erroneous, however, a real possibility that the juiy would have returned a different verdict must exist. The Court of Appeals and the defendant focus on whether evidence was presented which would support an attempt to manufacture meth conviction in determining if the juiy would have reached a different conclusion. This analysis misses the point.
Based upon the instructions given, the jury convicted the defendant of not just manufacturing meth, but manufacturing meth or attempted manufacturing of meth, and the instructions failed to set forth the proper elements of either offense. Where two separate crimes are charged in one information and the trial court instructs the jury in the language of the information failing to identify the proper elements of either offense, the resulting guilty verdict to both crimes must be reversed.
In this case, while the journal entry characterizes the conviction as manufacture of meth and erroneously cites subsection (b)(1) of K.S.A. 65-4159, of which subsection (b)(1) was omitted from the 2000 Supplement applicable to this case, the jury found the defendant guilty of unlawfully manufacturing or attempting to manufacture a controlled substance on the verdict form. If the proper instructions had been given, the verdict would have been different because the defendant could only have been convicted of one crime or the other. The instruction given in this case was clearly erroneous because it misstated the law and, absent this error, a real possibility exists that the jury would have returned a different verdict. The defendant’s conviction for unlawfully manufacturing or attempting to manufacture a controlled substance must be reversed and the case remanded for new trial.
B. Admission of Footprints Evidence
The defendant argues that the district court abused its discretion by admitting evidence of footprints without proper foundation when the shoes were never admitted into evidence. The admission of evidence is within the district court’s discretion. Discretion is abused when the district court’s action is arbitrary, fanciful, or unreasonable. State v. Pennington, 276 Kan. 841, 844, 80 P.3d 44 (2003).
Detective Jeff Ward took photographs of footprints found at the scene amongst lithium battery strips and packaging materials. A ruler next to the footprints demonstrated their size. Prior to trial, the defense filed a motion in limine seeking to exclude Ward’s testimony that the footprints found at the crime scene matched the defendant’s shoes. The defense argued that scientific verification or expert testimony was necessary to draw that correlation and the defendant’s shoes were a common brand. The district court denied the motion after a hearing.
At trial, Ward relayed his observations that the size and tread of the shoes the defendant was wearing when questioned later that day matched one of the footprints, and the tread of the sandals worn by a codefendant matched the other footprint. Ward explained that the defendant’s shoes had a distinctive pattern that looked like a “burro’s head.” The defense did not object to this testimony; however, it did object to the admission of the photographs for the reasons it had discussed at the pretrial hearing.
Although Ward and Miller identified the shoes as belonging to the defendant, the district court refused to admit the defendant’s shoes into evidence at trial because the State failed to establish a proper chain of custody — the jailer who physically removed the shoes from the defendant’s feet did not testify at trial.
The Court of Appeals found that the defense had failed to preserve this evidentiary issue for review by not objecting to Ward’s testimony regarding the footprints. Nevertheless, it found that Ward’s testimony regarding the distinctive tread pattern was admissible under State v. Jackson, 220 Kan. 675, 678, 556 P.2d 885 (1976). Jackson provides that “expert testimony is not required for footprint testimony and a lay witness is generally allowed to give such testimony provided he bases his conclusion on measurements or peculiarities of the tracks.” 220 Kan. at 678.
On petition for review, the defendant argues that Ward’s testimony and photographs were highly prejudicial and were not sufficiently based on the measurements or peculiarities of the tracks to be admissible under Jackson. He also argues that Ward’s conclusion was not based on proper foundation, reasoning that Ward needed to do more than measure the footprint and make a quick visual observation of the shoes, such as measuring the actual shoes, making a-plaster cast of the footprints, determining how common the shoes were, or testing to see if the shoes matched the footprints at the scene.
The defendant’s argument ignores the two critical facts that support the Court of Appeals’ decision. First, the defense did not object to Ward’s testimony comparing the footprints to the defendant’s shoes — it only objected to the admission of the photographs. A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. State v. Kunellis, 276 Kan. 461, 477, 78 P.3d 776 (2003). As such, the defendant has not properly preserved this issue for appeal.
Second, even if the court found the issue was preserved based on the objection to the photographs, the defendant’s argument is without merit. Although he acknowledges that lay witnesses may provide footprint testimony based on “measurements or peculiarities of the tracks,” he overlooks the fact that the detective did in fact testily that he based his decision on the distinctive treads which looked like a “burro’s head.” The Court of Appeals properly concluded that the district court did not abuse its discretion in admit ting this evidence because it satisfied the Jackson test. This analysis also renders the defendant’s argument regarding cumulative error moot.
The defendant’s convictions of possession of pseudoephedrine or ephedrine, possession of drug paraphernalia, and possession of meth are affirmed, his sentence on the possession of pseudoephedrine or ephedrine conviction is vacated, and the case is remanded for resentencing. The defendant’s conviction for manufacture or attempt to manufacture meth is reversed and remanded for further proceedings.
The judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded. Judgment of the district court is affirmed in part and reversed in part.
GERNON and BEIER, JJ., not participating.
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The opinion was delivered by
Luckert, J.:
This case requires us to decide whether the State may, in its discretion, withdraw from a plea agreement when a case is remanded with directions to resentence the defendant to a lesser penalty based on the holding in State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004) (defendant convicted of manufacturing methamphetamine should have been sentenced to a severity level 3 drug felony rather than a severity level 1 drug felony).
As part of a plea agreement, Charles D. Boley pled no contest to one count of attempt to manufacture methamphetamine, in violation of K.S.A. 65-4159(a) and K.S.A. 21-3301, a severity level 1 drug felony. Originally, Boley had been charged with this offense, or, alternatively, with manufacture of methamphetamine and with conspiracy to manufacture methamphetamine, in violation of K.S.A. 65-4159(a) and K.S.A. 21-3302. Pursuant to the plea agreement, the State dismissed the conspiracy charge and agreed to recommend a downward durational departure sentence of 48 months’ imprisonment. The district court accepted the plea after questioning Boley to ascertain the voluntariness of his plea.
Before sentencing, Boley argued to the district court that the conviction should carry a severity level 3 felony penalty under K.S.A. 65-4161(a) or, alternatively, should be a misdemeanor under K.S.A. 65-4127c rather than a severity level 1 felony. The district court found that Boley had agreed to plead guilty to a severity level 1 felony, but did impose the 48-month downward departure sentence recommended by the State.
Boley appealed. In State v. Boley, 32 Kan. App. 2d 1192, 95 P.3d 1022 (2004), the court (Boley Court of Appeals) reversed the district court on the sentencing issue based upon McAdam, 277 Kan. 136 and State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004) (applying McAdam to cases pending on direct appeal). The State did not seek review of this holding.
In addition, the Boley Court of Appeals remanded the case for resentencing and ruled that because resentencing would frustrate the State’s purpose in entering the plea agreement, upon remand the State could withdraw from the plea agreement and refile the charges that were dismissed pursuant to that agreement or choose to perform under the plea agreement as modified. See 32 Kan. App. 2d 1192, Syl. Boley petitioned for review of this portion of the decision, and this court granted his petition for review.
Upon Remand for Resentencing Pursuant to McAdam Should the State be Released From its Obligation to Abide by the Plea AgreementP
In his petition for review, Boley first argues we need not review the analysis of the Boley Court of Appeals because — except for the fact that he objected to the severity level of his crime before the district court — his case is in exactly the same procedural posture as Barnes, which required the case to be remanded for resentencing under the rule announced in McAdam and nothing more. See 278 Kan. at 127-28. The Barnes court, however, did not rule on the status of a defendant’s plea agreement on remand because that issue was not raised by the parties. Thus, Barnes does not control.
In his brief, Boley also cites several other decisions. However, much like Barnes, the issue of whether the State could withdraw from the plea agreement was not addressed in any of those opinions because it was not raised by the parties. See State v. Santos-Garza, 276 Kan. 27, 72 P.3d 560 (2003) (vacated agreed-upon upward durational departure sentences as illegal sentences and remanded for resentencing); State v. Cullen, 275 Kan. 56, 60 P.3d 933 (2003) (vacated agreed-upon upward durational departure sentences as illegal sentences and remanded for resentencing); State v. Pruitt, 275 Kan. 52, 60 P.3d 931 (2003) (vacated agreed-upon upward durational departure sentences as illegal sentences and remanded for resentencing); and State v. Haskins, 262 Kan. 728, 730-32, 942 P.2d 16 (1997) (Since no plea agreement existed, the State could not violate the plea agreement by informing the trial court of defendant’s true criminal history score; if there had been a plea agreement, the trial court would not have been bound by it and would have been required to sentence defendant according to his true criminal history score.)
Thus, we examine the Boley Court of Appeals’ analysis and determination that the State could withdraw from the plea under the frustration of purpose doctrine. In reaching this holding, the court relied primarily on United States v. Bunner, 134 F.3d 1000 (10th Cir.), cert. denied 525 U.S. 830 (1998). In Bunner, the defendant pled guilty to using a firearm during the commission of a drug trafficking offense, see 18 U.S.C. § 924(c) (2000), as part of a plea bargain where the government agreed to dismiss the remaining charges. Three years later, the United States Supreme Court ruled that the defendant’s conduct no longer constituted a violation of 18 U.S.C. § 924(c). After the defendant successfully challenged his sentence and his sentence was vacated, the government moved to reinstate the previously dismissed charges.
The Tenth Circuit Court of Appeals held that a defendant’s successful post-plea challenge to his sentence did not repudiate his plea agreement; however, it did frustrate the government’s purpose in entering into the plea agreement. Therefore, under the frustration of purpose doctrine, the government could choose to be discharged from its obligations under the plea agreement and reinstate the previously dismissed charges. 134 F.3d at 1005.
In following Bunner, the Boley Court of Appeals noted that this court has previously applied contract law principles to the construction of plea agreements. Indeed, we have noted that “while principles of contract law cannot be blindly incorporated into the area of plea bargaining, they provide a useful analytical framework.” State v. Smith, 244 Kan. 283, 285, 767 P.2d 1302 (1989). A plea agreement is premised upon an expectation that tire terms will be honored by each party and that redress is available when necessary in the courts. Santobello v. New York, 404 U.S. 257, 260-62, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). With predictability and reliance as the foundation of the plea bargaining, so long as we remain mindful of the constitutional implications of the plea bargaining process which may require a different analysis in some circumstances, see State v. Wills, 244 Kan. 62, 65-66, 765 P.2d 1114 (1998), application of fundamental contract principles is generally the best means to fair enforcement of the parties’ agreed upon obligations.
Contract analysis appropriately begins with the first issue considered by the Tenth Circuit in Bunner. Did the defendant breach the plea agreement by challenging his sentence? The Bunner court rejected this argument, noting that nothing in the plea agreement suggested the defendant had relinquished his right to attack his sentence. 134 F.3d at 1004. Similarly, Boley did not agree to recommend any particular sentence, and the plea agreement did not prohibit him from seeking a lesser sentence. Additionally, Boley did not waive his right to argue the severity level of his crime or to appeal his sentence. Despite this, the State argues Boley agreed to plead to a severity level 1 crime and the severity level was a material provision of the agreement. The State’s argument blurs the distinction between the conviction and the sentence. Boley’s conviction stands; what changes is the length of his sentence.
In Kansas,
“ail plea discussions are premised upon an understanding that such agreements are not binding upon the trial judge. Thus, when a plea agreement of guilty is tendered or received as a result of a prior plea agreement, the trial judge may give the agreement consideration, but is not bound by its terms and can reach an independent decision on whether to approve a negotiated charge or sentence concessions.” State v. Hill, 247 Kan. 377, 385, 799 P.2d 997 (1990).
See K.S.A. 21-4713 (listing the actions prosecutor may take under plea agreements; prosecutor may recommend sentence); State v. Ford, 23 Kan. App. 2d 248, 253, 930 P.2d 1089 (1996), rev. denied 261 Kan. 1087 (1997) (parties to a plea agreement cannot contract for specific sentence). Therefore, there could not have been an agreement as to the sentence and, contrary to the district court’s ruling, Boley did not breach the agreement by attacking his sentence.
The Tenth Circuit in Bunner and the Boley Court of Appeals in this case next considered whether the defendant’s actions frus trated the purposes that tire parties had hoped to achieve through the plea agreement. The frustration of purpose doctrine is stated in the Restatement (Second) of Contracts § 265 (1979):
“Where, after a contract- is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.”
The Bunner court stated the considerations and elements of the frustration of purpose doctrine:
“When two parties enter into a contract, each has an object or purpose for which [that party] joins tire transaction. See Arthur Linton Corbin, Corbin on Contracts § 1353 (1962). These purposes form the basis of the agreement, absent which neither party would consent to be bound. Occasionally, however, through no fault of either party, a reasonably unforeseeable event intervenes, destroying the basis of the contract and creating a situation where performance by one party will no longer give the receiving party what induced [that party] to enter into the contract in the first place. [Citation omitted.] Although the supervening event does not render performance impossible, one party’s performance becomes virtually worthless to the other. See Restatement [Second of] Contracts § 265 (1979). When this occurs, the aggrieved party is discharged from performing under the doctrine of frustration of purpose. Corbin on Contracts § 1353.” 134 F.3d at 1004.
The Bunner court identified the parties’ purposes in entering into the plea agreement, noting that both parties entered the agreement to avoid the uncertainty of a jury verdict. The defendant also hoped to avoid the risk of being convicted on all of the original charges, and the government wanted to ensure the defendant would serve time for violating 18 U.S.C. § 924(c). See 134 F.3d at 1004-05.
The Bunner court concluded that once the defendant successfully challenged his sentence and his sentence was vacated, he was completely relieved of his obligations under the plea agreement and his performance became worthless to the government. Furthermore, because the underlying purpose of the agreement had been frustrated and the basis of the government’s bargain had been destroyed, the government’s obligations under the agreement became dischargeable, and the court held that the government could choose to withdraw from the agreement and reinstate the original charges. 134 F.3d at 1005.
In the instant case, the Boley Court of Appeals applied the Bunner reasoning as follows:
“Here, both parties operated on the assumption that tire defendant would be convicted under K.S.A. 65-4159(a), a drug severity level 1 offense, in exchange for dismissal of other offenses in the complaint. The parties then agreed that the State would recommend a downward durational departure sentence of 48 months. By successfully challenging his severity level of conviction under McAdam, the defendant would receive a new sentence of 17-19 months. While, unlike in Bunner, the State has not lost its entire bargained-for value, the significant reduction in sentence clearly frustrates the State’s intended purpose in seeking a plea to a conviction under K.S.A. 65-4159(a). Consequently, the plea agreement should be deemed voidable at the discretion of the prosecutor.” 32 Kan. App. 2d at 1198-99.
Unlike the Tenth Circuit, however, the Boley Court of Appeals did not examine the elements of the frustration of purpose doctrine. The elements of the doctrine are enumerated in the Restatement (Second) of Contracts § 265, comment a. The first step in applying the doctrine is to determine whether the frustrated purpose was “so completely the basis of the contract that . . . without it the transaction would make little sense.” Restatement (Second) of Contracts § 265, comment a. In Burner, the State’s purpose in entering into the plea agreement was entirely frustrated when it was determined that the defendant’s conduct was not a violation of 18 U.S.C. § 924(c).
In contrast, in this case, the State’s purposes were achieved. Through the plea agreement, the State avoided a trial and the attendant risk of a not guilty verdict, i.e., the State obtained a conviction of a severity level 1 drug felony without having to prove the defendant guilty beyond a reasonable doubt before a jury. Additionally, the defendant served time in prison, albeit not as much time as the State expected. Because the plea agreement did not and could not bind the sentencing court, the State, in entering into the agreement, could not be assured of a specific sentence and, therefore, the length of the sentence cannot be considered to “be so completely the basis of the contract that without it the transaction would make little sense.”
However, according to the Boley Court of Appeals, when Boley successfully attacked his sentence, with the result that he would receive only a 17-19 month sentence, the State’s purpose in entering the plea bargain was at least partially frustrated. Although true, this analysis does not comport with application of the frustration of purpose doctrine. The Restatement defines the second element of the doctrine by stating: “[T]he frustration must be substantial. It is not enough that the transaction has become less profitable for the affected parly or even that [it] will sustain a loss. The frustration must be so severe that it is not fairly to be regarded as within the risks . . . assumed under the contract.” Restatement (Second) of Contracts § 265, comment a.
In this regard Boley’s case is distinguishable from Burner. In Bunner, the defendant’s attack on his sentence did not result in a remand for resentencing; his sentence was vacated. See 134 F.3d at 1002,1005. In contrast, Boley’s attack on his sentence will result in a resentencing, although to a sentence which is shorter than that which the State agreed to recommend. Thus, as noted by the Boley Court of Appeals: “[T]he State has not lost its entire bargained-for value.” 32 Kan. App. 2d at 1199.
Furthermore, in Kansas both parties to a plea agreement assume the risk the sentencing court will impose a sentence different than the sentence recommended as part of the plea agreement because sentence recommendations made pursuant to a plea bargain are not binding on the trial court. See Hill, 247 Kan. at 385. For example, this court has determined that the sentencing court can impose a sentence on a more serious criminal history score discovered after the guilty plea but prior to sentencing. Haskins, 262 Kan. at 731-32. In this case, Boley bore the risk that the sentencing court would decide that a downward durational departure was not appropriate. If this had happened and a guidelines sentence had been imposed, it might well have been Boley crying “unfair” and seeking to have an opportunity to persuade a jury he was not guilty. On the other hand, once the sentencing court agreed it was appropriate to impose a downward departure, the court had the discretion to select the length of sentence it deemed “proportionate to the severity of the crime of conviction and the offender’s criminal his tory” under K.S.A 21-4719(b). Nothing foreclosed the trial court from sentencing Boley at that time to the sentence he will receive upon remand. Now that this is a possible sentence result, the State is the one crying “unfair.” Although the probabilities of such an outcome have changed, the risk was present at the initial sentencing.
Additionally, the State bore the risk that Boley would appeal his sentence. The prosecutor could have protected against this risk by including a provision in the plea agreement requiring the defendant to waive his right to appeal or indicating that if the defendant successfully challenged his sentence, such action would be considered a breach of the agreement. In fact, the plea agreement did provide for other circumstances where the State would be released from its obligations under the agreement and allowed to reinstate charges, i.e., if the defendant failed to comply with all bond conditions, failed to appear for all court appearances, or violated federal, state or local laws pending disposition of the case.
Thus, the State does not meet the second element of the frustration of purpose doctrine because the frustration was not “so severe” that it is fairly regarded as within the risks assumed under the contract. Restatement (Second) of Contracts § 265, comment a.
The third and final element of the doctrine is that the “nonoccurrence of the frustrating event must have been a basic assumption on which the contract was made.” Restatement (Second) of Contracts § 265, comment a. The written plea agreement in this case was dated July 14, 2003. By that point in time, the issue of whether someone convicted of manufacture of methamphetamine could be sentenced to a severity level 1 drug felony had been percolating in the Court of Appeals. The Court of Appeals’ decision in State v. McAdam, 31 Kan. App. 2d 436, 66 P.3d 252 (2003), aff'd in part, rev’d in part 277 Kan. 136, 83 P.3d 161 (2004), was filed on April 11, 2003, and review was granted by this court on July 9, 2003. One year earlier, the Court of Appeals had ruled that because the statute prohibiting possession of drug paraphernalia, see K.S.A. 65-4152(a)(3), a severity level 4 drug felony, had identical elements to the crime of possession of ephedrine, see K.S.A. 65-7006(a), a severity level 1 drug felony, a defendant convicted of either crime may be sentenced only under the lesser penalty provision in State v. Frazier, 30 Kan. App. 2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002). At oral argument, the prosecutor admitted considering these cases when entering into the plea agreement. The risk that Boley could only be sentenced to the lesser penalty was foreseeable and, admittedly, foreseen.
Thus, contraiy to the Boley Court of Appeals’ holding, we conclude that the elements of the frustration of purpose doctrine were not met under the facts of this case.
The Boley Court of Appeals also noted that some jurisdictions apply the principles of mutual mistake to require rescission of the plea agreement, rather than giving the prosecution a choice. The court rejected this result, holding that there was no mutual mistake of law and that requiring rescission would be inequitable to the State because evidence might have been destroyed and witnesses lost. 32 Kan. App. 2d at 1199-1200.
The court also recognized that “where there is a mistake of law in a plea agreement, the risk of the mistake may fall to the State, which is presumed to be in a better position to know the applicable law.” 32 Kan. App. 2d at 1200 (citing United States v. Barron, 172 F.3d 1153 [9th Cir. 1999], and Coy v. Fields, 200 Ariz. 442, 27 P.3d 799 [Ariz. App. 2001]). However, the court concluded that under the circumstances, the State could not have known how this court would rule in McAdam; thus, it would have been inequitable to apply such a presumption in this case. Boley, 32 Kan. App. 2d at 1200.
As discussed above, under the circumstances of this case, when the plea agreement was signed, this court’s McAdam decision was foreseeable because the Court of Appeals had issued its decision and this court had granted review. More important, as noted in State v. Barnes, 278 Kan. 121, 127, 92 P.3d 578 (2004), McAdam did not announce a new rule of law but merely applied the principles enunciated in prior cases to existing statutes. Thus, it would not be inequitable to allow the risk of the mistake of law to fall to the State in this case.
Coy v. Fields, 200 Ariz. 442, and State v. Patience, 944 P.2d 381 (Utah App. 1997), are analogous to the instant case. In Coy, the Arizona Court of Appeals held the State was accountable for knowing state law when it negotiated and entered into a plea agreement pursuant to which the defendant was placed on a 15-year probationary term which exceeded the maximum allowed by law. 200 Ariz. at 444. The Coy court noted that where a plea agreement authorizes an illegally lenient sentence, courts generally either vacate the plea or give the defendant the option of withdrawing the plea or agreeing to a legal sentence in excess of the agreement’s provisions. However, the plea bargain in Coy authorized an illegally excessive sentence. 200 Ariz. at 444-45.
The Coy court rejected the State’s argument, based on Banner, that the probation provision was a material part of the plea agreement and that the nullification of that provision frustrated the purpose of the plea agreement. The court noted that the plea agreement provided only for the possibility of up to lifetime probation, but the agreement also contemplated that the judge could sentence the defendant within the legal range. Had the court done so, the State could not have complained. Coy, 200 Ariz. at 445.
The Coy court relied in part on Patience in holding that the State bears the risk when a sentencing provision in a plea agreement proves to be illegal and unenforceable. Coy, 200 Ariz. at 445-46. In Patience, the defendant agreed to plead guilty to reduced charges of three counts of attempted forgery, which were third-degree felonies. The Utah Legislature had reduced attempted forgery to a misdemeanor before the parties, who were unaware of the statutory change, negotiated and entered into their plea agreement. Once the change in severity level was discovered, the defendant appealed her sentence on the ground that it was illegal. The State sought to rescind the plea agreement on the ground of mutual mistake of material fact and asked that the original charges be reinstated.
The Utah court refused the State’s request to rescind the plea agreement, noting that the defendant had neither breached, withdrawn from, nor modified the agreement, conditions which generally would have permitted the State to withdraw. Patience, 944 P.2d at 386-88. Moreover, the court held that rescission was inappropriate even under a contract law analysis:
“[A] party may not rescind an agreement based on mutual mistake where that party bears the risk of mistake. See 17A Am. Jur. 2d Contracts § 215 (1991). In this case, we conclude the State bore the risk of the mistake as to the law in effect at the time the parties entered into the plea agreement. The State is generally in the better position to know the correct law . . . and the State must be deemed to know the law it is enforcing. Indeed, it is the State’s law, duly enacted by its legislative branch, that is in issue. The State must be charged with knowledge of its own legislative enactments and, in that sense, cannot be said to have been mistaken about the governing statute in effect when it agreed to the plea arrangement. [Citation omitted.] ....
“. . . Under these circumstances, we refuse to relieve the State of what it now considers a bad bargain where the plea agreement was the result of uninduced mistake as to the current provisions of Utah statute.
“We conclude that the State may not rescind the plea agreement in this case based on mutual mistake.” Patience, 944 P.2d at 387-88.
In Coy and Patience, die prosecutors were mistaken about the governing statutes currently in effect. Here, the issues related to the construction of statutes. However, that difference is not critical. In Patience, the court in a footnote distinguished several cases which had vacated plea agreements because of a later interpretation of a state statute which the parties could not reasonably have anticipated. 944 P.2d at 388 n.7; see Daniels v. Smith, 478 So. 2d 110, 110 (Fla. Dist. App. 1985); People v. Clark, 43 Mich. App. 476, 482-85, 204 N.W.2d 332 (1972). As previously discussed, this court’s decision in McAdam could have been reasonably anticipated because the published decision of the Boley Court of Appeals was before this court on petition for review when the plea agreement in this case was entered.
Coy and Patience are analogous and persuasive. We conclude that the State may not rescind the plea agreement in this case based upon a mistake of law.
Finally, we consider another case cited by the Boley Court of Appeals, Jolly v. State, 392 So. 2d 54 (Fla. Dist. App. 1981), even though it is not clear whether the court relied upon the case or merely discussed the case to explain why it was not following State v. Boswell, 30 Kan. App. 2d 9, 37 P.3d 40 (2001), and State v. Johnson, 30 Kan. App. 2d 1133, 55 P.3d 927 (2002).
In Boswell, the defendant pled guilty to two charges as part of a plea agreement wherein the State agreed to join in recommending a particular sentence. The trial court imposed the recommended sentence, part of which included an upward durational departure. Boswell appealed, and the Court of Appeals held the upward durational departure sentence was unconstitutional and illegal under State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), and State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001). Boswell, 30 Kan. App. 2d at 11. The court next considered whether Boswell’s guilty plea must also be vacated.
The court approvingly cited Jolly, a factually similar case where the defendant had entered into a plea agreement which recommended an illegally excessive sentence. As quoted by the Boswell court, Jolly held:
“ ‘[D]ue to the fact that a post-conviction motion may be raised and ruled upon years after imposition, the state may no longer have the witnesses and other evidence necessary to pursue a trial after a defendant successfully has his judgment and sentence vacated. Therefore, in a situation involving a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to be resentenced . . . .’ 392 So. 2d at 56.” Boswell, 30 Kan. App. 2d at 14.
The Boswell court followed Jolly and held:
“[W]hen a plea agreement includes an agreement to recommend to the court an illegal sentence, die sentencing court imposes the recommended but illegal sentence, and the illegal sentence impermissibly increases the defendant’s term of imprisonment, die State may either allow die defendant to withdraw his or her guilty plea or agree that the illegal portion of the sentence be vacated and the defendant be resentenced to the proper lesser term.” Boswell, 30 Kan. App. 2d at 14.
In Johnson, the defendant was charged with first-degree murder but pled guilty to an amended charge of voluntary manslaughter as part of a plea agreement wherein the State agreed to recommend an upward durational departure sentence. The trial court imposed the recommended sentence. On appeal, the State acknowledged that the upward durational departure sentence was illegal, but argued that under Boswell it should have the option of requiring a retrial on the amended complaint. The Johnson court rejected this argument. 30 Kan. App. 2d at 1134. Purporting to clarify Boswell, the Johnson court stated: “What the Boswell panel intended to say is that the State may acquiesce in the defendant’s request for a new trial or, in the alternative, may insist the defendant be resentenced to the proper lesser term.” 30 Kan. App. 2d at 1134. Because Johnson had not requested a new trial, the only option remaining was to remand the case for resentencing and imposition of a presumptive guidelines sentence. 30 Kan. App. 2d at 1134.
In other words, the upshot of both Boswell and Johnson is that when a defendant successfully challenges an illegally excessive sentence imposed as the result of a plea bargain, it is the defendant’s choice, not the State’s, whether to obviate the plea agreement or not.
The Boley Court of Appeals in this case disagreed with the Johnson court’s interpretation of Boswell because it directly contradicted the reasoning of Jolly. Boley, 32 Kan. App. 2d at 1195-96. According to the court, Jolly held that by attacking a sentence that was negotiated and served as the State’s inducement for the plea agreement, the defendant had attacked the agreement itself, thereby releasing the State from the agreement. Thus, under Jolly, the defendant’s only choice was whether to attack the sentence and release the State from the agreement or to remain under the original sentence. Boley, 32 Kan. App. 2d at 1196.
In Jolly, the defendant was sentenced to an illegally excessive sentence as the result of a “material mistake of law” by the trial judge, prosecutor, and defense counsel, all of whom mistakenly believed a mandatory minimum 3-year sentence applied. The defendant filed a motion to correct the sentence. The Jolly court agreed the trial judge erred in accepting a plea conditioned on the imposition of an improper sentence. However, the court ruled that a motion to correct the sentence was not the proper remedy under Florida law; rather, the defendant should have filed a motion to vacate the judgment and sentence, or, in other words, a motion to set aside the plea. Thus, the defendant only had the choice of remaining bound by the original plea agreement and sentence or moving to set aside the plea. If the defendant chose the latter, only then did the State have the choice of agreeing that both the conviction and sentence should be set aside or insisting that the defendant be resentenced to the proper term. 392 So. 2d at 56.
Thus, we agree with the Boley Court of Appeals’ conclusion that Jolly held the defendant’s only choice was whether to either withdraw the plea or abide by the original plea agreement and sentence.
Nonetheless, Jolly is distinguishable from this case in several respects. First, Jolly was not a direct appeal and the central issue was the appropriate remedy under Florida law. Furthermore, the plea negotiations in Jolly were “based on the premise that the defendant would receive a mandatory three-year sentence” so that Jolly’s postconviction motion would result in a “reduction of sentence in contravention of the plea bargain.” 392 So. 2d at 56. Under Florida law, if there “has been a firm agreement for a specified sentence and the judge determines to impose a greater sentence, the defendant has the [statutory] right to withdraw a plea.” Goins v. State, 672 So. 2d 30, 31 (Fla. 1996). Thus, Florida law differs materially from Kansas law under which the trial court is not bound by any sentencing recommendation of the parties. Finally, the Jolly court’s analysis was that there was a mistake of law. As discussed previously, there is no basis for concluding that a mistake of law allowed rescission of the plea agreement entered into in this case.
The State offers no other basis for providing it relief from the plea agreement it negotiated with Boley. We, therefore, reverse the Boley Court of Appeals, vacate the sentence of the district court, and remand this case to the district court for further proceedings consistent with this opinion.
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator s office against James D. Wenger, of Clay Center, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against the respondent alleges violations of Kansas Rules of Professional Conduct (KRPC) 1.1 (2004 Kan. Ct. R. Annot. 342) (competence); KRPC 1.2 (2004 Kan. Ct. R. Annot. 350) (scope of representation); KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); KRPC 1.16 (2004 Kan. Ct. R. Annot. 426) (declining or terminating representation); KRPC 3.2 (2004 Kan. Ct. R. Annot. 440) (expediting litigation); KRPC 8.1 (2004 Kan. Ct. R. Annot. 480) (bar admission and disciplinary matters); Supreme Court Rule 207 (2004 Kan. Ct. R. Annot. 261) and Supreme Court Rule 211 (2004 Kan. Ct. R. Annot. 275).
A disciplinary panel of the Kansas Board for the Discipline of Attorneys conducted a formal hearing, as required by Kansas Supreme Court Rule 211. The respondent failed to appear. The panel entered the following findings of fact, conclusions of law, and recommendation to this court:
“FINDINGS OF FACT
“The Hearing Panel finds the following facts, by clear and convincing evidence:
“1. James D. Wenger (hereinafter ‘the Respondent’) is an attorney at law . . . . The Respondent was admitted to the practice of law in the state of Kansas on December 19, 1996.”
“Complaint of Dennis L. Green
“2. In April, 2002, Dennis L. Green retained the Respondent to obtain a divorce from his common law wife, Lorraine J. Green, and paid a retainer of $1,100.00 to the Respondent. Mr. Green is an over-the-road truck driver. Additionally, Mr. Green is a member of tire Kansas National Guard. It was important to Mr. Green to have the divorce action filed and timely prosecuted as he expected to be activated and sent overseas.
“3. On May 30, 2002, Ms. Green filed a ‘protection from abuse’ case against Mr. Green. The Court scheduled a hearing on the petition for June 17, 2002. On June 7, 2002, the Respondent entered his appearance in behalf of Mr. Green in the ‘protection from abuse’ case. The Respondent continued the hearing scheduled for June 17, 2002. Thereafter, the Respondent negotiated a ‘consent agreement’ between the parties, resulting in a mutual restraining order between the parties.
“4. Mr. Green placed numerous telephone calls to the Respondent. The Respondent failed to return nearly all of the telephone calls.
“5. In October, 2002, the Respondent informed Mr. Green drat he filed the divorce case. However, die Respondent had not filed a divorce case in behalf of Mr. Green. (Mr. Green learned this fact by checking with the District Court of Clay County.)
“6. In January, 2003, Mr. Green again called the Respondent to discuss the status of the representation. The Respondent was not available at the time Mr. Green called. At diat time, Mr. Green talked with die Respondent’s wife. Mr. Green made it clear to die Respondent’s wife that he was not satisfied with the representation to date. Shortly thereafter, the Respondent wrote Mr. Green a brief letter. In the letter, the Respondent stated
‘My wife informed me of your recent phone call and your questions concerning your divorce. A hearing has been scheduled for February 25, 2003 at 10:30 a.m. at the Courthouse in Clay Center. I will call you tomorrow and verify this information with you. I believe that if you continue to have problems with my representation of you, I will withdraw and you can seek other counsel.’
The Respondent did not call Mr. Green die following day as promised.
“7. In preparation for his divorce hearing, Mr. Green took two days off of work. On February 25, 2003, at 8:49 a.m., die Respondent called Mr. Green. The Respondent stated that die judge was tied up in a jury trial. He asked whedier Mr. Green could travel to Riley County, Kansas, that day in the event die Respondent could get it heard in that county. Mr. Green told the Respondent that he was available. The Respondent told Mr. Green that he would call him back later diat day. The Respondent did not call back that day.
“8. The following week, Mr. Green called the Respondent. The Respondent informed Mr. Green diat he did not have any information, but that the Respondent would visit with Mr. Green about the status of his case on the following Monday.
“9. On March 3, 2003, (the following Monday) the Respondent called Mr. Green. However, when the Respondent called Mr. Green, he again told him that he did not have any information. The Respondent promised to call Mr. Green later that day whether or not the Respondent had any news for Mr. Green. The Respondent failed to call Mr. Green later that day.
‘TO. On March 5, 2003, Mr. Green called the Respondent. The Respondent answered the telephone. The Respondent told Mr. Green that he was having a hard time hearing Mr. Green, as Mr. Green had called from his mobile telephone. Mr. Green stopped at the nearest track stop and called the Respondent from a pay phone. The Respondent’s son answered the telephone. The Respondent’s son seemed to be unable to hear Mr. Green. Mr. Green called the Respondent four times from four different telephones at the truck stop. During the fourth telephone call, Mr. Green overheard the Respondent tell his son that he knew who was calling and to hang up the telephone.
“11. Thereafter, the Respondent directed his roommate, who held a power of attorney, to terminate the Respondent’s employment. On March 10, 2003, Mr. Green wrote to the Respondent— confirming that the Respondent had been fired and requesting that the Respondent refund the funds paid to him by Mr. Green.
“12. Mr. Green sent a copy of his March 10, 2003, letter to the Respondent to the Disciplinary Administrator along with his letter of complaint.
“13. On March 14, 2003, the Deputy Disciplinary Administrator wrote to the Respondent, informed him that Mr. Green filed a complaint, and asked the Respondent to provide a written response to the complaint within twenty days. The Respondent failed to respond to tire letter from the Deputy Disciplinary Administrator.
“14. The Deputy Disciplinary Administrator assigned the investigation of Mr. Green’s complaint to the Kansas Bar Association Ethics and Grievance Committee. John Gatz, Chairman of the KBA Ethics and Grievance Committee assigned Sharon W. Kellstrom to investigate the complaint filed by Mr. Green against the Respondent. On April 4, 2003, Ms. Kellstrom wrote to the Respondent, notified him of her appointment, and asked him to call her to discuss the complaint. The Respondent failed to contact Ms. Kellstrom.
“15. After terminating the Respondent’s services, Mr. Green hired Gary D. Denning to file the divorce case. On March 25, 2003, Mr. Denning filed a divorce case in behalf of Mr. Green. The Court executed a decree of divorce in Mr. Green’s divorce case on July 28, 2003.
“16. The Respondent refunded $900.00 of the $1,100.00, paid by Mr. Green.
“Complaint of Marcia Samples
“17. In 1999, Marcia Samples injured her knee while she was working. That same year, Ms. Samples retained the Respondent to assist her with a worker’s compensation claim. At the time, the Respondent was a partner in the law firm of Ryan, Condry & Wenger. The Respondent provided Ms. Samples with adequate representation from 1999 until September, 2001.
“18. In September, 2001, the Respondent wrote to opposing counsel Jeffrey Brewer, suggesting that Ms. Samples was ready to consider settlement. However, Ms. Samples was not ready to consider settlement and had not given the Respondent authorization to send the letter.
“19. Beginning in January, 2002, Ms. Samples began having trouble contacting the Respondent. Ms. Samples called the Respondent by telephone and sent the Respondent letters. The Respondent did not return Ms. Samples’ telephone calls nor did he respond to her letters. Occasionally, however, Ms. Samples was able to make contact with the Respondent.
“20. Ms. Samples sent the Respondent requests for reimbursement for mileage and expenses. The Respondent took no action on Ms. Samples’ requests for reimbursement for months at a time. Finally, in May, 2002, the Respondent sought and obtained a partial reimbursement for Ms. Samples for the period January, 2002, through April, 2002. However, the amount of the reimbursement was incorrect.
“21. In July, 2002, the Respondent wrote to Ms. Samples and informed her that he was leaving the law firm of Ryan, Condry & Wenger. Because the Respondent was so familiar with her claim, Ms. Samples agreed to continue to have the Respondent represent her. Ms. Samples signed a new contract.
“22. After leaving the law firm, the Respondent failed to notify Ms. Samples of his new business address. Ms. Samples was unable to locate the Respondent for a couple of months. Finally, in September, 2002, Ms. Samples looked in the telephone book and located the Respondent’s home telephone number and address. After some difficulty, Ms. Samples was able to reach the Respondent at his home.
“23. On numerous occasions, Ms. Samples asked the Respondent to seek referrals to two specialists.
“24. On January 7, 2003, Ms. Samples contacted the Respondent by telephone. She again asked the Respondent about the status of the requested referrals. The Respondent informed Ms. Samples that an appointment had been made for her at the University of Kansas Medical Center for January 29,2003. The Respondent informed Ms. Samples that the appointment had been approved by the insurance company. However, the appointment had not been approved by the insurance company.
“25. During that same conversation, Ms. Samples asked the Respondent about the referral to the other specialist, one in Wichita, Kansas. The Respondent told Ms. Samples that a tentative appointment had been made but he was waiting for confirmation from Mr. Brewer. The Respondent promised to call Ms. Samples during that week with more information. The Respondent failed to call Ms. Samples as promised.
' “26. At some point, the Respondent advised Ms. Samples that he had scheduled a preliminary hearing in her worker’s compensation case for March 11, 2003. However, he had not. Ms. Samples, however, believed that she had a preliminary hearing scheduled in her worker’s compensation case.
“27. Because the Respondent failed to call, on January 27, 2003, Ms. Samples called the specialist’s office in Wichita, Kansas. The doctor’s office had notheard from the Respondent nor did it have any record of a tentative appointment for Ms. Samples.
“28. On January 29, 2003, Ms. Samples filed a complaint with the Disciplinary Administrator’s office.
“29. On February 4, 2003, A1 Walczak, Deputy Disciplinary Administrator, wrote to the Respondent, informed him that Ms. Samples filed a complaint, and asked the Respondent to provide a written response to the complaint within fifteen days. The Respondent failed to respond to Mr. Walczak’s first letter.
“30. On March 6, 2004, Ms. Samples again wrote to the Respondent. She demanded that he formally withdraw from her case and forward her documents to a different attorney. The Respondent failed to comply with Ms. Samples’ demands.
“31. On March 14, 2003, Mr. Walczak sent the Respondent a second letter, directing him to provide a written response to the complaint within ten days. Mr. Walczak warned the Respondent that if a response was not forthcoming, the matter would be docketed for investigation. The Respondent failed to respond to Mr. Walczak’s second letter.
“32. Mr. Walczak also called Mike Ryan, the Respondent’s former law partner. Mr. Ryan then attempted to contact the Respondent on behalf of Mr. Walczak. Also, because Mr. Walczak became aware that Debra James was familiar with the Respondent and his difficulties, Mr. Walczak contacted] Ms. James. Ms. James contacted the Respondent and was able to retrieve Ms. Samples’ client file.
“33. Mr. Walczak docketed the case for investigation and assigned the investigation of Ms. Samples’ complaint to the Kansas Bar Association Ethics and Grievance Committee. Again, Mr. Gatz assigned Sharon W. Kellstrom to investigate the complaint filed by Ms. Samples against the Respondent. The letter that Ms. Kellstrom sent on April 4, 2003, referenced both complaints. As stated above, the Respondent failed to respond to Ms. Kellstrom’s letter.
“34. On February 20, 2003, Ms. Samples was able to contact the Respondent by telephone. During the telephone conversation, the Respondent expressed his displeasure that Ms. Samples had filed a disciplinary complaint. The Respondent told Ms. Samples that he no longer wished to represent her. Ms. Samples directed that the Respondent withdraw on or before February 28, 2003. The Respondent failed to withdraw from Ms. Samples’ case.
“35. Because she believed that she had a preliminary hearing scheduled for March 11, 2003, in her worker’s compensation case and because she believed that the Respondent would no longer be representing her, Ms. Samples called .the court.
[Here, a footnote from the hearing panel stated:] It was not until Ms. Samples received Judge Moore’s letter of March 4, 2003, that she learned that the Respondent had not scheduled a preliminary hearing for March 11, 2003.
Administrative Hearing Judge Bruce Moore answered the telephone. Ms. Samples explained her situation. Judge Moore made it clear to Ms. Samples that in order for the Respondent to withdraw he had to file a motion and the motion had to be approved by the court.
“36. Judge Moore scheduled a hearing in Ms. Samples’ case for April 9, 2003, and provided the Respondent with formal written notice of the hearing. On April 9, 2003, the Respondent failed to appear at the hearing. During the hearing, the Court, Ms. Samples, and Mr. Brewer attempted to determine the status of various payments to Ms. Samples. Also, during the hearing, Judge Moore removed the Respondent as counsel of record.
“37. Thereafter, Ms. Samples retained new counsel. Her worker’s compensation claim remains pending.
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 3.2, KRPC 8.1, Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b), as detailed below.
“2. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
....
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Accordingly, the Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
“3. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent Mr. Green and Ms. Samples when he failed to properly prepare and thoroughly represent them. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“4. KRPC 1.2(a) provides:
‘A lawyer shall abide by a client’s decisions concerning the lawful objectives of representation, subject to paragraphs (c), (d), and (e), and shall consult with the client as to the means which the lawyer shall choose to pursue. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive the jury trial and whether the client will testify.’
(Emphasis added.) The Respondent failed to consult with Ms. Samples prior to sending a letter requesting that the parties engage in settlement talks. As such, the Hearing Panel concludes that the Respondent violated KRPC 1.2(a).
“5. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. Green and Ms. Samples when he failed to make any progress in their cases for extended periods of time. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Green and Ms. Samples, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“6. KRPC 1.4(a) provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ In this case, the Respondent violated KRPC 1.4(a) when he failed to return telephone calls and respond to letters from Mr. Green and Ms. Samples. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“7. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
The Respondent failed to ‘take steps to the extent reasonably practicable to protect’ Ms. Samples when he failed to withdraw from her representation as requested. The Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d).
“8. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite Ms. Samples’ worker’s compensation case. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“9. Lawyer must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirement in this regard:
‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority. . . .’
KRPC 8.1(c):
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The Respondent knew that he was required to forward written responses to the initial complaints- — he had been instructed to do so in writing by Mr. Diehl, Mr. Walczak, and Ms. Kellstrom. Because the Respondent knowingly failed to provide written responses to the initial complaints filed by Mr. Green and Ms. Samples as requested by Mr. Diehl, Mr. Walczak, and Ms. Kellstrom, the Hearing Panel concludes that the Respondent knowingly violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“10. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation when he advised Mr. Green that his divorce case had been filed, when it had not; when he advised Mr. Green that a hearing had been set, when it had not; when he advised Ms. Sample that an appointment had been set with a specialist, when no contact had even been made by him with that specialist. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“11. Kan. Sup. Ct. R. 211(b) provides, in pertinent part:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
In this casé, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication.
“Mental State. The Respondent intentionally violated his duties.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual harm to Mr. Green and Ms. Samples. Mr. Green was unable to obtain a divorce for 12 months. Mr. Green missed work, and therefore compensation, unnecessarily. The Respondent told Ms. Samples that the doctor’s appointment with the specialist at the University of Kansas Medical Center was approved by the insurance company when it was not. As a result, Ms. Samples is financially responsible for that bill. The bill remains in collection because Ms. Samples is unable to pay it. Additionally, Ms. Samples was repeatedly financially injured by the Respondent when he failed to properly submit her requests for reimbursement. Ms. Samples’ worker’s compensation case did not progress for more than two years because of the Respondent’s inattention.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined. On May 15, 1991, the Iowa Supreme Court in definitely suspended the Respondent from the practice of law for having violated EC 1-5 and DR 102(a)(1), (3), (4), and (6). Additionally, the Court found that the Respondent provided false testimony and offered a false document at the Iowa disciplinary hearing. On June 16, 1994, the Iowa Supreme Court reinstated the Respondent to the active practice of law.
“Subsequently, on November 19,1998, the Iowa Supreme Court again suspended the Respondent’s license to practice of law. The Respondent failed to comply with tire annual continuing legal education requirements. The Respondent’s license to practice law in Iowa remains suspended.
“Finally, on October 6, 2003, the Kansas Supreme Court suspended the Respondent’s license to practice law for failing to pay the annual registration fee and for failing to pay the annual continuing legal education fee. The Respondent’s license to practice law in the state of Kansas remains suspended.
“A Pattern of Misconduct. Included in this case are two complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been discipline[d]. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.2, KRPC 1.3, KRPC 1.4, KRPC 1.16, [KRPC 3.2], KRPC 8.1, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211. As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent knew that he was required to provide written responses to the complaints filed by Mr. Green and Ms. Samples. The Respondent never filed such responses. The Hearing Panel, therefore, concludes that the Respondent obstructed the disciplinary proceeding.
“Vulnerability of Victim. Mr. Green was vulnerable to the Respondent’s misconduct because he is unsophisticated and unacquainted with the legal system. Ms. Samples was vulnerable to the Respondent’s misconduct because she placed all of her trust in the Respondent.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1996. Additionally, the Respondent was' licensed to practice law in the state of Iowa beginning in 1977. At the time the Respondent engaged in misconduct, the Respondent had been an active attorney for more than 20 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstance present:
“Timely Good Faith Effort to Make Restitution or to Rectify Consequences of Misconduct. The Respondent reimbursed Mr. Green $900 of the $1,100 paid by Mr. Green.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Disbarment is generally appropriate when:
(a) a lawyer abandons the practice and causes serious or potentially serious injury to a client; or
(b) a lawyer knowingly fails to perform services for a client and causes serious or potentially serious injury to a client; or
(c) a lawyer engages in a pattern of neglect with respect to client matters and causes serious or potentially serious injury to a client/ Standard 4.41.
‘Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system/ Standard 7.1.
‘Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of mis conduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’ Standard 8.1.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred from the practice of law in the state of Kansas.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
The respondent takes exception to the discipline imposed by the panel regarding the injuries sustained by both Green and Samples. All other parts of the hearing report are thus deemed admitted. See Supreme Court Rule 212(c) (2004 Kan. Ct. R. Annot. 285) (“Any part of the hearing report not specifically excepted to shall be deemed admitted.”).
“Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citation omitted.] This court has the duty in a disciplinary proceeding to examine the evidence and determine for itself the judgment to be entered. In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993). Although the panel’s report is advisory only, it should be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consists of sharply conflicting testimony. 252 Kan. at 406. Therefore, this court should examine the disputed findings of fact and determine whether they are supported by the evidence.” In re Kellogg, 269 Kan. 143, 153, 4 P.3d 594 (2000).
At the outset, the Disciplinary Administrator cites In re Lewis, 265 Kan. 766, 962 P.2d 534 (1998), in arguing that the respondent should be limited as to any argument he may have concerning the facts of this case because he did not appear at the hearing but then filed exceptions to the hearing report. In Lewis, the respondent did not appear at the hearing but later filed exceptions to the report and, on review, this court limited oral argument to whether this matter should be remanded to the panel for rehearing or, in the alternative, whether the recommended discipline should be imposed. Unlike the respondent’s case, Lewis had argued that he did not have notice of the hearing and had specifically asked the court to grant a rehearing. 265 Kan. at 777.
Rule 212(c) does not place any prohibitions on whether an attorney who does not appear at the hearing may file exceptions to the final hearing report. Thus, we consider the respondent’s exceptions. See also In re Kershner, 250 Kan. 383, 387, 827 P.2d 1189 (1992) (Rule 212 allowed attorney who did not appear at the hearing to file exceptions to the committee’s report).
The respondent argues no evidence was presented that Green was financially or otherwise injured as a result of the delay in the proceedings. He argues that although Green wanted the divorce completed by July 2002, Green understood that no work was to be commenced on the divorce until he paid the $1,000 retainer in October 2002. The respondent acknowledges a delay in finalizing the divorce proceedings, but he attributes this to the delay in payment and the 60-day waiting period before a divorce can become final. The respondent points out that he returned $900 of the retainer fee to Green and he had provided him satisfactory representation in another case.
The respondent’s argument is without merit and overlooks several important facts. First, Green testified that they had agreed that the petition would not be filed until the entire retainer fee was paid; however, when Green paid the retainer fee in full in October 2002, the respondent told Green that he had filed the divorce action when in fact he had not. The respondent did not file Green’s divorce petition and the 60-day waiting period was not an issue. Had the case been filed in October 2002, it likely would have been resolved much sooner than July 2003, when the proceedings were finalized under another attorney. Green advised the respondent in the first interview that it was important to obtain the divorce as soon as possible because he may be required to report for duty overseas. Without question, Green suffered harm in the delay in obtaining his divorce.
Second, although the respondent did eventually return $900 of the $1100 retainer fee, Green still suffered a $200 loss. The fact that the respondent had represented Green in a protection from abuse action concerning his common-law wife in June 2002 has no bearing on whether he suffered any injury in connection with the divorce proceedings. Finally, the respondent informed Green by letter that a divorce hearing had been scheduled for February 25, 2003, although he had never filed the divorce petition. In preparation for this hearing which never occurred, Green took off 2 days of work which “really cut into [his] pay.” Clear and convincing evidence supported the panel’s finding that Green suffered actual injury as a result of the respondent’s misconduct.
The respondent took exception to the panel’s finding that Samples had suffered financial injury through his misconduct in handling her workers compensation case. The respondent argues that Samples’ testimony that she had approximately $5,000 due in mileage reimbursement was suspect because by his calculations she would have had to travel 15,625 miles between May 2002 and February 2003. He argues Samples testified that she had six surgeries while being represented by the respondent and she received some reimbursement. Finally, he points to the fact that she had also filed a complaint against the insurance carrier’s attorney at the same time she filed the complaint against him.
Once again, the respondent’s arguments are without merit. Although the respondent attacks the $5,000 figure for travel/mileage reimbursement which the respondent had failed to adequately submit, the panel in this case did not adopt the $5,000 figure. Rather, the panel simply noted that she was repeatedly financially injured by the respondent’s failure to submit her requests for reimbursement. Samples testified that she had to borrow from friends and family in order to meet these expenses. It is important to note that the exact dollar amount is not at issue, as Samples’ new attorney was able to subsequently obtain most of these reimbursements, lending credence to her testimony. The important fact is that the respondent was not diligent in obtaining the milage reimbursements to which Samples was entitled, which repeatedly caused her financial hardship and delayed the time in which she was to receive the reimbursements.
Samples testified and the hearing panel found that the respondent provided Samples with adequate representation from 1999 until September 2001. However, the fact that the respondent was able to obtain some relief for Samples does not change the respondent’s subsequent actions and their financial consequences to Samples. Finally, the fact that she had filed another complaint concerning a different attorney had no effect on the financial injuries Samples suffered at the hands of the respondent.
Clear and convincing evidence established that the respondent failed to submit Samples’ mileage reimbursements causing a delay of nearly 2 years in obtaining full reimbursement, that her case did not progress for 2 years because of the respondent’s inattention and refusal to formally withdraw from the case, and that Samples incurred a $240 doctor bill which is now in collections after visiting a specialist the respondent had erroneously told her was approved by the insurance company. The respondent’s contention that Samples suffered no financial injury is without merit.
We conclude that the findings of the panel are supported by clear and convincing evidence. We adopt die above findings made by the panel. We also conclude that the findings made by the panel support its legal conclusions, and we adopt those conclusions.
The respondent contends that suspension is a more appropriate discipline in his case. In assessing the appropriate discipline, we are not bound by the recommendations made by the Disciplinaiy Administrator or the panel. In disciplinary proceedings, this court has a duty to examine all the evidence and to determine the judgment to be issued. In re Rumsey, 276 Kan. 65, 78, 71 P.3d 1150 (2003).
The respondent cites a plethora of cases in arguing that disbarment in this case would be inappropriate and suspension or reprimand would be more appropriate. However, as the discipline must be based on the specific facts and circumstances of each case, this court has found drat other disciplinary actions provide little guidance in evaluating the discipline to be imposed in the case at hand. Historically, we have applied the ABA Standards for Imposing Lawyers Sanctions as a guide for determining the appropriate discipline. In re Rumsey, 276 Kan. at 78. (citing In re Wagle, 275 Kan. 63, 75-76, 60 P.3d 920 [2003]).
We have considered the ABA standards for reprimand, suspension, and disbarment. We have also considered the panel’s findings concerning the nature of the duty violated, the attorney’s mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors. See ABA Standards for Imposing Lawyer Sanctions, § 3 (1991 ed.). In addition, we consider the statements of the Disciplinary Administrator and the respondent as well as the recommendation of the panel.
The record establishes and the respondent admits that he violated his duty to his clients to provide competent and diligent representation and to maintain adequate communication. The respondent did not accidentally fail to represent his clients or fail to respond to their numerous attempts to contact him nor did he accidentally engage in dishonest conduct by advising his clients that he had filed cases and set hearings and doctor’s appointments when he in fact had not. As the Disciplinary Administrator suggests, the only logical conclusion is that the respondent’s actions were willful and purposeful and not accidental. Thus, the panel properly concluded that the respondent intentionally violated his duties, and a sanction of reprimand would thus not be applicable in this case.
The respondent caused actual harm to both of his clients. Green’s divorce proceedings were delayed and he lost 2 days of compensation from work. Likewise, Samples incurred a $240 medical bill, was repeatedly financially injured when her medical reimbursements were delayed, and her case progressed slowly over 2 years based on the respondent’s misconduct. In addition, the respondent in both cases ignored all attempts to obtain his cooperation during the investigations and the panel’s hearing. While these factors alone most probably would not support disbarment, when the respondent’s intentional misconduct and failure to cooperate are considered with his disciplinary proceedings in Iowa, we arrive at a different conclusion.
The respondent argued before this court that his previous suspension in Iowa was remote in time and should not be considered by this court in its determination of the discipline to be imposed. Contrary to his contention, we do not find that the discipline imposed in Iowa remote in time. For extended periods of time in Iowa and in Kansas, the respondent has not practiced law. Moreover, the connections between the respondent’s acts in Iowa and his conduct in Kansas are striking similar. In Iowa, the respondent had failed to diligently pursue a matter entrusted to him and he did not cooperate with an investigation of a disciplinary complaint. Additionally, he had fabricated evidence and had given false testimony at the disciplinary hearing. See Committee on Professional Ethics & Conduct v. Wenger, 469 N.W.2d 678, 679 (Iowa 1991). In Kansas, the respondent lied to his clients and neglected matters entrusted to him. He failed to cooperate with the investigations of his disciplinary complaints, failed to file an answer to the complaints, and failed to participate in the panel hearing although he had been notified of the time and place of the hearing. In Iowa, the respondent’s misconduct resulted in a suspension.
Disbarment is generally appropriate when a lawyer has been suspended for the same or similar misconduct and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.
Under all the circumstances, including the respondent’s intentional misconduct in Kansas after having been suspended in Iowa for similar misconduct, we agree with the recommendation of the panel and the Disciplinaiy Administrator. We conclude that disbarment is the more appropriate discipline in the respondent’s case.
It Is Therefore Ordered that James D. Wenger be and he is hereby disbarred from the practice of law in the state of 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 James D. Wenger from the roll of attorneys licensed to practice law in the state of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
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The opinion of the court was delivered by
Larson, J.:
This case requires us to interpret the Credit Agreement Act (Act), K.S.A. 16-117 and K.S.A. 16-118, relating to liability upon oral credit agreements. Wesley Bittel and his two sons, Gene and David, sued Farm Credit Services of Central Kansas, P.C.A. (P.C.A.) for damages caused by the breach of an alleged oral agreement to renew a loan and for negligently representing that the loan would be renewed. P.C.A. refused to renew the Bittels’ operating loan in September 1993, after the Bittels had planted a feed crop for their cattle operation, and the lack of financing prevented them from purchasing cattle to feed that winter. P.C.A. was awarded summary judgment based upon the provisions of the Act. The Bittels appeal.
Factual statement
The Bittels jointly operate a family farm and cattle feedlot in Ellis County, Kansas. They first began financing their operations through P.C.A. in 1971. Each year, the Bittels executed a new “Note and Loan Agreement” with P.C.A. in which the conditions for continued financing were set.
P.C.A.’s loan officers in Stockton, Kansas, Jeff Rich and Jim Adams, had authority to approve loans. Ron Nutsch was a P.C.A. branch manager and controlled prior approval of loans above the delegated lending authority of regional offices.
The Bittels began improving and expanding their feedlot operation in 1991. In September 1992, they executed a new Note and Loan Agreement in the amount of $1,621,886 plus interest. The loan documents included a letter, separately signed by the Bittels and P.C.A., fisting 13 special conditions of the loan. The critical condition to this case required the Bittels to maintain a. chattel margin of no less than 20% as per the. field report values.
Prior to executing the 1992 agreements, P.C.A. informed the Bittels by telephone that it had decided to renew the 1991 Note and Loan Agreement, which had been due on August 1,1992. The Bittels had requested permission to purchase cattle, and Adams had verbally authorized the purchase, provided the cattle were hedged, after informing Gene that conditions would be placed on the loan approval. The cattle were then purchased prior to the execution of the 1992 agreement.
In Miarch 1993, the Bittels requested an increase in the principal amount of their loan to cover additional operating expenses. P.C.A. approved the request, although the chattel margin was slightly under the required 20% margin. A new Note and Loan Agreement was executed in March 1993 for the amount of $2,195,523.17 plus interest and due upon September 1, 1993. The Bittels agreed 12 of the 13 special conditions of the September 1992 agreement would apply to the new agreement, including the 20% margin requirement. At the time of execution, the Bittels understood that P.C.A. had no obligation to renew the Note and Loan Agreement after the September 1, 1993, due date.
Adams and Rich met with the Bittels on their farm on June 10, 1993, to discuss compliance with the chattel margin requirement and continued financing of the operation. The Bittels expressed dissatisfaction with P.C.A.’s method of valuing their cattle and calculating their chattel margin. The meeting also included a conversation regarding whether the Bittels would plant milo to be harvested for sale or feed for silage on their farmland. If milo was planted, the Bittels would have a cash crop to sell. If feed for silage was planted, the Bittels would have to feed the silage to cattle. The Bittels wanted assurance they would receive continued financing in the fall to purchase cattle for their feedlot if they planted feed to be ensiled.
In his deposition, Wesley Bittel testified that Gene asked the loan officers, “ “Will there be continued financing for our feeding operation?’ ” and one of the officers replied, “ *We see no problem as long as margins can be met.’ ” Gene testified in his deposition that he asked the loan officers whether they should plant milo or feed for silage. Rich responded, “ ‘We’re not in the business of making management decisions.’ ” Gene told Rich, “ ‘I need to make a management decision, are we going to have financing this fall?’ ” Rich said, “ °We see no problem. Go ahead.’ ” Gene testified that they then discussed the conditions and collateral which would be required for renewal, including a possible lien on Wesley’s unencumbered land or a $90,000 cash infusion. Gene also agreed with his interrogatory answer which indicated that Rich had told him, “ We see no problem with the feedlot except we might need a cash infusion or more collateral.’ ” The Bittels began planting feed for silage the next day.
Rich met with Nutsch in Wichita to discuss the Bittels’ operation and the June 10 meeting with the Bittels. On June 24,1993, Nutsch sent a memo to Rich and Adams expressing concerns about the operation and indicating that the planting decision was up to the Bittels, but that due to the low chattel margin and 2 consecutive years of losses, P.C.A. could not make a blanket statement that it was a lender who could stick with the Bittels.
Two days later, Adams sent a letter to the Bittels advising them of P.C.A.’s concern with their low chattel margin and the likely need for a cash infusion or additional collateral. The letter stated that in regards to continued financing, significant progress needed to be made and that drafting privileges under the current agreement were dependent upon continued compliance with its conditions.
Adams again met with the Bittels on August 10,1993, to conduct a field inspection. Afterwards, Adams calculated the chattel margin at 16% and called Wesley to inform him their drafting privileges were about to be suspended. Adams sent a letter on August 13, 1993, advising the Bittels that their drafting privileges had been suspended, stating that their loan renewal application had been denied, and enclosing an adverse credit action notice.
The Bittels were unable to purchase cattle to feed that year, although the feed for silage harvested that fall was eventually fed to cattle during the following winter. The Bittels continued to have discussions through December 1993 with P.C.A. regarding renewed financing, but P.C.A. rejected Wesleys proposed plan. P.C.A.’s restructure proposal was subsequently rejected by the Bittels as “completely unacceptable.” The Bittels then found another lender and paid off their indebtedness to P.C.A.
The Bittels filed suit against P.C.A., and their second amended petition alleged P.C.A. breached an oral contract to renew their financing and that P.C.A. representatives negligently misrepresented that their loan would be renewed. In its defense, P.C.A. relied upon K.S.A. 16-118, which bars enforcement of an oral credit agreement. P.C.A. also asserted the Bittels did not reasonably rely upon P.C.A.’s alleged promise to renew the loan and its loan officers had not made any negligent misrepresentations.
The trial court granted P.C.A.’s motion for summary judgment. The court held K.S.A. 16-118 barred the Bittels’ claim that an oral contract to renew the loan was created on June 10,1993. The court also found the action was essentially a contract action and the Bittels could not avoid dismissal by alleging the commission of a tort. In addition, the court ruled that statements by Adams and Rich on June 10, 1993, were not an unequivocal promise to renew a loan; thus, the Bittels had no right to rely upon such statements.
The Bittels appeal pursuant to K.S.A. 60-2102(a)(4). The case was transferred to us under K.S.A. 20-3018(c).
Oral agreement
The Bittels first argue that the March 1993 Note and Loan Agreement is only a promissory note and, as such, it could be modified by oral agreement in June 1993. The trial court ruled:
“Assuming for the sake of argument that the 3/10/93 instrument was a promissory note, the alleged agreement of June 10, 1993 was not. It was an agreement to extend credit in the future or to delay repayment of an existing indebtedness. . . .
“Also, the court finds that the additional terms and conditions of the Note and Loan Agreement of 3/10/93 make it something other than a promissoiy note. Both creditor and debtor were required to sign this instrument to make it effective. A promissoiy note must be signed only by the debtor.”
The Bittels’ argument is controlled by the provisions of the Act. Our fundamental rule of statutory construction is that the intent of the legislature, where it can be ascertained, governs the construction of a statute. See City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). "The legislature is presumed, to have expressed its intent through the language of the statutory scheme it enacted. . . . See Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 633, 802 P.2d 1231 (1990).” Marais des Cygnes Valley Teachers’ Ass’n v. U.S.D. No. 456, 264 Kan. 247, 250, 954 P.2d 1096 (1998). Appellate courts will not speculate as to the legislative intent of a plain and unambiguous statute. State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997).
K.S.A. 16-118 provides:
“(a) A debtor or a creditor may not maintain an action on a credit agreement unless the agreement is in writing and is signed by the creditor and the debtor.
“(b) All credit agreements shall contain a clear, conspicuous and printed notice to the debtor that states that the written credit agreement is a final expression of the credit agreement between the creditor and debtor and such written credit agreement may not be contradicted by evidence of any prior oral credit agreement or of a contemporaneous oral credit agreement between the creditor and debtor. A written credit agreement shall contain a sufficient space for the placement of nonstandard terms, including the reduction to writing of a previous oral credit agreement and an affirmation, signed or initialed by the debtor and the creditor, that no unwritten oral credit agreement between the parties exists.”
“Credit agreement” is defined in K.S.A. 16-117:
“(a) ‘Credit agreement’ means an agreement by a financial institution to lend or delay repayment of money, goods or things in action, to otherwise extend credit or to make any other financial accommodation. For purposes of this act the term ‘credit agreement’ does not include the following agreements: Promissory notes, real estate mortgages, security agreements, guaranty agreements, letters of credit, agreements in connection with student loans insured or guaranteed pursuant to the federal higher education act of 1965 and acts amendatory thereof and supplementary thereto, and agreements in connection with ‘lender credit cards’ as defined in the uniform consumer credit code.”
K.S.A. 16-117 and K.S.A. 16-118 were enacted in 1988 and amended the following year. The amendment added the second sentence of K.S.A. 16-117(a), clarifying that promissory notes, guaranty agreements, letters of credit, student loan agreements, and lender credit cards do not fall within the purview of the statute. K.S.A. 16-119 was also newly enacted to state: “This act is a declaration of the meaning of chapter 55 of the laws of 1988, as originally adopted.” L. 1989, ch. 70, § § 1, 2.
The Act has only been addressed thus far in one appellate case, Wells v. State Bank of Kingman, 24 Kan. App. 2d 394, 395, 945 P.2d 418 (1997), where the Court of Appeals noted:
“The statutes were enacted in 1988 in an apparent attempt to limit ‘lender liability’ claims based on alleged oral agreements between borrowers and financial institutions. K.S.A. 16-118(a) essentially operates as a statute of frauds. See Calvert, Kansas Legislation Governing Credit Agreements of Financial Institutions, 59 J.K.B.A. 19, 21 (FebTMarch 1990).
“While our appellate courts have yet to interpret these statutes, this application seems straightforward enough to us. And in the present case, the parties do not dispute that K.S.A. 16-118(a) applies.”
The Act was also discussed in Rossi, Lender Liability in Kansas: A Paradigm of Competing Tort and Contract Theories, 29 Wash-bum L. J. 495, 513-16 (1990). The author stated:
“[T]he Kansas legislature recently passed, and quickly amended, a statute providing that no action may be maintained on a credit agreement unless it is in writing and signed by both the debtor and creditor, in effect subjecting credit agreements to a rule analogous to the statute of frauds.. . .
“The initial law was troublesome in that the definition of credit agreement was broad enough to include such agreements as promissoiy notes, mortgages, security agreements and other agreements which are usually signed only by the debtor. This problem raised concerns about the enforceability of such agreements and merited the prompt issuance of an Attorney General Opinion attempting to clarify the matter. The law has been amended to respond to this problem by excluding promissory notes, mortgages, security agreements and other specified agreements from the definition of credit agreement.. . .
“[T]he operative provision of the statute is section 16-118(a) which provides that an action may not be maintained on a credit agreement unless it is in writing and signed by the debtor and creditor. As noted, this is a statute of frauds applicable to the defined class of credit agreements. Since the statutory definition of credit agreement is broad enough to include amendments, modifications and waivers relating to a credit agreement, a proper reading of section 16-118(a) as a statute of frauds should prohibit actions on all alleged oral amendments, modifications and waivers relating to a written credit agreement.”
The legislative history of the Act makes clear the intent of the legislature to bar actions on oral credit agreements such as the one in the present case. The Minutes of the House Committee on Commercial and Financial Institutions, March 17, 1988, stated:
“S.B. 535 would require that to be judiciously enforceable by a debtor the credit agreement must be in writing and signed by the party to be charged. The Bill would create a statute of frauds for this type of agreement in that the terms of the written agreement may not be varied by evidence of prior agreements, either written or oral or by contemporaneous oral agreements.”
The Supplemental Note on S.B. 535 reads: “The intent of the bill is to insure there is written evidence of credit agreements and to prevent lawsuits based on disputed oral agreements to lend money or the disputed terms for lending the money.”
Furthermore, there is evidence in the legislative record that the 1989 amendment was intended to make clear that lenders would not be required to sign documents, such as promissory notes, which traditionally only required the signature of the debtor to make such agreements enforceable. The Minutes of the Senate Committee on Financial Institutions and Insurance, January 26, 1989, reported:
“Jim Maag, Kansas Bankers Association, . . . stated that amendments to SB 535, passed during the 1988 legislative session, were necessary because of the increasing number of lawsuits based on oral agreements. ... SB 46 provides that the debtor or creditor cannot maintain action on a credit agreement unless two conditions are present, (1) it must be in writing and (2) it must be signed by both parties. Exceptions to this would be student loans and lender credit card agreements as it is almost impossible to meet the requirements of credit agreements in these two types of transactions.”
The Kansas Bankers Association, in a letter to the Senate Committee on Financial Institutions and Insurance, January 26, 1989, stated that the Act, prior to the 1989 amendment,
“has raised the question among bank legal counsels as to which documents used by the bank are considered ‘credit agreements’ and which ones are not. ...
“[I]t is important that banks and S&Ls be assured as soon as possible which documents must be changed and which ones may be retained to comply with the provisions of the act.”
A promissory note whereby a borrower promises in writing to pay an indebtedness cannot be subsequently amended to require the creditor to assume additional duties under the note. Such an amendment would change the nature of a note, particularly as notes only require the signature of the debtor to be enforceable. Therefore, an oral promise on the part of a lender to extend credit in the future may not be considered a modification of a debtor’s promissory note and falls within the clear definition of “credit agreement” in K.S.A. 16-117(a). As such, K.S.A. 16-118(a) plainly requires such an agreement to be in writing and signed by both the creditor and debtor.
The trial court correctly determined that even if the March 1993 Note and Loan Agreement were considered only a promissory note, this would have no bearing upon the alleged June 1993 agreement to renew the Bittels’ financing in September. We need not consider whether the March 1993 Note and Loan Agreement was only a promissory note because the June 1993 agreement could not be a mere modification of such a note. The Bittels’ assertions to the contrary have no merit.
The legislature has acted to bar actions on oral credit agreements, which is exactly what the Bittels are seeking to enforce. The legislature’s intent is clear. The Bittels’ action to enforce the alleged oral agreement of June 10, 1993, may not be maintained. The trial court correctly granted summary judgment on this issue.
Tort theories of recovery
The trial court ruled the Bittels could not seek to recover under both theories of contract and tort because the essence of their action sounded in contract. The court used this determination to rule out the Bittels’ claims for promissory estoppel and negligent misrepresentation. P.C.A. asserts that the Act clearly was intended to rule out actions based upon such theories.
As will later be discussed, Kansas law permits the doctrine of promissory estoppel to overcome a statute of frauds defense under certain factual situations. P.C.A.’s argument that the Act was intended to bar such actions is not consistent with Kansas law to the contrary and is refuted by the legislative record. In a letter included in the legislative record, an attorney suggested that language should be inserted into the proposed Act to legislatively overrule the doctrines of part performance and estoppel. Minutes of House Committee on Commercial and Financial Institutions, March 17,1988. Despite having its attention drawn to this matter, the legislature never incorporated language in the Act to eliminate recovery under a theory of promissory estoppel. Thus, we find there was no intent to legislatively overrule the doctrine long established by our case law.
We next address P.C.A.’s assertion that the Bittels may not maintain a negligence action in a breach of contract case. The trial court relied on Beeson v. Erickson, 22 Kan. App. 2d 452, 917 P.2d 901 (1996), in reaching its conclusion that “the law of this state will not allow a tort action to be maintained in what is essentially a contract action.” The court held: “It is clear from the history of this case that the tort action is being pursued in an effort to avoid the dismissal which would result from maintenance of a contract action under K.S.A. 16-118.”
It is not necessary for our decision to analyze the differences between cases with competing tort and contract theories, but see Rossi, 29 Washburn L. J. 495, previously cited herein.
In our recent case of Gerhardt v. Harris, 261 Kan. 1007, 1018, 934 P.2d 976 (1997), we reversed a grant of summary judgment in favor of the defendant on theories of both fraud and breach of oral contract based upon essentially the same conduct. This case demonstrates that when the same conduct could satisfy the elements of both a breach of contract or of an independent tort, unless the conduct is permitted by the express provisions of a contract, a plaintiff may pursue both remedies.
This is true in situations such as the present case, where a plaintiff is unable to recover under a breach of contract theory because an enforceable contract was never made. In such situations, a theory of fraud or promissory estoppel may be the plaintiff’s only possible remedy, and Kansas has traditionally recognized and permitted such causes of action. The trial court’s reliance upon Beeson, 22 Kan. App. 2d 452, to categorically reject the Bittels’ tort claims from what it considered a contract action, including claims of promissory estoppel and negligent misrepresentation, was misplaced.
Promissory estoppel
The Bittels assert that even if K.S.A. 16-118 would ordinarily operate to bar their action on the alleged oral agreement to renew their financing, the doctrine of promissoiy estoppel should allow them to recover due to their reliance upon P.C.A.’s promise. The Bittels claim they incurred damages by deciding to plant feed for silage rather than milo after relying upon statements made by P.C.A. loan officers that there would be no problem with renewing the operating loan.
P.C.A. argues that the Bittels cannot establish they rightfully or reasonably relied upon the statements of its loan officers such that recovery under a theory of promissory estoppel should be permitted. P.C.A. also points out that the essential terms and conditions of any such agreement were not established on June 10, 1993.
In Decatur Cooperative Association v. Urban, 219 Kan. 171, Syl. ¶¶ 5, 6, 7, 547 P.2d 323 (1976), in discussing thé application of promissory estoppel, we said:
“The doctrine of promissory estoppel may render enforceable any promise upon which the promisor intended, or should have known, that the promisee would act to his detriment, and which is indeed acted upon in such a manner by the promisee, where application of the statute of frauds to that promise would thus work a fraud or gross injustice upon the promisee.”
“Before the doctrine of promissoiy estoppel can be invoked in a case involving the statute of frauds the promisee must first show by competent evidence that a valid and otherwise enforceable contract was entered into by the parties.”
“In order for the doctrine of promissory estoppel to be invoked the evidence must show that the promise was made under circumstances where the promisor intended and reasonably expected that the promise would be relied upon by the promisee and further that the promisee acted reasonably in relying upon the promise. Furthermore promissory estoppel should be applied only if a refusal to enforce it would be virtually to sanction the perpetration of fraud or would result in other injustice.”
The Court of Appeals in Wells discussed the application of promissory estoppel to a claim based on an oral credit agreement otherwise barred by K.S.A. 16-118. The court stated:
“Wells contends his partial performance of the agreement between him and FmHA removes the case from the statute’s operation.
“Before partial performance can be invoked to escape the operation of the statute of frauds, the contract must be fully made in every respect, except for an actual writing. See Owasso Dev. Co. v. Associated Wholesale Grocers, Inc., 19 Kan. App. 2d 549, 873 P.2d 212, rev. denied, 255 Kan. 1003 (1994). Here, the trial court found the terms and conditions of any contract between Wells and the Bank were never fixed. Further, the trial court found that Wells did not come into court with clean hands, in that he violated his plan with FmHA in several respects.
‘We note the Kansas Bankers Association’s argument in its amicus brief is technically correct that the partial performance doctrine applies only to contracts involving land. But Wells’ theory may as easily be labeled one of promissory estoppel, which is not limited to contracts involving land. See Decatur Cooperative Association v. Urban, 219 Kan. 171, 547 P.2d 323 (1976).” 24 Kan. App. 2d at 395-96.
In First Bank of WaKeeney v. Moden, 235 Kan. 260, 264-65, 681 P.2d 11 (1984), we declared:
“The mere fact that a bank has renewed loans in the past does not require it to do so in the future.
“A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show that it rightly relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts, Iola State Bank v. Biggs, 233 Kan. 450, Syl. ¶ 4, 662 P.2d 563 (1983). There is no evidence in this case that the Bank, by its actions, induced the Modens to reasonably believe that they would get an extension of their loan, regardless of their ability to pay their obligations, if they complied with the farm plan and Loan Agreement. As the trial court observed, ‘Promissory estoppel involves both misrepresentation and detrimental reliance.’ Neither is present here.”
The trial court did not address P.C.A.’s argument that the Bittels could not have reasonably relied upon the alleged promises of its loan officers but did rule: “[T]he plaintiffs make the assumption in their argument that the existing agreement would be renewed or extended under existing terms and conditions, an assumption not warranted in this case.”
The Bittels present a detailed history of their debtor/creditor relationship with P.C.A. in an attempt to establish they had frequently obtained oral commitments for credit and oral authorization to modify their loan budget. However, these examples all generally fall within the category of a change in the application purpose of funds previously authorized to be loaned. They are not oral authorizations to exceed the loan budget or for any type of guaranteed renewal.
In order to recover on a theory of promissory estoppel, the Bittels must establish that they entered into an otherwise valid and enforceable contract with P.C.A. in June 1993 to renew their financing. They also must prove that P.C.A. should have known that the Bittels would rely upon this agreement and that the Bittels did reasonably rely upon P.C.A.’s promise.
The trial court clearly determined that no valid or enforceable contract was entered into in June 1993 because the terms and conditions of the contract had not been established. The Bittels had argued that the same terms that had been included in their prior Note and Loan Agreement would have been incorporated into the new loan agreement. The trial court correctly pointed out that this is an unwarranted assumption.
Even if the interest rate and amount of the loan could be assumed from prior transactions, the conditions of the financing could not, as evidenced by the very negotiations pertaining to the necessity of granting additional collateral or making a cash infusion that occurred at the time of and subsequent to the alleged promise was made on June 10, 1993. The parties had clearly not agreed upon the additional conditions for loan renewal when the statements were madé by P.C.A.’s loan officers that they saw no problem with renewing the Bittels’ financing so long as the chattel margins continued to be met.
In addition, the Bittels’ reliance upon the loan officers’ statements is unreasonable because both Gene’s and Wesley’s account of the June 10, 1993, conversation recognized that continued financing was dependent upon complying with the loan conditions, including the chattel margin requirement. It was unreasonable to assume that financing would be available regardless of whether these conditions were met.
Furthermore, a refusal to enforce the alleged June 10, 1993, agreement under these facts does not amount to a sanctioning of fraud or other injustice. The Bittels were aware of the chattel margin requirement for continued financing, apparently had it within their power to fulfill this requirement, and did not do so. Although the circumstances surrounding the nonrenewal of the Bittels’ fi nancing were certainly unfortunate, they do not ring of fraud or deceit.
The Bittels are not entitled to relief under a theory of promissory
Negligent misrepresentation
We first adopted the tort of negligent misrepresentation as defined in Restatement (Second) of Torts § 552 (1976) in Mahler v. Keenan Real Estate, Inc., 255 Kan. 593, 605, 876 P.2d 609 (1994). In Gerhardt v. Harris, 261 Kan. 1007, 1018, 934 P.2d 976 (1997), we discussed the applicability of this tort and stated: “The comments to § 552 show that negligent misrepresentation applies to suppliers of commercial information in favor of users of such information in their commercial transactions.” We later added: “Generally, § 552 includes negligent supply of commercial information to others for guidance in their business transactions.” 261 Kan. at 1019.
We found Gerhardt could not recover for her former attorney s alleged negligent misrepresentation that he would abide by the decision of an arbitration committee. We noted:
“The danger in allowing Gerhardt to proceed with her negligent misrepresentation claim is that any breach of contract action could be treated as also including a negligent misrepresentation claim. Endorsing Gerhardt’s analysis would encourage an overly expansive reading of § 552.” 261 Kan. at 1021.
In Gerhardt, we quoted from City of Warrensburg, Mo. v. RCA Corp., 571 F. Supp. 743 (W.D. Mo. 1983), which distinguished negligent misrepresentation from a misrepresentation to perform an agreement. The RCA court set forth the comment to § 530, which said in part: “If the agreement is not enforceable as a contract, as when it is without consideration, the recipient still has, as his only remedy, the action in deceit under the rule stated in § 525 [Liability for Fraudulent Misrepresentation]/ ” 571 F. Supp. at 753. The RCA court went on to state:
“Unlike § 530, § 552 does not, by its terms, apply to misrepresentation of intention to perform an agreement. Nor do the illustrations to § 552 apply to other than typical cases of misrepresentation of factual, commercial information. The Comments to § 530 specifically state that where there is no viable action on the contract, the exclusive remedy for misrepresentation of intention to perform an agreement lies in the action for deceit. ... A merely negligent misrepresentation of a maker’s own intention is not actionable under § 530 for the reason that in the absence of any fraudulent intent . . . there is no misrepresentation of any existing fact on which any action for negligent misrepresentation could be based.” 571 F. Supp. at 753.
The trial court in the present case held that even if it were to permit a claim for negligent misrepresentation, such a misrepresentation must be an affirmative statement of fact upon which the Bittels had a right to rely. The court found that the representation alleged by the Bittels was one of opinion and not of fact and was far from an unequivocal promise to renew the credit agreement.
The Bittels assert that in making this determination, the trial court failed to properly apply the summary judgment standard of viewing the facts in the fight most favorable to them. However, the question of whether the alleged misrepresentations were of ones of present fact or ones of opinion or future intent is clearly a question of law.
Here, the statements as to whether P.C.A. would continue financing the Bittels’ farm operation pertained to an intent to perform in the future. The loan officers’ statements were either true or deliberately false. If the latter, the misrepresentation would have been intentional, not negligent. Regardless, and most importantly, these statements were clearly conditional upon future compliance with loan requirements, which could not be ascertained at the time the statements were made.
The statements made by the loan officers upon which the Bittels claim to have relied are not the type of misrepresentation contemplated by § 552 of the Restatement and are not recoverable under a negligent misrepresentation theory. The trial court correctly determined that the Bittels could not sustain an action for negligent misrepresentation.
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|
The opinion of the court was delivered by
Davis, J.:
Farm Bureau Mutual Insurance Company, Inc., (Farm Bureau) filed a declaratory judgment action against its insureds, Glenn Kurtenbach and Barbara Kurtenbach, seeking a determination that it had no duty to defend or to pay any judgment under its Farm Master policy. The Kurtenbachs had been sued for damages based upon a collision between a motorcycle operated by their son Scott and a vehicle driven by Lyle Nelson. We granted Farm Bureau’s petition for review of the Court of Appeals’ decision affirming the decision of the trial court that coverage existed and also affirming the trial court’s award of attorney fees and expenses. We affirm the judgment of the Court of Appeals as modified.
We must decide two questions: (1) whether the Court of Appeals’ decision affirming the trial court’s judgment that coverage existed under the Farm Master policy issued to the Kurtenbachs is correct and (2) whether Farm Bureau is responsible for attorney fees and expenses incurred by its insured in the successful defense of Farm Bureau’s declaratory judgment action seeking a determination that no duty to defend or pay existed under the policy.
The material facts in this case are undisputed. Farm Bureau issued a Farm Master insurance policy to the defendants Glenn and Barbara Kurtenbach. On July 20, 1992, a motor vehicle accident occurred involving a motorcycle owned by the Kurtenbachs, and driven by their son Scott, and an automobile driven by defendant Lyle Nelson. Christopher Speltz, who was not a party to the underlying liability suit, was a passenger on the motorcycle driven by Scott.
The accident occurred as Scott attempted to drive the motorcycle across U.S. Highway 56. The Kurtenbachs owned and rented land on both sides of Highway 56 and, according to Glenn Kurtenbach, it was a necessary part of farming operations to drive the motorcycle across the highway to access that part of his farm on the other side. Scott was using the motorcycle in farming operations at the time of the accident.
The motorcycle was a 1978 Yamaha DT 175 dirt and trail bike. It had been purchased for farm use and had never been licensed or registered since its purchase in 1979. In his deposition, Glenn Kurtenbach stated that he used the motorcycle primarily for farm purposes although he would sometimes ride the motorcycle on his property to “have fun with it” or to go fishing. Scott had ridden the motorcycle on the township road west of his parents’ house approximately 10 to 15 times. The motorcycle was equipped with headlights, a speedometer, a brake light, turn indicators, one mirror, and a horn, although the horn did not work. It was also equipped with a muffler, front and back fenders, and a tachometer.
The dispute in this case centers upon the incidental coverage provisions of the Farm Master policy. The Farm Master policy is a comprehensive general liability policy insuring the Kurtenbach’s farm, including their dwelling and 805 acres. The policy expressly excludes from coverage:
“1. Bodily injury or property damage arising out of the ownership, maintenance or use of:
b. motorized vehicles or watercraft owned or operated by or rented to an insured person, except as provided under Incidental Liability and Medical Coverages.”
However, the policy provides coverage under “INCIDENTAL MOTORIZED VEHICLE COVERAGE” in the following circumstances:
“2. INCIDENTAL MOTORIZED VEHICLE COVERAGE. We pay for bodily injury or property damage which:
a. occurs on the insured premises and results from the ownership, maintenance, use, loading or unloading of:
(1) Motorized Vehicles not subject to motor vehicle registration because of their type or use; or
(2) Recreational Motor Vehicles;
b. occurs anywhere and results from:
(1) golf carts being used for golfing purposes;
(2) utility, boat, camping trailers except when the trailer is carried on, towed by or attached to a motor vehicle or recreational motor vehicle owned by an insured;
c. motorized vehicles designed exclusively for use off public roads and used principally to service the insured premises.”
The question of coverage and the question involving the award of attorney fees are questions of law in this case. Our review is unlimited, and we are not bound by the prior determinations of the trial court and the Court of Appeals. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Coverage
The trial court and the majority and dissenting opinions of the Court of Appeals all concluded that the accident occurred “on the insured premises” under Incidental Motorized Vehicle Coverage Provision 2.a. However, the trial court and the Court of Appeals arrived at different conclusions regarding coverage questions under the remaining provisions of the Incidental Motorized Vehicle Coverage in the policy. The trial court based its coverage determination upon its conclusion that the incidental coverage provisions of the policy were ambiguous. Provision 2.c. provides that Farm Bureau “pay[s] for bodily injury or property damage which: . . . motorized vehicles designed exclusively for use off public roads and used principally to service the insured premises.” While it is true that language such as “results from” is missing from 2.c., the lack of such language does not automatically create an ambiguity calling for a determination of coverage.
The Court of Appeals did not reach the question of ambiguity under the provisions of 2.c. but decided the question under 2.a.(l) which provides:
“2. INCIDENTAL MOTORIZED VEHICLE COVERAGE. We pay for
bodily injury or property damage which:
a. occurs on the insured premises and results from the ownership, maintenance, use, loading or unloading of:
(1) Motorized Vehicles not subject to motor vehicle registration because of their type or use.”
Like the Court of Appeals, we do not reach the question of the ambiguity of 2.c. relied upon by the trial court, but instead base our decision upon 2.a. Thus, in our review, two questions are involved in determining if 2.a.(l) provides coverage: (1) whether the bodily injury or property damage occurred on the insured premises and (2) whether it resulted from the ownership of a motorized vehicle not subject to motor vehicle registration because of its type or use.
(1) Did the accident occur on the insured premises?
The accident occurred on Highway 56, property not owned by the Kurtenbachs. Farm Bureau asked that we construe its policy focusing upon the definition of “insured premises” and conclude as a matter of law that this accident did not occur on the insured premises. At the time the policy was issued, the insured owned property and farmed property split by Highway 56. As a result, it is necessary to examine the policy language to determine whether the accident occurred on the insured premises.
While not bound by the trial court’s determination of this issue or the determination of either majority or dissenting opinions of the Court of Appeals on this issue, we note that all concluded under the given facts that even though the accident occurred on Highway 56, it occurred “on the insured premises” within the provisions of the policy.
In discussing the trial court’s finding that the accident occurred on the insured premises, the majority opinion of the Court of Appeals stated:
“The policy defines ‘insured premises’ in part as: ‘the farming premises which you own, rent or operate described in the declarations.' The policy defines ‘farming’ as ‘the maintenance or use of premises for the production of crops or the raising or care of livestock, including all necessary operations.’ (Emphasis added.) The court accepted [Kurtenbachs’] argument that driving the motorcycle across Highway 56 was a necessary part of farming operations and, therefore, occurred on the ‘farming premises.’ Farm Bureau challenges this finding.
“Farm Bureau first points out that the Kurtenbachs do not own Highway 56. The ownership of Highway 56 is not determinative of whether the highway could be part of the Kurtenbachs’ ‘farming premises.’ ‘Farming premises’ includes hot only land owned by the insured, but also land rented or operated by the insured.
“The Kurtenbachs do not own or rent Highway 56. The trial court found, however, that they operated on Highway 56 because driving the motorcycle across the highway was a necessary part of farming operations. Glenn Kurtenbach stated it was a necessary part of farming operations to drive the motorcycle across Highway 56 from the farm to the rental property. Farm Bureau argues that driving the motorcycle across the highway does not constitute ‘the maintenance or use of the premises for the production of crops or the raising or care of livestock,’ citing Shatoska v. Widdon, 468 So. 2d 1314 (La. App. 1985), in support of its position.
Shatoska is distinguishable on its facts. The insurance policy defined ‘insured location’ as the residence premises or any premises used by tire insured in connection with the residence premises. The plaintiff was injured in an accident, and the defendant’s deposition indicated that the road where the accident occurred was a service road coming into the insured’s apartment complex. A survey plat map revealed, however, that the road was not a part of the apartment complex, and the court concluded that the accident did not take place on an insured location. 468 So. 2d at 1317-18.
“Farm Bureau also cites Farm Bureau Mut. Ins. Co. v. Sandbulte, 302 N.W.2d 104 (Iowa 1981). In that case, the insurance policy provided coverage for accidents occurring ‘in the insured premises or the ways immediately adjoining.’ 302 N.W.2d at 107. The rationale of Sandbulte may be sound, but the decision is distinguishable based on its facts. The definition of‘insured premises’ in the case at bar differs significantly from the definition in Sandbulte. Here, the ‘insured premises’ includes any land operated by the insured for farming, and farming encompasses all operations necessary for the maintenance or use of premises to produce crops or raise livestock.
“In concluding that the accident occurred on the ‘insured premises,’ the court applied a reasonable expectation test. ‘ “ ‘In construing an insurance policy, the words must be given their plain meaning, consistent with the reasonable expectations, objectives, and intent of the parties.’ ” [Citation omitted.]’ American States Ins. Co. v. McCann, 17 Kan. App. 2d 820, 824, 845 P.2d 74, rev. denied 252 Kan. 1091 (1993). In determining the intent of the parties, the test is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 572, 471 P.2d 352 (1970); see Saucedo v. Winger, 22 Kan. App. 2d 259, 261, 915 P.2d 129 (1996).
“The rental property was part of the Kurtenbachs’ farming operations. To access the property, they had to cross Highway 56. Unlike the facts in Sandbulte where the insured was using the road to travel from one tract to another, Scott was merely crossing the road. In Sandbulte, the separate tracts of property were connected by roads which made it possible for the insured to travel from one tract to another. In contrast, the farming operations in this case were separated by a highway which impeded the Kurtenbachs’ access to the rental property.
“Arguably, it would be unreasonable for Kurtenbach to assume that section 2.a.(l) of his Farm Master policy provided coverage for an accident that might occur as he was operating his motorcycle on a road to reach a tract of land several miles away. In that case, he would be utilizing a public road much as any registered, licensed vehicle to travel from one destination to another.
“By contrast, because traveling across Highway 56 was a necessary part of the Kurtenbachs’ farming operations, it would be reasonable for them to assume coverage under section 2.a.(l).
“As a general rule, coverage clauses are interpreted broadly to afford the greatest possible protection to the insured. United States Fidelity & Guar. Co. v. Farm Bureau Mut. Ins. Co., 2 Kan. App. 2d 589, 582, 584 P.2d 1264 (1978). Accordingly, the trial court;did not err in concluding that the accident occurred on the ‘insured premises’ as defined by the policy.”
Judge Lewis, in his dissenting opinion, agreed with the majority’s conclusion:
“I agree with the majority’s conclusion that the accident in question took place on the insured premises. I realize that the insureds did not own U.S. Highway 56 on which the accident took place. However, thé fact that the insureds were required to cross this highway in order tó obtain access to their rental ground is sufficient to allow us to conclude that the accident took place on the ‘insured premises.’ ”
We agree with the above analysis. In its policy, Farm Bureau defined “insured premises” as “the farming premises which you own, rent, or operate.” “Farming” is defined as “the maintenance or use of premises for tire, production of crops or the raising or care of livestock, including all necessary operations.” Because traveling across Highway 56 was a necessary operation to access rented property of the insured in his farming operation, we conclude that the accident occurred “on the insured premises” within the meaning expressed in Farm Bureau’s Farm Master policy.
(2) Was the motorized vehicle subject to motor vehicle registration because of its type or use?
This is the issue which divided the Court of Appeals. The majority decision, authored by Chief Judge Brazil, after determining that the accident occurred on the insured premises, concluded that the bodily injury or property damage resulted from the ownership and use of a motorized vehicle not subject to motor vehicle registration because of its use. According to the majority opinion, the motorcycle was an implement of husbandry as defined by K.S.A. 8-126(cc) and was therefore exempt from registration under K.S.A. 8-128(a)(1). ' ' ' ,
K.S.A. 8-126(cc) defines an implement of husbandry as:
“[Ejvery vehicle designed or adapted and used exclusively for agricultural operations and only incidentally moved or operated upon the highways. Such term shall include, but not be limited to:
(1) A farm tractor;
(2) a self-propelled farm implement;.
(3) a fertilizer spreader or nurse tank used exclusively for dispensing or spreading water, dust or liquid fertilizers or agricultural chemicals, as defined in K.S.A. 2-2202, and amendments thereto, regardless of ownership.”
In his dissenting opinion, Judge Lewis concluded that the motorcycle was not exempt from registration as an implement of husbandry because it was not “used exclusively for agricultural operations” as required by the definition of an implement of husbandly in K.S.A. 8-126(cc). Judge Lewis reasoned that the motorcycle was street legal and subject to motor vehicle registration under the provisions of K.S.A 8-127 and, therefore, not covered under the Incidental Motorized Vehicle Coverage provision.
The majority acknowledged that the motorcycle was not “used exclusively for agricultural operations” but concluded:
“In this case, a motorcycle was occasionally used for fun and fishing. Because an exact and literal interpretation of the definition of implement of husbandry would not serve the purpose of the registration requirement, the statute should be construed according to its spirit and reason. Such a construction of the statute allows a vehicle to retain its status as an implement of husbandry despite de minimis recreational use. Accordingly, the district court did not err in finding that based on its use, the motorcycle was not subject to vehicle registration, and therefore section 2.a.(l) provided coverage.”
Section 2.a.(l) of the Incidental Motorist Provision provides coverage for motorized vehicles that are not subject to motor vehicle registration because of their type or use. The terms of the policy necessarily refer us to the provisions of Kansas law relating to registration. Judge Lewis noted in his dissent that the motorcycle we deal with was “street legal.” By that he meant that the vehicle had all the equipment required by law for operation on the public highways of this state, including a headlight, turn indicators, a speedometer, a brake light, a muffler, front and back fenders, a tachometer, a mirror, and a horn. It is the type of motor vehicle subject to registration. We may conclude in accord with the statute and terms of the policy that based upon its type, the motorcycle is subject to registration. However, this conclusion does not end our inquiry, for we must, as the Court of Appeals did, examine the use made of the motorcycle and determine whether it is not subject to motor vehicle registration because of its use.
We are not convinced that the motorcycle in this case fits the definition of an implement of husbandry as determined by the Court of Appeals. It does not appear that the motorcycle was designed for agricultural operations in accord with K.S.A. 8-126(cc). While used in farming operations by the Kurtenbachs, it does not appear to have been adapted for agricultural operations in accord with K.S.A. 8-126(cc). See, e.g., Utah Farm Bureau v. Orville Andrews & Sons, 665 P.2d 1308 (Utah 1983) (pickup truck adapted for farm use by the installation of a feeder box). Finally, as pointed out in the dissenting opinion, the motorcycle was not used exclusively for agricultural operations in accord with K.S.A. 8-126(cc). Contrary to the majority opinion of the Court of Appeals, we conclude that the motorcycle involved was not an “implement of husbandry” and, therefore, not exempt from motor vehicle registration under the provisions of K.S.A. 8-128(a)(1).
However, even though the motorcycle is not specifically exempted from registration under K.S.A. 8-128, it may still not be subject to registration under Kansas law. K.S.A. 8-127 governs motor vehicle registration in this state. It provides:
“(a) Every owner of a motor vehicle, motorized bicycle, trailer or semitrailer intended to be operated upon any highway in this state, whether such owner is a resident of this state or another state, or such motor vehicle, motorized bicycle, trailer or semitrailer is based in this state or another state shall, before any such vehicle is operated in this state, apply for and obtain registration in this state under the provisions of K.S.A. 8-126 to 8-149, inclusive . . . .”
Thus, the motorcycle in this case may not be subject to registration if it is not “intended to be operated upon any highway in this state.” K.S.A. 8-127. The undisputed facts show that the motorcycle was purchased in 1979 and was not registered. It has never been registered in this state. According to the evidence, it was purchased for farming operations on Kurtenbachs’ farm. It was used to check fences and scout for musk thistles, and for other chores around the farm. Basically, it took the place of a horse.
Would the fact that the insured, both at the time he purchased the motorcycle and during the years since the purchase in 1979 up to the time of this accident, knew that the cycle was to cross the highway that split his farm require him to register the cycle under K.S.A. 8-127(a)? We think not. We must emphasize that our conclusion is very fact specific. Crossing Highway 56 to obtain access to farming property split by that highway does not, without more, demonstrate that the vehicle was “intended to be operated upon any highway in this state.” Thus, crossing Highway 56 at the time of this accident under the particular facts of this case did not require the motorcycle to be registered under K.S.A. 8-127(a). Nor would operation of the motorcycle by an insured within the confines of property owned or rented by the Kurtenbachs require registration of the motorcycle in this state.
The evidence in this case establishes that Scott operated the motorcycle on the township road approximately 10 to 15 times. There is no indication in the record when such operation occurred. In his dissenting opinion, Judge Lewis concluded that operation on the township road constitutes operation on a highway of this state and, thus, the motorcycle, being street legal, was subject to motor vehicle registration within the meaning of Farm Bureau’s policy. According to Judge Lewis, the motorcycle was therefore not covered by the policy. We, however, believe the answer to this question is more complex, for at the time of this accident the motorcycle was not, within the meaning of K.S.A. 8-127, being operated upon any highway of this state.
The dissenting opinion relies heavily upon an earlier Court of Appeals decision in Kresyman v. State Farm Mut. Auto. Ins. Co., 5 Kan. App. 2d 666, 623 P.2d 524, rev. denied 229 Kan. 670 (1981). In that case, Steven Kresyman, a minor, was injured when his minibike collided with the defendant’s automobile on Cherokee County road, a highway that passed the farm where he resided as a member of his parents’ household. The mini-bike, according to the manufacturer’s statement of origin, was not manufactured for use on public streets. It was neither titled nor insured. Had application been made to register the mini-bike, it could not have been registered because it was not equipped as required by K.S.A. 8-1801 et seq.
Steven Kresyman’s father owned and insured four vehicles with medical benefit limits under each of $2,000. Medical expenses of his son exceeded $14,000. Steven brought action seeking recovery of $8,000, claiming entitlement to stacked PIP benefits under his father’s policies. Recovery against State Farm was denied because at the time of the accident the mini-bike was “of a kind required to be registered in this state” and, therefore, “a motor vehicle with respect to which a motor vehicle liability insurance policy is statutorily required.” 5 Kan. App. 2d at 669.
The following language from Kresyman was quoted by the dissent:
“ ‘The mini bike is a motor vehicle under K.S.A. 8-126(b) definition; it is a self-propelled device upon which a person may be and was transported upon a public highway.
“ ‘Regarding registration, the following appears in K.S.A. 8-127(a):
“ ‘ “Every owner of a motor vehicle . . . intended to be operated upon any highway in this state . . . shall, before any such vehicle is operated in this state, apply for and obtain registration ....
“ ‘It is with respect to this statutory direction that plaintiff makes his material argument. He argues the mini-bike was not “of a kind required to be registered in this state” because the mini-bike was not intended to be operated upon any highway in this state.
“ ‘In our view, plaintiff mistakenly fails to take into account the K.S.A. 8-142 provision that “[i]t [is] unlawful for any person . . . [t]o operate, or for the owner thereof knowingly to permit the operation, upon a highway of any vehicle, as defined in K.S.A. 8-126, which is not registered. . . .’
“ ‘Reading K.S.A. 8-127(a) and K.S.A. 8-142 together and giving them both effect, as must be done, it is clear to us that the essence of their direction is that a motor vehicle operated upon a highway is to be registered, with the registration to be obtained before such operation. Various other statutory provisions within the motor vehicle laws and the act provide exceptions and exemptions but they play no role in this case. The “intended to be” wording of K.S.A. 8-127(a) is not an element in the definition of a motor vehicle “of a kind required to be registered in this state.”
“ ‘By operation of K.S.A. 8-127(a) and K.S.A. 8-142, the mini-bike, a self-propelled device transporting a person while being operated on a highway in this state, was a vehicle with respect to which a motor vehicle liability insurance policy was required by the act. This being so, plaintiff’s injury was beyond the scope of defendant’s obligation to pay PIP medical benefits.’ 5 Kan. App. 2d at 668-69.”
Judge Lewis in his dissent noted:
“I particularly rely on the language in Kresyman which construes K.S.A. 8-127(a) and K.S.A. 8-142 and says that under those statutes, ‘it is clear to us that the essence of their direction is that a motor vehicle operated upon a highway is to be registered, with the registration to be obtained before such operation.’ 5 Kan. App. 2d at 669. The motor vehicle in this case was designed to be used on the public highways, it was used on the public highways and, under the statutes of this state, was a vehicle required to be registered.”
We agree with Kresyman and partially with the dissent’s analysis of this issue. However, we must observe a crucial difference between Kresyman and the accident in this case. In Kresyman, the accident occurred on a county road, which is a public highway. See K.S.A. 8-126(s). The decision in Kresyman is dependent upon the fact that the mini-bike was, at the time of the accident, being operated upon a highway of this state:
“We caution that our decision must not be read too broadly. In this case, the accident occurred at a time when the mini-bike was operated on a public highway and the extent of our holding is that at that time it was a motor vehicle with respect to which a motor vehicle liability insurance policy was statutorily required.” 5 Kan. App. 2d at 669. (Emphasis added.)
Unlike Kresyman, the accident in this case occurred on Kurtenbach’s premises within the meaning of Farm Bureau’s policy while Scott was crossing Highway 56. As we noted above, this type of crossing under the particular facts of this case would not subject the motorcycle to the provisions of K.S.A. 8-127(a). Had this accident occurred at one of the 10 or 15 times since 1979 that Scott operated the motorcycle on the county road, no coverage would exist under the policy because the motorcycle at that time would be “subject to motor vehicle registration because of its use.” Moreover, it is clear that each time Scott operated it on the county road, he violated the laws of this state by operating an unregistered vehicle upon any highway of this state. See K.S.A. 8-142 (making it unlawful to operate a unregistered vehicle which is subject to registration).
The record in this case establishes that the motorcycle was not intended to be operated upon any highway of this state in a manner which would require registration under K.S.A. 8-127(a). Since 1979, with the exception of 10 to 15 times, it had been used as a horse for farm work, or for fun on property owned or rented by the insured. With the exception of those 10 to 15 times when Scott operated the motorcycle on the county road, the motorcycle’s use was consistent with the owners’ intended use for farm purposes and operation within the confines of the owners’ property. More importantly, at the time of the accident, the motorcycle was being used consistent with the owners’ intended use.
When we read the policy language defining insured premises and consider Kansas law regarding registration, evidence regarding use of the motorcycle since 1979, and the particular facts regarding its use at the time of this accident, we are satisfied that there was coverage under the policy. We are not prepared to say that once the wheels of the motorcycle touched the county road it was required to be registered under K.S.A. 8-127(a). Nor are we prepared to conclude that operating it 10 to 15 times on a county road since 1979, even though in violation of the law, makes the motorcycle subject to registration. Had an accident occurred during any one of the 10 to 15 times, it is clear that no coverage would have existed. Further, had the motorcycle been frequently operated on the highways in violation of the law, such fact might compel a different result regarding the need to register the motorcycle, and there would be no coverage.
We conclude, based upon the particular facts of this case, that the motorcycle was covered under section 2.a.(l) of the Incidental Motorized Vehicle Coverage provision in the Farm Master policy. The accident occurred on the insured premises, and at the time of the accident, the motorcycle was not subject to motor vehicle registration because of its use. We caution that our decision must not be read too broadly. It is important to our holding that the highway in question split the insured property, and it was necessary to cross it rather than travel upon it. This is not a case where the insured property could only be reached by traveling on any highway of this state. Had this accident occurred while the motorcycle was being operated on any highway instead of simply crossing Highway 56, no coverage would have existed under the policy.
Attorney Fees
The trial court awarded attorney fees to Kurtenbach in his defense of Farm Bureau’s declaratory judgment action on the basis of K.S.A. 40-256. The Court of Appeals concluded that the trial court erred in this decision. We agree. However, the Court of Ap peals further concluded that attorney fees and expenses should be awarded to Kurtenbach primarily based upon our decision in Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974). Farm Bureau argues that Upland provides no basis for the award because the policy language in this case, unlike the policy language in Upland, does not require the insurance company to pay for the reasonable expenses incurred by the insured at the company’s request. 214 Kan. at 151-52. Before further discussion, some background information regarding the parties’ dispute over attorney fees is helpful.
When Lyle Nelson filed suit for damages against the Kurtenbachs, they requested that Farm Bureau provide them a defense and indemnify them under the provisions of the Farm Master policy. Farm Bureau reviewed the facts of the accident and the provisions of its Farm Master policy. Farm Bureau then formally notified the Kurtenbachs that no coverage existed under the policy based upon the exclusions but agreed to defend the Kurtenbachs under a reservation of rights.
After the above notification, Farm Bureau filed a declaratory judgment action under the provisions of K.S.A. 60-1701, specifically requesting that
“the Court interpret the policy in light of the facts and circumstances arising from the accident on July 20, 1992 and that said Court make a determination that Plaintiff has no obligation to any defendant to defend any action or to pay any judgment rendered ¿herein under Policy M40341.”
The Kurtenbachs retained counsel to defend against the declaratory judgment action and specifically asked the court to order Farm Bureau to pay for the attorney fees expended in defending the declaratory judgment action.
On this issue, the Court of Appeals after an analysis of Kansas law concluded:
“In the present case, the insurance policy does not contain specific language expressly obligating Farm Bureau to pay the Kurtenbachs’ attorney fees incurred in this declaratory judgment action. However, because the insurance policy provides coverage and Farm Bureau had a duty to defend, under ¿he Upland rule, the Kurtenbachs are entitled to recover their attorney fees and expenses incurred in defense of the declaratory judgment action. See 214 Kan. 145, Syl. ¶ 2. Accordingly, the trial court did not err in awarding those fees.”
Upland, was a declaratory judgment action brought by Upland Mutual Insurance, Inc., seeking a determination that no coverage existed under a homeowner’s policy. The insureds prevailed on the coverage issue. In addition, the court awarded the insureds their fees and expenses in the declaratory judgment action, stating:
“We further hold that the [insureds] are entitled to recover attorney fees and expenses of litigation incurred in defense of this declaratory judgment action. We recognize that there is a decided split óf authority on the subject. The cases pro and con are cited in 7A Appleman, Insurance Law and Practice, § 4691 (1962). Appleman after pointing out the decisions holding that where an insurer failed to defend until after an adverse decision in a declaratory judgment action instituted by it, the insurer was not liable to pay the attorney fees and expenses incurred by the insured in the declaratory judgment action, in the absence of fraud, bad faith or stubborn litigiousness on the part of the insurer, makes the following critical comment:
‘. . . But, despite the qualifications placed upon this rule by the court, it still appears to be unfair to the insured. After all, the insurer had contracted to defend the insured, and it failed to do so. It guessed wrong as to its duty, and should be compelled to bear the consequences thereof. If the rule laid down by these courts should be followed by other authorities, it would actually amount to permitting tire insurer to do by indirection that which it could not do directly. That is, the insured has a contract right to have actions against him’ defended by the insurer, at its expense. If the insurer can force him into a declaratory judgment proceeding and, even though it loses in such action, compel him to bear the expense of such litigation, the insured is actually no better off financially than if he had never had the contract right mentioned above. . . .’ (pp. 512,513.)
“We find the comments of Appleman just quoted to he persuasive. In this case the trial court ruled that Upland Mutual is obligated to pay the [insureds’] attorney fees incurred in the declaratory judgment suit — not on the basis of a denial of a claim without just cause or excuse under K.S.A. 40.-256 — but because the filing of this suit constituted a ‘request’ by Upland and therefore the company is obligated under its policy to reimburse the [insureds] for all reasonable expenses incurred at the company’s request.” (Emphasis added.)'214 Kan. at 151-52.
Farm Bureau points out that the trial court in Upland noted that the “insurance contract issued by the Plaintiff requires it to reimburse insured for all reasonable expenses incurred at the company’s request.” According to Farm Bureau, absent some similar language in the insurance policy in the case at hand, the “American rule” regarding fees should apply. That rule, which is well established in Kansas, is that in the absence of statutory or contractuál authorization, each party to litigation is responsible for his or her own attorney fees. See T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 727, 924 P.2d 1239 (1996).
The trial court in Upland did focus upon the idea that by filing a declaratory judgment action, the insurance company was “requesting” the insured to perform certain acts for which it was required to reimburse the insured for reasonable expenses. Further, in affirming the trial court’s decision to award fees, this court did note the same language relied upon by the Upland trial court. However, the rationale for this court’s decision in Upland also rested upon the language quoted from Appleman suggesting that the expenses connected with enforcing the contractual right to a defense under a policy of insurance by an insured who prevails in defending his or her coverage against its own insurer’s declaratory judgment action should be reimbursed, by the insurer. See 214 Kan. at 152.
Although the Farm Master policy in this case did not include, as did the policy in Upland, a provision that the insurer would reimburse the insured for expenses incurred by the insured at the insurers request, the policy did include language that “reasonable expenses any insured incurs” will be reimbursed by the insurer. The question of attorney fees and expenses where the insurer agrees to defend under a reservation of rights and initiates a declaratory judgment action to relieve itself of that duty and coverage remains.
The “decided split of authority” referred to in Upland still exists. See Annot., 87 A.L.R.3d 429 § 2[a]; 7C Appleman, Insurance Law and Practice § 4691 (1979); 15A Couch on Insurance 2d § 58.141 (rev. ed. 1983); Jerry, Understanding Insurance Law § 111[3] (2d ed. 1996). Courts which have decided this issue have adopted three basic positions: The first is that an insured may not recover his or her attorney fees expended in a declaratory judgment action, even where the insurer is ultimately found to owe coverage and a duty to defend. The second is that an insured may recover fees if it can be shown that the insurer acted in bad faith in denying coverage and a defense. Still a third position is that, if the insurer is found to owe coverage and a duty to defend, attorney fees are available. See Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 193-94, 342 S.E.2d 156 (1986), and cases cited therein.
In Upland, we held:
“Where an insurance company denies coverage and the duty to defend under a homeowner s liability insurance policy and brings a declaratory judgment action against the insured to determine that issue, the insured is entitled to recover attorney fees and expenses incurred in defense of the declaratory judgment action if it is determined that there is coverage and a duty to defend.” 214'Kan. 145, Syl. ¶ 2.
We later reaffirmed this holding in Missouri Medical Ins. Co. v. Wong, 234 Kan. 811, 823, 676 P.2d 113 (1984).
Farm Bureau notes in this case that it agreed to provide a defense under a reservation of rights and, therefore, did not violate its duty to defend under its contract of insurance, rendering Upland inapplicable. It is at this point that we must disagree with the position advanced by Farm Bureau.
It is true that Farm Bureau agreed to defend the case against Kurtenbach under a reservation of rights. However, Farm Bureau then instituted a declaratory judgment action seeking a determination that it had no duty to defend or provide coverage under its policy. The Kurtenbachs were required under these circumstances to incur expenses and attorney fees to maintain their right to a defense under the policy. As we stated in Upland-.
“ ‘[T]he insured has a contract right to have actions against him defended by the insurer, at its expense. If the insurer can force him into a declaratory judgment proceeding and, even though it loses in such action,, compel him to bear the expense of such litigation,- the insured is actually no better off financially than if. he never had the contract right mentioned above.’ ” 214 Kan. at 152 (quoting 7A Appleman, Insurance Law and Practice § 4691, pp. 512-13 [1962]).
There is a valid distinction to be drawn between an insurer who agrees to defend its insured and then actually does so even under a reservation of rights, and an insurer who, although expressing its intent to defend under a reservation of rights, files a declaratory judgment action seeking a determination that it has no duty to defend or cover the insured under the policy. Where an insurer gives notice of its intent to defend undera ¡reservation of rights and then brings a declaratory judgment action against its insured before the underlying suit is resolved, seeking a determination that it has no duty to defend, the insured must expend his or her personal funds to enforce a duty under the existing policy — the duty to defend.
Consistent with our decisions in Upland and Wong, we therefore hold that where an insurer denies coverage and the duty to defend and brings a declaratory judgment action against the insured to determine that issue, the insured may recover his or her attorney fees incurred in the defense of the declaratory judgment action if it is determined as a result of that action that there is coverage. Upland, 214 Kan. 145, Syl. ¶ 2; see Wong, 234 Kan. at 823. The same rule is applicable where an insurer agrees to assume the duty to defend under a reservation of rights, but before the underlying matter is resolved brings a declaratory judgment action seeking a determination that no duty to defend or coverage exists.
The availability of expenses and attorney fees in such a situation is necessarily dependent on the existence of coverage. If it is determined in the declaratory judgment action that no coverage exists under the policy, the fees and expenses incurred by the insured are his or her own expense. If no coverage exists, the insurer is without obligation to either defend or to pay for any judgment rendered. Neither the insurance policy itself nor any statute in this state would require the insurer to pay for other than its own expenses and fees in such declaratory judgment action.
However, if it should be determined that coverage exists, one may conclude that the insured was compelled to expend his or her own funds in litigation expenses to obtain the benefit of his or her bargain with the insurer. If these expenses are not reimbursed to the insured, the insured fails to obtain a substantial benefit already paid for under the policy: the defense of the claim.
The Kurtenbachs have also asked in this case for fees in the amount of $800 and expenses in the amount of $42 incurred in connection with the preparation and argument before this court. We award those fees pursuant to Rule 7.07 (1997 Kan. Ct. R. An- not. 49). We also affirm the Court of Appeals’ award of attorney fees in this matter.
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|
The opinion of the court was delivered by
Larson, J.:
This first impression case raises important questions concerning the assessment methods of valuing oil and gas leases for ad valorem property tax purposes in Kansas.
Procedural Summary
Bankoff Oh Company (Bankoff) paid its 1993 taxes on an oil and gas lease in Ness County under protest pursuant to K.S.A 79-2005 and commenced proceedings before the Board of Tax Appeals (BOTA), requesting substantial decreases in the valuation of the lease and a resulting refund of property taxes. After an initial hearing, BOTA declined to change the valuations and ruled in favor of Ness County.
Bankoff requested reconsideration, and, in a three-to-two reconsidered opinion, BOTA ruled that when an oil and gas lease began evidencing a production decline in the last quarter of the year previous to the assessment period, production data generated after January 1 of the year of appraisal was properly used to determine the correct decline rate of the lease. A decline rate was established which resulted in a decreased valuation and resulting tax refund.
Ness County filed a petition for judicial review of BOTA’s action pursuant to K.S.A. 77-601 et seq. The trial court ruled BOTA’s reconsidered order was supported by substantial competent evidence and that Ness County failed in its burden of proving grounds existed for overruling BOTA’s decision under K.S.A. 77-621.
Ness County appealed, and the Court of Appeals, in a two-to-one decision, reversed the trial court, holding usage of production information generated subsequent to January 1 of the assessment year violates the requirements of K.S.A. 79-301 that personal property be assessed as of that date. The Court of Appeals invalidated provisions of the 1993 Kansas Oil and Gas Appraisal Guide of the Division of Property Valuation of the Kansas Department of Revenue (Guide) and ordered the district court to reinstate the original BOTA decision. Board of Ness County Comm’rs v. Bankoff Oil Co., 24 Kan. App. 2d 532, 949 P.2d 628 (1997).
The dissenting opinion stated the majority had abandoned the strong presumption of correctness of agency actions, would force implementation of a new assessment system that is less reliable and sometimes erratic, and had denied usage of the best available information in determining the true value of an oil and gas lease. 24 Kan. App. 2d at 540-41.
We granted Bankoff’s petition for review. We reverse the Court of Appeals and affirm the district court.
Factual Statement
While the foregoing summary generally establishes the issue before us, a more detailed statement is required to present the factual information relating to the oil and gas lease and the manner in which its valuation was established.
Bankoff operates two wells on the Linden oil and gas lease (Linden Lease) in the Brownell field, producing oil from the Cherokee Sand formation in Ness County, Kansas. The discovery well was located on the Linden Lease, which has extremely high permeability resulting in substantial initial gas-driven production and an eventual high rate of decline.
The Linden Lease had not shown decline characteristics for the years 1989, 1990, and 1991, primarily due to restrictions of the production equipment utilized. The defining factual issue in this case is whether the Linden Lease commenced a characteristic decline in late 1992 or should be assessed with essentially no decline for that year.
K.S.A. 79-329 declares that oil and gas leases producing or capable of producing in paying quantities together with all equipment thereon are personal property and are to be assessed and taxed as such. Oil and gas leases are required to be listed for taxation as of January 1 of each year pursuant to K.S.A. 79-301, with the valuation to be filed on or before March 15 of each year as required by K.S.A. 79-306, and are subject to penalties if not filed on or before April 1 of each year under the provisions of K.S.A. 79-332a.
In February 1993, Bankoff filed the required statement for the Linden Lease, showing a production decline rate of 2 percent and a fair market value of $3,357,045, resulting in an assessed valuation at the 30 percent rate required by K.S.A. 79-1439(b)(2)(B) of $1,007,114. The Ness County Appraiser valued the lease at $3,361,222, with an assessed value of $1,008,367. This valuation resulted in a 1993 property tax assessment of $99,942.28.
Later in 1993, Bankoff determined their computer-generated ad valorem tax assessment program had not accurately reflected an actual decline in production beginning in the fourth quarter of 1992, which when compared to the first quarter of 1993 revealed a quarterly decline of 16 percent, representing an annualized decline in excess of 50 percent. Bankoff additionally compared the Linden Lease production with that from other leases in die Brownell field and production from the nearby Jolly field also producing from the Cherokee Sand formation, disclosing similar substantial declines.
Bankoff exercised its statutory prerogative of paying the 1993 taxes under protest and applied to BOTA for a refund as allowed by K.S.A. 79-2005, thereby initiating the proceedings appealed from in this case.
The ultimate factual question involved in this appeal is the appropriate 1993 valuation of the Linden Lease. The procedure by which this is determined was best described by John R. Cooper, manager of the oil and gas section of the Division of Property Valuation of the Kansas Department of Revenue, at the reconsideration hearing where he responded to the following question:
“Q. On established production, that is other than new production, what methodology does the guide provide for arriving at market value for an oil lease?
“A. Well, the theory of the guide is that we are appraising the reserves that are in the ground. And so the guide, the basic mechanics of the guide is to discount income over a period of time to reflect the production capabilities of that reserve. And then it combines with that a rate of decline which is indicating that that reserve is depleting. That is combined with a discount, discounting the money— for the money that is not received until a later time. You get a present worth factor, which is a multiple of money, and that’s multiplied times the value, or price of the oil, times the production; and that’s to indicate a probable reserve value, from which is deducted the expenses for lifting the oil, to get a net working interest. Then they add the equipment, production equipment, to that, for the working interest. So it’s based on the probable life of the reserve, and the probable dollars per barrel that will be received by the operator, or the working interest.”
A mass appraisal technique has been developed for valuing oil and gas leases in Kansas by the Director of Property Valuation, with advice and input from a committee consisting of representatives of the oil and gas industry and county assessors. The Director, as provided by K.S.A. 75-5105a, issues appraisal guides directing that valuations of oil and gas leases shall be determined by utilizing the following formula to compute gross reserves:
- X _=_ X _=_
1. Total Amount 2. Net Price 3. Estimated 4. Present 5. Estimated Gross (Bbls.) as of Jan. 1 Gross Worth Reserve Value Production Income Factor
As the other items in the formula are relatively fixed, the critical factor is the present worth factor (PWF). The PWF is defined in section VI of the Guide as
“dependent on the discount rate and the duration of income. The value of money (income) [varies] with the time necessary for its return, the cost of using it, its current and future purchasing power, and its availability. Money to be received in the future is not worth as much as money to be received today.
“The PWF incorporates into the manual the life and performance characteristics based on the percentage rate of decline which is computed for each particular lease ... .”
The PWF’s for 1993 ran from 3.009 for a 5 percent decline, reduced to 2.087 for an 18 percent decline and ultimately went down to .780 for a decline in excess of 50 percent. It is apparent that the determination of the decline to be applied to the lease becomes the most critical factor in establishing its valuation.
The Guide makes the following statements relating to the determination of the nature and extent of the decline rate:
“II. DECLINE
“Producing a finite reserve results in a depleting asset. The rate of depletion is known as the decline rate. An oil reserve produced at its potential will theoretically begin to decline immediately. When a lease is new and just beginning its production, the decline rate is not known. The decline rate estimate depends on the age of the lease and cannot be predicted accurately until a reasonable length of time has passed. A history of the lease should be kept for this purpose.
“No rules can be established to cover every facet. Decisions based on logical judgement and factual situations with similar leases in the general locale must prevail. If the lease operator or the appraiser annualizes production in any year, the annualized production shall not be used in any succeeding year to estabbsh a percentage decline. Decline curves should be used to establish the decline.
“The following guidelines are recommended:
‘A. New Leases
“Use the first few months of production to estabbsh the decline rate. If the first few months of production and all data available indicate no decline, it is suggested the appraiser consider the use of an assumed 30% annual decline rate and evaluate the property on this basis. This, however, is not automatic and is to be used only when the actual decline rate cannot be estabbshed. Use of a proven neighborhood decline rate may be considered appropriate after proper consideration for flush production, but only when the new well or webs are completed in the same reservoir. Requests for consideration of percentage decline above 30% or adjustments by the appraiser below 30% should be documented by production decline, water cut and/or gas oil ratio curves.
“Abnormal shape decline is usually found with initial production from newly completed wells on new leases, added wells on existing leases, and recompletions or workovers on existing leases. ... A lease with initial ‘flush’ production will show an abnormal sharp decline followed by change in the decline rate to normal rate of decline. If the property shows a constant rate of decline after the ‘flush’ production, the appropriate present worth factor for that rate should be used with production annualized for the period reflecting the stabilized production period.
“For leases that are less than one year old and in cases where an annual decline rate cannot be calculated, compute the annual decline rate by using back-to-back quarters, such as prior year last quarter with current year first quarter, and convert to an annual decline by using the following table. Requests should be accompanied by decline curves for as much history as is available.
“Quarter Decline Annualized Table Quarter % = Annual Decline %
5% ............................................................ 19%
7% ............................................................ 25%
8% ............................................................ 29%
10% .......................................................... 34%
15% .......................................................... 48%
“Example:
1992 last quarter: Oct/Nov/Dec 800/750/725 = 2275 bbls.
1993 first quarter: Jan/Feb/Mar 700/690/695 = 2085 bbls.
Quarterly decline 2275 - 2085 = g% 2275
Annualized decline 29% (from table)
“This table should be used as a guide only since new lease declining 15% in the first quarter may continue at a sharp decline over the next 12 months, but may not decline as great as 48%.
“When adjustment is requested by the operator for obvious abnormal sharp decline, it should be supported by data not only for the prior year demonstrating this decline, but production for the year of assessment. A misapplication of the decline factor could result in extreme under or overappraisal of the lease.
“If the appraiser needs assistance in estimating the decline rate, refer the lease rendition to the Property Valuation Division.
“B. Existing Leases
“To estimate the decline rate on an existing lease having stable production from year to year,- the current year decline is figured by using the prior two production years. For the 1993 tax year, use 1992 and 1991 as follows:
Decline = 1991 Production - 1992 Production 1991 Production
Ex, 1408 Bbls. -1234 Bbls. - 12% 1408 Bbls.
“When using prior years’ production to estimate the current year decline, the appraiser must be sure that the production figures are for a full year and represent a typical operation with no significant workover periods or lease shutdowns or other nonproducing periods effecting the lease producing capability.”
In regards to the proper method of valuing the Linden Lease, the Court of Appeals’ opinion in this case well summarizes the testimony from the initial BOTA hearing:
“At the initial BOTA hearing, Bankoff presented the testimony of Barney Sullivan, a tax consultant specializing in mineral properties. Sullivan stated that he had testified as an expert before BOTA many times and that he had been involved in the formulation of the PVD Guide. In calculating the decline rate of the Linden lease, Sullivan compared the last quarter of 1992 to the first quarter of 1993, arriving at a 16 percent decline for that period. Sullivan annualized this to a 50.2 percent decline. Sullivan’s rationale for the decline calculations came from the PVD Guide, which Sullivan quoted as follows:
‘For leases that are less than one year old and in cases where an annual decline rate cannot he calculated, compute the annual decline [rate] by using back-to-back quarters, such as prior year last quarter with current year first quarter, and convert to an annual decline by using the following table.’ (Emphasis added.)
“Sullivan testified that this language applied both to new leases and to cases where an annual decline rate cannot be calculated and that the Linden lease fell under the second application. Sullivan testified further that it was ‘absolutely inappropriate’ to use a comparison of the prior 2 years where a lease has a considerable decline. Sullivan agreed that if the decline rate on the Linden lease is figured by comparing the production in 1991 to that in 1992, then a 2 percent decline rate is indicated.
“Bankoff also presented the testimony of Richard J. Flaker, a consulting petroleum engineer. Flaker testified that there are 14 wells in the Brownell field and that they all pump oil from a common source. Using exhibits and charts, Flaker showed that although production at Brownell field reached a sharp peak in August 1992, the Linden lease wells had a flat production from 1990 through October 1992. Flaker testified further that the Linden lease wells would have peaked with the rest of the Brownell field had they not been mechanically limited.
“Flaker compared Linden lease’s production for the last quarter of 1992 to the first quarter of 1993 and arrived at a 16 percent decline for that period. Flaker utilized data from the entire Brownell field as well as a similar field, known as the Jolly field, in determining the reasonableness and appropriateness of the 16 percent decline rate.” 24 Kan. App. 2d at 535-36.
“[T]he county appraiser testified that in determining the amount of decline, she looks at both the annual and historic decline. The decline curve that the county appraiser plotted on the Linden lease from its beginning in 1989 through the end of 1992 did not show a decline. The county appraiser compared the linden lease’s production in 1991 to that in 1992 and arrived at a 2 percent decline. At some point, the county appraiser examined the production figures for the first quarter of 1993; however, she testified that this information would not have changed her calculation because she had seen oil leases suffer a decline and then go back up and stabilize.
“In a letter to BOTA dated August 29,1994, the county appraiser stated: “When I work the present year renditions I do consider the first quarter of that year since it is available and it can indicate change, but at this point this lease had no indication of a fall in production.’ ” 24 Kan. App. 2d at 535.
BOTA affirmed the county’s appraiser’s assessment following this initial hearing, and its order dated October 12,1994, in applicable part, stated:
“The county properly valued the subject property using the guidelines as established by PVD. The taxpayer argues that the PVD guidelines indicate that the county can use post valuation ... data to value the property. The Board notes that the guidelines state that post valuation data may be used only in cases where the annual decline rate cannot be accurately calculated or if the lease is new. Here, the subject property has been producing oil for three full years prior to the valuation date and a rehable production history had been established. The production history indicated that production had been fairly stable over the three year period and the county used the information available as of January 1,1993, to value the property. Therefore, the county was not in error to refuse the taxpayer’s request to use production data obtained after January 1, 1993. Furthermore, to deviate from the guidelines and value the subject property differently than other similar property in the area would violate the uniform and equal clause of the Kansas constitution. To explain, existing oil leases in the county should be valued as of January 1,1993, using production information obtained in 1991 and 1992. If the county were to use 1993 production for this one lease only, then would be valued differently than the other leases in the county and thus, not uniform and equal.”
Bankoff filed a petition for reconsideration, contending BOTA failed to consider the significant and permanent decline of production from the Linden Lease commencing in October 1992, as well as evidence of the county appraiser’s allowing substantial declines in valuing other leases in the same Brownell field.
BOTA granted the petition for reconsideration. At the second hearing, Richard Flaker again testified substantially as he had previously done. He stated tibe Linden Lease reached its peak production in June 1992, that its decline was apparent commencing October 1992, and that it experienced a 16 percent decline in the last quarter of 1992 compared to the first quarter of 1993, which should be annualized for a decline of 50 percent. This would result in an assessed 1993 valuation of $165,805, a correct property tax of $16,433, and a tax refund of approximately $83,000.
Bankoff also presented evidence that the county appraiser had allowed a 30 to 50 percent decline on all of the other oil and gas leases in the Brownell field adjacent to and around the Linden property.
Other new testimony presented at the reconsideration hearing was that of Cooper, the person primarily responsible for drafting the Guide. Cooper testified generally as to the application and usage of mass appraisal techniques to determine oil and gas lease values throughout the state. He indicated the Guide was not meant to limit the use of comparing the last quarter of the preceding year to the first quarter of the current year to new leases only. He stated his office recommended using the data from the first quarter of the current year if a sharp decline is indicated that otherwise would not be evidenced by comparing the previous 2 years. Because the Linden Lease took on the characteristics of a new lease due to a sharp decline commencing in October 1992, in valuing the property for 1993 he would annualize the first 3 months of 1993 production to compute the proper decline rate.
Cooper testified that the Guide’s method of considering the two prior years in valuing leases was only useful in cases of stabilized production, but that method did not appropriately value other leases. Cooper said that an additional recognized method of calculating decline was to look at the field where the lease in question was located generally and then compare that data to the lease in question. Cooper specifically stated:
“[W]henever these production numbers start changing, ... it would certainly indicate one of two things; one, that the price of oil dropped, and they started slowing down production; or that some decline started showing up. Its natural production was starting to slow down. So it would be an obvious question to ask, if it was pointed out — not all of these returns that are provided to the county, not all of the operators provide the first three months. So when, people — when the counties call us, we say, ‘get the first three, and even the first four, if you can, and see what is happening there now.’ And then we have advised in the past to take the first three or four months and annualize that as the production to look for, for the next 12 months, and combine that with some kind of decline.”
As to the Linden Lease, Copper did not opine a specific decline, but in comparison to the other fields, stated: “[I]f the field has a fifteen to twenty percent decline, that would certainly be a place to start.”
Ness County contended that no change in the valuation should be made and requested reissuance of the order previously entered. The county’s evidence remained the same at the reconsideration hearing as at the previous hearing.
Bankoff continued to make a uniform and equal argument, asserting that because most of the other leases in the same field had been given declines from 30 to 50 percent and the Linden Lease had not been likewise treated, it was being unfairly and unequally assessed.
In BOTA’s reconsidered order dated June 28, 1995, the testimony of Cooper was given prime emphasis. The order stated:
“6. . . . [T]he various methods described in the Guide are alternatives which should be selected on the basis of which is the most appropriate and not where they are found in the Guide; . . . and that for eighteen years he has been advising county appraisers to consider available data even up to June or July of the current year when taxpayers questioned the appraisal (even though the appraisal date is January 1).
“8. . . . The evidence also shows that the Ness County Appraiser does consider current year production. In regard to this appeal, and the appraiser, Judy Humberg, wrote to the Board a letter dated August 29, 1994, stating:
“When I work the present year renditions I do consider the first quarter of that year since it is available and it can indicate change, but at this point this lease had no indication of a fall in production.’
“9. After a review of all the evidence, the Board finds that using alternative methods of computing decline rates (including the consideration of current year production) has been advised by PVD for many years and is a common practice among appraisers, including the Ness County Appraiser. Accordingly, the Board finds the use of such techniques in this case does not violate the constitutional requirement of a uniform and equal basis for valuation.
‘TO. The Board has examined the production figures presented in Taxpayer Exhibit #3. Oil production in the last quarter of 1992 totaled 20,024 barrels while production for the first quarter of 1993 totaled 16,505 barrels. This is a decline of approximately 18%. Had the county taken into account production as late as June or July, as advised by John Cooper, the decline would have been greater. The Board finds, in this instance, the county did have an indication of a fall in production and should have used available information to calculate an accurate decline rate.
“12. The Board, in this case, finds the most appropriate method for computing the decline rate of the subject property is the suggestion by Mr. Cooper to annualize the 1993 first quarter production and compare the result with the previous year’s production. Using the production figures in Taxpayer Exhibit #3, the Board calculates a total 1992 production of 80,390 barrels and a 1993 first quarter annualized production of 66,020 barrels. The annual 1993 production falls approximately 18% below the 1992 production, resulting in an 18% decline rate. This is the same decline rate arrived at if figured from the back to back quarters using the last quarter production of 1992 (20,024) and the first quarter of 1993 (16,505).
“IT IS THEREFORE, BY THE BOARD OF TAX APPEALS OF THE STATE OF KANSAS, CONSIDERED AND ORDERED that for the 1993 tax year, the subject property shall be assigned a decline rate of 18%.”
Two of B OTA’s members dissented from this reconsidered opinion, writing: “It appears that we are using 1993 figures to calculate a decline when we should be using only 1990, 1991, and 1992, production figures. . . . We feel the county appraiser had correctly evaluated the rate of decline, and so we would sustain the county’s value.”
Upon Ness County’s appeal, the district court held there was substantial competent evidence to support BOTA’s reconsidered decision and that Ness County had failed to prove adequate grounds for a reversal.
In reversing, the Court of Appeals centered its opinion on the K.S.A. 79-301 provision that personal property subject to taxation shall be assessed as of January 1 of each year. The court held the Guide was in conflict with such statutes and therefore invalid. The practice of using data beyond the January 1 assessment date was thereby prohibited. 24 Kan. App. 2d 539-40.
We granted Bankoff’s petition for review in order to settle the divergent views of BOTA and the Court of Appeals.
Standard of review
Our standard of review of the actions of BOTA is pursuant to K.S.A. 77-621(c). In re Tax Appeal of Boeing Co., 261 Kan. 508, 514-15, 930 P.2d 1366 (1997). We may only grant relief if we find:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which included the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c).
In Boeing, we said: “BOTA is a specialized agency that exists to decide taxation issues. BOTA’s decisions should be given great deference when it is acting in its area of expertise. However, if we find that BOTA’s interpretation is erroneous as a matter of law, we should take corrective steps.” 261 Kan. 508, Syl. ¶ 3. A party challenging the validity of BOTA’s action has the burden of proving it was erroneous. In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d 947 (1996).
While our ultimate result will depend upon the principles set forth above, we must first answer a critical question of statutory construction relating to the effect of K.S.A. 79-301, which is a question of law over which we have unlimited review. Miami County v. Svoboda, 264 Kan. 204, Syl. ¶ 1, 955 P.2d 122 (1998). In interpreting the applicable statutes, we look to the rules set forth in Todd v. Kelly, 251 Kan. 512, 515-16, 837 P.2d 381 (1992):
“The function of the court is to interpret the statutes, giving the statutes the effect intended by the legislature. State ex rel. Stephan v. Kansas Racing Comm’n, 246 Kan. 708, 719, 792 P.2d 971 (1990).
‘“As a general rule, statutes are construed to avoid unreasonable results. Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied 233 Kan. 1093 (1983). There is a presumption that the legislature does not intend to enact useless or meaningless legislation. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 7, 643 P.2d 168 (1982).’ City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 221, 696 P.2d 409 (1985).
“‘A construction of a statute should be avoided which would render the application of a statute impracticable or inconvenient, or which would require the performance of a vain, idle, or futile thing, or attempt to require the performance of an impossible act.’ In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 8, 643 P.2d 168 (1982). See 73 Am. Jur. 2d, Statutes § 251.
‘“In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ In re Marriage of Ross, 245 Kan. 591, 594, 783 P.2d 331 (1989).
‘“[T]he court must give effect to the legislature’s intent even though words, phrases or clauses at some place in the statute must be omitted or inserted.’ Ross, 245 Kan. at 594.
‘“In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia. . . .’ Kansas Commission on Civil Rights v. Howard, 218 Kan. 248, Syl. ¶ 2, 544 P.2d 791 (1975).”
Analysis
In Kansas, oil and gas leases are assessed and taxed as personal property for ad valorem taxation. K.S.A. 79-329; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 224, 436 P.2d 982 (1968). K.S.A. 79-301 provides:
“All tangible personal-property subject to taxation shall be Usted and assessed as of the first day of January each year in the name of the owner thereof. Such Usting and assessment shall be made as hereinafter provided.”
K.S.A. 79-501 and K.S.A. 79-1439(a) require personal property subject to ad valorem taxation to be appraised uniformly and equally at its fair market value. Fair market value is defined by K.S.A. 79-503a as
“the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. For the purposes of this definition it will be assumed that consummation of a sale occurs as of January 1.
“Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and other factors including but not by way of exclusion:
“(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
“(f) productivity;
“(g) earning capacity as indicated by lease price, by capitalization of net income or by absorption or sell-out period; [and]
“(k) comparison with values of other property of known or recognized value. The assessment-sales ratio study shall not be used as an appraisal for appraisal purposes.
“The appraisal process utilized in the valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures which are adaptable to mass appraisal and consistent with the definition of fair market value unless otherwise specified by law.”
K.S.A. 79-505 directs:
“(a) The director of property valuation shall adopt rules and regulations or appraiser directives prescribing appropriate standards for the performance of appraisals in connection with ad valorem taxation in this state. Such rules and regulations or appraiser directives shall require, at a minimum:
(1) That all appraisals be performed in accordance with generally accepted appraisal standards as evidenced by the appraisal standards promulgated by the appraisal standards board of the appraisal foundation which are in effect on March 1,1992; and
(2) that such appraisals shall be written appraisals.
“(b) The director of property valuation or a county appraiser may require compliance with additional standards if a determination is made in writing that such additional standards are required in order to properly carry out statutory responsibilities.”
K.S.A. 79-331 sets forth requirements for appraising the value of oil and gas leases. It reads:
“(a) Except as otherwise provided in subsection (b) of this section, in determining the value of oil and gas leases or properties the appraiser shall take into consideration the age of the wells, the quality of oil or gas being produced therefrom, the nearness of the wells to market, the cost of operation, the character, extent and permanency of the market, the probable life of the wells, the quantity of oil or gas produced from the lease or property, the number of wells being operated, and such other facts as may be known by the appraiser to affect the value of the lease or property.
“Whenever a county board of equalization or the state board of equalization shall make a change in any of the factors or figures used in determining the eight-eighths (8/8ths) valuation of the production for any oil or gas lease or property, such change shall apply to the working interest, royalty interest, overriding royalty interest and production payments.
“(b) The valuation of the working interest and royalty interest, except valuation of equipment, of any original base lease or property producing oil or gas for the first time in economic quantities on and after July 1 of the calendar year preceding tlie year in which such property is first assessed shall be determined for the year in which such property is first assessed by determining the quantity of oil or gas such property would have produced during the entire year preceding the year in which such property is first assessed upon the basis of the actual production in such year and by multiplying the income and expenses that would have been attributable to such property at such production level, excluding equipment valuation thereof, if it had actually produced said entire year preceding the year in which such property is first assessed by sixty percent (60%).
“(c) The provisions of subsection (b) of this section shall not apply in the case of any production from any direct offset well or any subsequent well on the same lease.”
K.S.A. 79-331(b) provides that production from a new well which is the first on a lease shall be discounted in order to reflect the decline in “flush production” which will occur in subsequent years so as to better assess the proper value of its future production. This subsection compels appraisers to anticipate a decline in production, even though no decline is apparent from a lease’s prior production history. See State ex rel. Stephan v. Martin, 230 Kan. 747, 756-57, 641 P.2d 1011 (1982).
In approving the constitutionality of K.S.A. 79-331(b) in State ex rel. Stephan v. Martin, 230 Kan. at 756-57, we stated that the provision was enacted in order to address a problem of ad valorem tax valuation peculiar to the oil and gas industry. Without such a provision, we noted the production value of a new lease would be greatly inflated, resulting in excessive valuation and assessment. We held that the objective under both 79-503a and 79-331 “is to reach the actual fair market value in the market place as opposed to a fictional, unrealistic, or arbitrary determination.” 230 Kan. at 755. While not specifically so stating, this decision in effect upheld the entire statutory method of valuing oil and gas properties.
To support our holding in Martin, we quoted from the trial court’s findings of fact set forth in Angle v. Board of County Commissioners, 214 Kan. 708, 712-13, 522 P.2d 347 (1974):
“ ‘ “Since the assessor admitted he had not given effect to the anticipated rapid decline in production on these leases, and the uncontradicted evidence showed that his valuations were predicated on constant, nondeclining production, contrary to the known and undisputed facts, the assessments in question must be held invalid. In those few instances where the assessor considered some decline in production he ignored the actual rate of decline in production so as to arrive at a higher valuation. Such assessments must also be held arbitrary and invalid because they failed to give effect to the actual facts then known. A method of valuation based solely on barrels of oil produced during part of a preceding year, without reference to other pertinent facts affecting market value, is ‘unquestionably void.’ Richardson v. State, 535 S.W.2d 508, at 510 (Tex).” ’ ” 230 Kan. at 757.
A reading of Angle would appear to uphold the usage of all available valuation information, whether post or prior to January 1, although such was not the primary issue in that case.
Ad valorem taxation of oil and gas leases differs from that of most other personal property in that the assessment is based on the present worth of the lease’s future production. The determination of the fair market value of a lease necessarily requires consideration of the expected future income potential of a lease, including the age and probable life of producing wells thereon. This methodology primarily arose out of the efforts of Dr. Charles F. Weinaug, a professor of petroleum engineering at the University of Kansas and a consultant to the Kansas Department of Revenue. This method was approved by our court in Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P.2d 791 (1968).
The appraisal difficulties created by the flush production of a new lease are similar to the difficulties encountered when a lease begins a production decline late in the year preceding appraisal. The Guide developed by the Division of Property Valuation treats both incidents similarly, as the failure to properly calculate and confirm the decline rate of a lease would inaccurately reflect its future production and result in an inaccurate valuation and assessment, just as the failure to account for flush production in a new well would.
It is obvious that production data pertaining to periods after January 1 is relevant to a determination of the property’s future productivity and earning potential as of January 1, particularly when there have been significant changes in production late in the year prior to assessment. The Guide recognizes the significance of this data for tax assessments in the oil and gas industry, and this method of assessment is a generally accepted appraisal practice in the field.
Kansas statutes permit factual information acquired after January 1 to be used to alter the valuation of property. K.S.A. 79-1412a(b) allows the Director of Property Valuation to change or modify the guides, schedules, or methodology for use in valuing property as late as June 30 of any year. Cooper’s testimony pointed out the oil price for valuation of leases has been adjusted on several occasions during the first half of the assessment year in order to better account for the future value of lease production. This is specifically allowed by K.S.A. 79-1412a(b) and is an example of using post-January I data and information to arrive at a fair and equitable valuation.
In addition, in K.S.A. 79-506, the legislature specifically adopted the Uniform Standards of Professional Appraisal Practice issued by the Appraisal Standards Board in effect on March 1, 1992. The amicus curiae points out that Appraisal Standard No. 3, adopted by the legislature, acknowledges that retrospective appraisals may be appropriate for property tax matters and permits appraisers to consider data subsequent to the effective date of appraisal to confirm trends which would have been considered by a buyer or seller as of the effective date in arriving at a retrospective value.
Although K.S.A. 79-503a states that fair market value is the amount a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market in a sale consummated on January 1, the application of this standard as required by the Court of Appeals myopically focuses on the single date involved and ignores the entire appraisal process, along with numerous other statutory provisions brought into play.
For example, the listing of property during the first quarter of a tax year and the availability of appeals as to valuation is allowed by K.S.A. 79-1448 “within 30 days subsequent to the date of mailing of the valuation notice required by K.S.A. 79-1460 and amendments thereto, for real property, and on or before May 15 for personal property.”
The provisions of K.S.A. 79-1460 relate to notification of taxpayers of the change in classification or appraisal valuation of property and state in applicable part:
“The county appraiser shall notify each taxpayer in the county annually on or before March 1 for real property and May 1 for personal property ... of the classification and appraised valuation of the taxpayer’s property ■. . . Such notice shall also contain a statement of the taxpayer’s right to appeal and the procedure to be followed in making such appeal.”
Real and personal property appraisals are to be completed by June 15 each year, K.S.A. 79-1466 and K.S.A. 79-1467, and the completed tax roll is to be certified by the appraiser to the county clerk. Under our ad valorem taxation scheme, the valuations are being reported, altered, tested, appealed from, and determined during essentially the first half of die tax year. An overview of the entire process and consideration of the numerous statutes makes it clear that all available appraisal information is to be utilized regardless of whether the data originated before, on, or after January 1 of the tax year.
The Court of Appeals erroneously granted the January 1 date of K.S.A. 79-301 exclusive status in the appraisal process and failed to give proper consideration to all of the otíier statutory provisions in the determination of the fair market value of the property. Allowing consideration of production data collected after January 1 when a lease suffers a decline late in the year conforms to generally accepted appraisal procedures in the oil and gas industry and is consistent widi the definition of fair market value of K.S.A. 79-503a, despite the apparent incongruity with the statement, that property is to be assessed as if a sale had been consummated on January 1.
Refusing to allow consideration of post-January 1 production data when assessing an oil or gas lease that has suffered a decline in production would be to ignore relevant and available factual information pertaining to the lease’s future productivity and income. This result is not required by K.S.A. 79-503a, is contrary to assessment principles embodied in the statutory scheme, and denies the expertise wielded by the Director of Properly Valuation in adopting the Guide.
BOTA did not erroneously interpret or apply the law in upholding the Guide’s endorsement of the use of post-January 1 production data. Such Guides have been lawfully used throughout the years, are not in violation of Kansas statutes or regulations, and are approved. The decision of the Court of Appeals to the contrary is reversed.
With the validity of the Guide being upheld, we then look to see if any of the requirements of K.S.A. 77-621(c) require reversal of the majority decision of the reconsidered BOTA decision. We find they do not. There is substantial competent evidence to justify BOTA’s decision, and none of the provisions of K.S.A. 77-621(c) require reversal. The trial court correctly upheld BOTA’s reconsidered opinion, and its decision is affirmed.
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|
The opinion of the court was delivered by
Nuss, J.:
Jaime Guzman appeals the district court’s denial of his motion for jail time credit for the 228 days that he spent under 24-hour-a-day house arrest while released on bond until sentencing. We transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The sole issue on appeal is whether the district court erred in denying Guzman’s motion. We hold the court did not err and affirm.
FACTS
Jaime Guzman was charged with aggravated robbeiy, two counts of aggravated assault on a law enforcement officer, and criminal possession of a firearm by a juvenile. At the preliminary hearing on May 24, 2000, the district court noted on the docket sheet: “Bond set at $150,000.00 EMD & 24 hour lock down.”
Approximately 1 week later, on June 2, the district court noted on the docket sheet, “[Defendant’s] bond modified to the following extent: $75,000.00 professional surety, EMD supervised by John Wells, house arrest 24 hr. a day lock down.” According to counsel at oral arguments, EMD stands for “electronic monitoring device.” See K.S.A. 21-4603b(b) (house arrest may include electronic mon itoring which requires a transmitter to be strapped to the defendant or inmate). Guzman entered into house arrest the next day.
On December 13, Guzman pled guilty to aggravated robbery and two counts of aggravated assault on a law enforcement officer.
On January 16, 2001, Guzman was sentenced to a total of 72 months’ confinement and was given jail credit for 37 days — 26 days in the Sedgwick County Juvenile Detention Facility from April 27 to May 24, 2000, and 11 days in the Sedgwick County jail from May 24 to June 3, 2000. After sentencing, he was removed from house arrest and placed with the Department of Corrections.
On April 21, 2003, Guzman filed a nunc pro tunc motion to award jail time credit for the time spent in house arrest after his stints in the county jail and the juvenile detention facility: 228 days — from June 3, 2000, through January 16, 2001.
After the State’s response, the district court overruled Guzman’s motion on May 16, 2003, writing, “Per State v. Parks, 27 Kan. App. 2d 544, [6 P.3d 444 (2000)] this is not ‘jail time;’ ” Guzman appeals that decision.
ANALYSIS
Issue: Did the district court err in denying Guzmans motion for jail time credit for time spent under 24-hour-a-day house arrest with electronic monitoringP
This appeal requires us to interpret K.S.A. 21-4614, a statute dealing with jail time credit. Interpretation of a statute is a question of law over which this court has unlimited review. State v. Denney, 278 Kan. 643, 649, 101 P.3d 1257 (2004).
K.S.A. 21-4614 was the version of the statute in effect during the period of Guzman’s house arrest. It stated:
“In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury or upon completion of an appeal, the judge, if he or she sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his or her parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case. In recording the commencing date of such sentence the date as specifically set forth by the court shall be used as the date of sentence and all good time allowances as are authorized by the Kansas adult authority are to be allowed on such sentence from such date as though the defendant were actually incarcerated in any of the institutions of the state correctional system. Such jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offense of which the defendant has been convicted.” (Emphasis added.)
Guzman argues that his house arrest, where he was electronically monitored and ordered to be “locked down” 24 hours a day, qualifies as incarceration under the statute. He argues that he was not free to come and go as he wished and that this degree of restriction on his freedom was virtually the same as confinement in a jail.
The State responds that Guzman’s house arrest falls far short of the incarceration contemplated by the statute. It argues that if the two were the same, then posting a bond to obtain release from jail for the purpose of entering house arrest is meaningless, i.e., no advantage has been gained by Guzman.
The limited case law supports the State’s position. In this court’s most recent treatment of the subject, State v. Palmer, 262 Kan. 745, 942 P.2d 19 (1997), we denied jail time credit for defendant Palmer’s sojourn in a community residential facility which was a condition of his appearance bond. We specifically stated: “K.S.A. 21-4614 does not authorize or require that time an individual resides in a private residential facility as a condition of preconviction appearance bond be credited as time spent Incarcerated’ pending disposition of a case.” 262 Kan. at 754. Three years later, in the case cited by the district court to deny Guzman’s motion, the Court of Appeals in State v. Parks, 27 Kan. App. 2d 544, 6 P.3d 444 (2000), denied jail time credit for Parks’ time spent under house arrest — with electronic monitoring — which was a condition of his appeal bond.
In both Palmer and Parks, jail time credit was denied when defendants’ entry into a facility after release from an actual jail was a condition of the bond which they posted. Guzman’s situation, entry into house arrest after release from jail, clearly falls within this category.
We acknowledge this court’s decision almost 30 years ago in State v. Mackley, 220 Kan. 518, 552 P.2d 628 (1976), where the court granted defendant Mackley 109 days of jail time credit for time spent not in a jail, but in a state hospital. Mackley, who was placed in the Ford County jail for allegedly, writing and delivering a worthless check, was sent to the Osawatomie State Hospital for 45 days for examination to determine his competency to stand trial. After changing his plea to not guilty by reason of insanity, he was then “held in custody at the Topeka State Hospital for 64 days for mental evaluations in connection with his defense.” 220 Kan. at 518.
The decision is easily distinguishable, however, as demonstrated by the following language:
“Under the circumstances of this case, the confinement at the state mental hospitals was tantamount to being in jail. The physical place of confinement is not important as the appellant technically continued to be in jail while held in custody at the hospitals. He was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail.” (Emphasis added.) State v. Mackley, 220 Kan. At 519.
Unlike Mackley, Guzman was free on bail, i.e., he had control over his place of custody inasmuch as he had a choice between (1) being released on bond to be in his own home under house arrest and (2) remaining in jail. As his counsel pointed out during oral arguments, the court was required to offer him bail. See Kan. Const. Bill of Rights, § 9. The district court simply imposed “conditions of release,” i.e., 24-hour-a-day house arrest with electronic monitoring, to reasonably assure Guzman’s appearance, as permitted by K.S.A. 22-2802.
In short, Guzman, choosing to be released on bail bond and accepting house arrest with 24-hour-a-day electronic monitoring as additional conditions of release, is not entitled to jail time credit for that period. More specifically, under K.S.A. 21-4614, time Guz man spent in house arrest is not time that he spent incarcerated pending the disposition of his case.
Affirmed.
Lockett, J., Retired, assigned. | [
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The opinion of the court was delivered by
Valentine, J.:
Twice this case has been brought to this court, and each time by defendant Eeisner. When here first, the case was dismissed because it was brought on petition, in error, and on a “case-made;” (see Reisner v. The State, 19 Kas. 479.) This time it is brought on appeal, and on a full transcript of the record of the proceedings in the ease in the court below. We shall now decide the case so far as it affects Eeisner upon its merits. Nearly all the facts necessary for an understanding of the case are reported in 19 Kas. 479, 480. It will there be found that Eeisner was the prosecuting witness in a certain case of assault-and-battery, wherein the state of Kansas was plaintiff, and William Moore was defendant; that Moore was found guilty in the justice’s court, but acquitted in the district court, and that the district court then assessed the costs of the case against Eeisner, the prosecuting witness. The only ground upon which said costs were assessed against Eeisner, as shown by the record was, “that the defendant had been tried, acquitted, and discharged.” We think the court below erred in assessing the costs against Eeisner. The only sections of the statute that we are aware of that authorize the assessment of costs against the prosecuting witness are the following: Section 326, of the code of criminal procedure, (Gen. Stat. 872;) section 18, of the act relating to jurisdiction and procedure before justices of the peace in cases of misdemeanor, (Gen. Stat. 881;) and section 13 of the act fixing the fees of certain officers and persons, (Gen. Stat. 481.) Section 326 is unquestionably applicable to district courts; but before a prosecuting witness can be taxed with costs under that section it must “appear to the court or jury trying the case, that the prosecution has been instituted without probable cause, and from malicious motives.” Now it did not so “appear to the court or jury” in the pres ent case. A jury tried the case, and they made no such finding. Section 18 applies to justices courts; but under it the justice cannot tax the costs against the prosecuting witness unless “the justice or jury trying the case shall state in the finding that the complaint was malicious or without probable cause.” This was not done in the justice’s court in this case, or in any other court. On the contrary, in the justice’s court the defendant Moore was found guilty, and sentenced to pay a fine and costs. Section 13 has no application to trials in the district court. (The State v. Campbell, 19 Kas. 483.) And it may be doubted whether it can apply to any costs, even in trials in justices court, except merely the justice’s fees. The section, so far as it can possibly be supposed to have any application to this case, reads as follows:
“Justices of the peace shall receive the following fees: [Here follows a list of justices’ fees and justices’ fees only;] provided, that * * * where any person, charged with an offense less than a felony, shall be discharged for want of sufficient evidence to convict, or bind over, the prosecuting witness shall be liable for costs.”
In this case in the justice’s court the defendant was not “ discharged for want of sufficient evidence to convict or bind over.” On the contrary, he was convicted, and judgment rendered against him itf the justice’s court. But suppose that the defendant had been discharged in the justice’s court: could the justice, under the proviso of section 13, have included more costs than his own fees mentioned in the body of the section ?
The judgment of the court below taxing the costs against the prosecuting witness, Eeisner, will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
An action was commenced before a justice of the peace in the name of John B. Baxter, to recover of plaintiff in error, defendant below, damages done by the cattle of the latter trespassing on certain specified premises. When the case was called for trial, plaintiff obtained leave to amend his bill of particulars by substituting the name of Wm. O. Baxter as plaintiff, and adding an allegation that the latter was the owner of the premises upon which the trespass was committed. Upon what showing this amendment was allowed, does not appear, the record simply reciting that the court was “satisfied by proof that said amendment should be allowed.” It would seem probable, from the form in which an entry of judgment was thereafter made, that John B. Baxter was the agent of Wm. O. Baxter; but this is a mere surmise. Of course, the question then, as presented to us, is one simply of power in the justice. Can a justice under any circumstances permit such an amendment? It may be remarked, that as no change was made in the allegation of the date of the trespass, or the premises upon which the trespass was committed, the cause of action was apparently the same, and the only change was that a different party was presented as entitled to recover for the damages done. It may be conceded that the circumstances are rare which will justify such an amendment; but that the power to make it exists, must we think also be conceded. The authorities seem to warrant this. In Tayon v. Laden, 33 Mo. 205, a mother was substi tuted for her daughter as plaintiff, it appearing that at the time suit was brought it was supposed that the mother was dead, and the suit had been brought iu the name of the daughter as heir. In Ansonia India Rubber Co. v. Wolf, 1 Handy, 236, the suit was brought in the name of A. for the use of B., and afterward B. was substituted as plaintiff. In Clawson v. Cone, 2 Handy, 67, the suit was brought in the name of the payee of the note, but it appearing that prior to its.commencement the note had been transferred, leave was given to substitute as plaintiff the real owner. In Price v. Wiley, 19 Texas, 142, suit was in the name of the agent, and afterward the principal was substituted as plaintiff. In Dixon v. Dixon, 19 Iowa, 512, the firm was substituted for a single member thereof as plaintiff. See also, Martel v. Somers, 26 Texas, 551; Smith v. Anderson, 39 Texas, 496; Hubler v. Pullen, 9 Ind. 273. Our own statute of amendments in terms authorizes the “adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect.” Gen. Stat. 655, § 139. See also, of our own decisions, Dewey v. McLain, 7 Kas. 126; Stevens v. Thompson, 5 Kas. 305; National Bank v. Tappan, 6 Kas. 456, 469; City of Atchison v. Twine, 9 Kas. 350. This disposes of really the only serious question in the case, for changing the name of the party plaintiff in the judgment was only correcting a clerical mistake, and making the judgment conform to the pleadings and verdict.
Upon the record as it stands we see no error, and the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an original action of mandamus in. this court, brought to compel the defendant, as probate judge of Douglas county, to entertain an information concerning-the alleged insanity of one Josephine McClellan. We shall notice but one 'matter, as that presents a complete defense to the action. It appears that, by proceedings in said probate court, in 1871, said Josephine McClellan had been once upon due inquiry adjudged insane, and committed to the asylum, from whence she had been thereafter discharged as one restored. In November 1876, an information was filed in said court, alleging the insanity of said Josephine, and praying an inquiry thereof. Upon this the defendant refused to summon any jury, and made this ruling and decision:
11 In the Matter of the Insanity of Josephine MeClellan.
“Now comes John Deskins, and files his complaint in writing, alleging that the said Josephine McClellan is a resident of Douglas county, and is a person <Jf unsound mind, and incapable of managing her affairs, and praying that an inquiry thereunto be had; and it appearing to the court from the records of said court, that the inquiry sought to be made in this matter by said informant has heretofore been entertained, acted upon, and legally adjudicated by the court, and that the said Josephine McClellan was on the 31st of October 1871 found by a jury impanneled according to law to be of unsound mind, and that she was by a decree of said court adjudged and adjudicated on said day to be of unsound mind, and it appearing to the court that she still remains legally of unsound mind under said adjudication, and that it would be improper and illegal for the court to entertain said application, and issue venire for jury thereon, the court therefore, for the reasons hereinbefore stated, refuses to entertain said application and institute the inquiry prayed for therein.”
Whereupon this proceeding has been instituted to compel defendant to entertain the application, and institute the inquiry. Can the action be maintained ? Clearly not. The defendant is a judicial officer. An application is made to him for judicial proceedings. He decides adversely to the application. It matters not whether his ruling be right, or wrong; whether the reasons given, be good, or bad. The matter is not subject to inquiry in a mandamus proceeding. The statute provides that “though it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.” (Gen. Stat., p. 766, § 688.) This is but a reenactment of the old law of mandamus. The writ never attempted to correct errors in the rulings of judicial officers, but only to compel them to make a ruling. Now it is as plain as language can make it, from this copy of the order of the probate court, that the judge examined the application and decided against it. Whether the reasons he gave were sufficient, or not, whether the ruling were right, or wrong, is, in mandamus, immaterial. Suppose the application were for an injunction, and the record showed that, “it appearing to the court that the matter presented in the petition had already been adjudicated, and therefore the injunction is refused” — would mandamus lie? And where is the difference ? This court would not in such a case examine the petition, decide it sufficient, and command the lower cou'rt to issue the injunction. No more can it in the present case examine the complaint, decide it sufficient, and direct the defendant to summon a jury and make the inquiry. If the defendant had refused to receive the application, or refused to examine it, or refused to decide whether to institute an inquiry or not, then mandamus might lie to compel him to make a decision. But even in that case, no order could be made declaring what his decision should be. It would be simply, that he examine the application, and make such order in the case as should seem to him right and legal. And if, after such an order, he should do just what he has done, as appears from this record, the writ would have completed its work.
Counsel for the state seem to look upon this as a mere ministerial duty cast upon the defendant, and that in instituting an inquiry into the matter of the alleged insanity of a party, he is performing no other or higher duty than the clerk of a court in issuing an order of attachment. We do not so consider it. The inquiry is a judicial proceeding. A question of fact is to be tried in his court, by a jury. He decides all questions of law arising in the case, whether as to the sufficiency of the papers, the competency of testimony, or the legality of the investigation. And surely, his decision upon the presentation of the application, that there is no ground for such an inquiry, is as much a judicial action, as his decision at the close of the trial that the verdict must be set aside. The statute under which this application was made, (Gen. Stat., p. 552, § 1,) reads, that on presentation of the in formation “the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury.” When this application was presented to the defendant he was satisfied that there was not' good cause for the exercise of his jurisdiction, and refused to institute the inquiry. His error, if error he made, cannot be corrected by mandamus.
While it would not be proper for us to decide .whether his ruling were right, or wrong, we may say that the question is one not free from doubt, and that it is far from certain that the defendant committed any error in the decision he made.
Judgment will be entered in favor of defendant for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action or proceeding under chapter 47 of the general statutes. When the cause was called for trial in the district court there were but ten jurors in attendance belonging to the regular panel, two having been previously excused by the court. The court had also previously issued a special venire for six additional jurors, and when the j ury were called to try the case,' two of the special jurors took their s'eats with the ten of the regular panel. The defendant objected to these two jurors because they had not been drawn and summoned according to law; which objection was overruled, and defendant excepted. The defendant then objected to any of said special panel, including the two jurors who had taken their seats as aforesaid, being called, whereupon the court (in effect sustaining such objection) directed the sheriff to fill up the jury from the bystanders; to which the defendant also objected, and asked the court to name the additional jurors. The court complied, with this request, and named a person present in the court room, and directed him to take his seat in the jury-box, to which defendant also objected, and asked that the court ascertain the names of jurors by reference to the assessment-rolls of the county, which request the court refused, and defendant excepted. Whereupon the court continued to call persons into the jury-box, who were present in the court-room, until both parties had exhausted their challenges. The defendant then challenged the array, (which challenge was overruled, and excepted to.) The challenge is as follows:
(.Title.) “And now comes the defendant and challenges the array in the above-entitled cause, for the reasons and upon the grounds that the jurors, Ira Winans, William Ward, William Walton, A. Powell, S. Powell, and H. C. Dewitt were not selected and were not drawn and summoned as required by law.”
These facts present all the questions to which our attention is directed. And they turn upon the construction of chapter 54 of the general statutes, as amended by ch. 104 of the laws of 1876. Section 5 of this last act provides, that—
“Whenever for any cause petit jurors shall not have been drawn and summoned to attend any court of record, or a sufficient number of qualified jurors shall not be in attendance at such court, the court shall order a sufficient number to be immediately drawn and summoned as herein provided.”
While section 6 reads:
“When there shall not be jurors enough present to form a panel in any cause, the court may direct the sheriff, or other officer, to summon a sufficient number of persons having the qualifications of jurors to complete such panel from the bystanders, or from among the neighboring citizens, and the officer shall summon the number so ordered; provided, that in case either party to a cause by himself or his attorney, shall so request it, it shall be the duty of the judge of such court to select such jurors and cause a venire to issue for the same, naming the jurors so selected therein as. hereinbefore provided.”
Now it is insisted that before a party can be compelled to go to trial he is entitled to a panel of at least twelve jurors, regu larly drawn and summoned; and that whenever such a panel is not in attendance the court must delay the proceedings until a number sufficient to complete the panel has been regularly drawn and summoned by the proper county officer, and that section 6 applies only when a full panel is in legal attendance, but . some of the jurors are temporarily absent. We cannot assent to this. Doubtless it is the'duty of the court to see that a regular .panel of jurors is in attendance, and that that panel should consist of at least twelve jurors, (that being the number requisite for a jury,) and of as many more as the court may deem necessary for the ordinary business of the term. But we cannot think that whenever the regular panel is reduced below the number of twelve, by legitimate and proper excuses of one or two jurors, the proceeding of the court must be stayed until the requisite machinery can be set in motion and made effective for drawing and summoning the deficient number. Except by special order of the judge, made at least thirty days before the term, only twelve jurors are to be summoned for the regular panel. (Gen. Stat., pp. 535, 537, §§ 9, 21, 22.) Can it ever be held that there was error in not making this special order? Must the judge necessarily anticipate the exigencies of the approaching term? and is it error if he fails to provide for a regular panel large enough for the demands of every case? Clearly not. It is matter which must in the nature of things be left to his discretion; and it is no ground of error in any particular case that a regular panel is not present sufficient to furnish a complete jury. Almost invariably, as every lawyer knows, some juror or jurors called into the box, whether on the regular panel or not, are disqualified to sit as jurors in the case on trial, or are challenged by the parties; so that if the court delays the trial to complete the regular panel, it will also in all probability be compelled to delay a second time for the service of a special venire. The law does not contemplate such repeated delays. While therefore a judge ought to see that a regular panel of at least twelve jurors is constantly in attendance, a failure to do so is no ground for reversing the judgment rendered in any case.
Secondly, the special venire issued was, at the time of its issue, proper, no request to the contrary having then been made. Yet it is immaterial whether it was proper or not, for when requested the court ignored this venire, and himself named the jurors. Having requested this course, the defendant cannot complain of the court for pursuing it. Having named the jurors, and secured their presence in the jury-box, the court committed no substantial error in not formally -issuing process to compel their attendance. A venire, if issued, operates only to compel the attendance of the jurors; and they took their seats in the box without process. It does not appear that any one thus selected was disqualified, and we know of no law or reason compelling the judge to send for the assessment-roll before naming the jurors. If any named by him is in fact disqualified, the inquiries of counsel will ascertain the fact, and he will be excused.
We see no error in the impanneling of this jury; and that being the only matter presented to our attention, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
There are several reasons in this case for the affirmance of the judgment of the court below. In the first instance, it is very doubtful, under the provisions of our statute relating to mortgages of real estate, whether a mortgagee, before foreclosure of his lien, can maintain any action for damages to the premises described in the mortgage, notwithstanding the insolvency of the mortgagor, and the insufficiency of the mortgaged premises to pay the claim against it. Vanderslice v. Knapp, ante, p. 647; Chick v. Willetts, 2 Kas. 385. But we need not pass upon that question. The record discloses the fact, that with the exception of the boiler and engine, for the value of which this action is brought, the premises would not pay the expense of a foreclosure; that said boiler and engine were worth at the time they were sold, only fifty dollars; that prior to such sale, the defendant in error purchased from Doniphan county a tax-certificate on the mortgaged premises, for $304.34, which said tax-certificate was during the pendency of the action in the court below presented to the county clerk of Doniphan county, and a tax deed obtained thereon to such defendant. Plaintiff in error has never attempted to pay these taxes, or redeem the property. The taxes, in any event, are a first lien on all the property embraced in the mortgage of plaintiff, and the lien continues until such taxes, and any penalty, charges, and interest which may have accrued, shall be paid by the owner, or other person liable to pay the same. The statute further provides, that where any real estate shall be sold on a foreclosure, the court shall order all taxes (and penalties thereon) against such lands to be discharged out of the proceeds of such sale. Opdyke v. Crawford, 19 Kas. 604. So if the defendant had not disturbed the mortgaged premises, on a sale under a foreclosure, the property, including the boiler and engine, if it brought its value, would have realized less than $100. Instead of bringing an action in foreclosure, the plaintiff attempts to obtain judgment for the injuries to the real estate by the removal of the engine and boiler, and, without reimbursing the defendant for the sums expended by him, (which sums are a first lien on the property under the tax-certificate,) claims the right to realize, in this way, all the value of the mortgaged premises, without being compelled to ,pay, or to have deducted from its value, the taxes due. The plaintiff’s claim cannot be maintained, and he was properly defeated. The facts show that Shonyo, under his tax-certificate, had a superior claim to the property sued for to that made by Alexander under his mortgage. The lien of the latter was subordinate to the lien of the former. It is immaterial whether the conclusions of the court below as to the law of the case, were erroneous or not. The facts warranted no judgment against the defendant, and no error was committed prejudicial to the plaintiff.
It is exceedingly strange that the taxes and charges so greatly exceeded the value of all the premises; and no reason is shown why defendant paid over $300 to obtain a tax title to property of less value than $100. But we take the findings of fact as they are presented, and base our opinion thereon.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is the following: At what date in the year 1873 were taxes, as taxes, and for the purposes of their payment, lawfully imposed upon any particular and specific piece of land then subject to taxation?
It seems that on the 16th of September 1873, the plaintiff and defendant entered into a written agreement for the sale and purchase of a certain particular and specific piece of land situated in Reno county. The land was sold on credit. The plaintiff was the vendor, and the defendant the vendee. The defendant was to take possession of the land, to have the use of the same, and to pay for the same in eleven annual payments, and then to receive the conveyance therefor. Said agreement also contained the following stipulation:
“The second party (the defendant) agrees * * * that he will regularly and seasonably pay all such taxes and assessments as may hereafter be lawfully imposed upon said premises.”
The taxes imposed on said land for that year, were, state taxes, county taxes, and such other taxes as the county commissioners were authorized to levy. The state taxes of that year were imposed, in one sense, upoh property in general, by the act of the legislature, approved 6 th March 1873, (laws of 1873, page 222,) which act fixed the rate per cent, at which state taxes should be.levied. The county taxes of that year, and indeed of prior and subsequent years, were imposed, in one sense, upon property in general by the act of the legislature of 1868, (Gen. Stat. 1019, et seq.,) which act provided for the assessment and collection of taxes. But evidently this kind of imposition of taxes was not the kind of imposition of taxes which the parties had in contemplation when they made said agreement. Lands were assessed that year subsequently to the third Wednesday of April, and prior to the 20th of June, but as of the 'first day of March; (laws of 1870, p. 245; Gen. Stat. 1032;) and the county commissioners on September 1st of that year determined the amount, and rate per cent., of all the county taxes, and of all the other taxes which they were required by law to levy; (Gen. Stat. 1044, §72.) This may perhaps be called an imposition of taxes upon property in general, yet it can hardly be called an imposition of taxes upon any specific property, or with reference to the payment of the taxes by any particular owner or owners. On or before the 20th of June, the assessor delivered the assessment-list to the county clerk. On the -first Monday in July, the county board met to equalize the assessments of the county. On the second Monday of August, the state board of equalization met to equalize the assessments of the state. On the first Monday of September, (as before stated,) the county commissioners fixed the rate and amount of taxes to be levied in their county. And after that time, and before the first day of November, the county clerk determined the amount of the taxes that each individual should pay on each piece of land, placed such amount on the tax-roll, and then, on the first day of November, delivered the tax-roll to the county treasurer; and then, for the first time, the taxes became due and payable; (Gen. Stat., pp. 1044,1045; laws of 1871, p. 328.) Then and not till then did the taxes become a lien on the real estate; (Gen. Stat. 1044, §74.) And then, as between any grantor and grantee, if the land was conveyed prior to November 1st, the grantee paid the taxes; but if the land was not conveyed until after November 1st, the grantor paid them. (Gen. Stat. 1062, § 140.) These statutes show that, for the purpose of the payment of taxes, the taxes were not imposed upon the land until November 1st. The taxes were not due until that time. They were not a lien upon the land until that time; and whoever owned the land at that time was required to.pay the taxes, unless there was some express contract to the contrary, even though the owner had received the title only the day before. The defendant claims that the word “impose,” as used in said agreement, means the same as the word “levy,” and he claims that the taxes, or at least all but the state taxes, were levied on the first Monday of September. Now the word “levy” has various meanings, as well as the word “impose.” It (the word levy) does not always, and indeed it very seldom means the fixing of the amount of the taxes to be raised, or the rate per cent, on the valuation of the taxable property. But it sometimes includes the collection of the taxes. Sec. 72 of the tax law of 1868 provides, that the county commissioners shall meet on the first Monday in September and do just what the defendant calls “levying” the taxes; and yet the next succeeding section of that law provides that “the county clerk, immediately after the first Monday in September, shall proceed to determine the sums to be levied upon each tract or lot of real property,” etc., (Gen. Stat. 1044, § 73,) showing that in the opinion of the legislature the taxes were still to be levied after the county commissioners had done all that they were required to do towards the levying, or the collection, or the imposition of the taxes. All the statutes in force in 1873 seem to contemplate that the taxes did not - stand against the land, and that they were not imposed upon •the land until they became due against the land — until they became a lien upon the land — until the owner of the land became liable therefor, which was on the first day of November, and not earlier. Until the first day of November they could hardly be said to be taxes. They could not have been paid, and possibly no record would have shown, and no officer would have known, the amount thereof. And the record which would finally have shown the amount thereof was still in the hands of the county clerk, who never had any author ity to collect or receive the taxes. It would seem that all the lax proceedings had by any officer or officers, prior to the delivery of the tax-roll by the county clerk to the county treasurer on the first day of November, were only incipient and inchoate proceedings in the imposition of the taxes, and that the taxes were finally imposed on the land only by the county clerk delivering to the county treasurer the tax-roll on the first day of November. With these views, we think the defendant in error, Jaques, should pay the taxes imposed on said land for the year 1873. If Jaques had been an absolute grantee, instead of a conditional vendee, he would have been liable under the statutes, (Gen. Stat. 1062, §140,) without any contract; and we think the contract in this case was intended to place the purchaser, so far as the payment of taxes was concerned, just in the same condition that he would have been if he had been an absolute grantee.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Action on a forfeited recognizance. Three defenses were interposed, of which one, and one only, seems, to us of any validity. It is claimed that the action was prematurely brought, having been commenced during the term at which the forfeiture was taken. Section 153 of ch. 82, Gen. Stat., reads:
“The prosecuting attorney may, at any time after the adjournment of the court, proceed by action against the bail upon the recognizance. Said action shall be governed by the rules of civil pleading, as far as applicable.”
Granting authority to do an act after a given time, impliedly prohibits the doing of the act before that time. Ex-pressio unius, exclusio alterius. No force is given to the words, “after the adjournment of the court,” if he may bring the action before the adjournment. And effect must be given if possible to all the terms of the legislative direction. Affirmative words, directing the doing of an act by a public officer at a given time, are often considered as merely directory, and the act sustained, though done at a later daté. But this is where the matter of time is really immaterial, and no one’s rights can be prejudiced by the delay. But where authority is given to do a certain act after the happening of some event, and the doing of the act prior to the event would operate to deprive a party of any rights, such party may insist that the act is prematurely done. Now section 149 of the same chafer provides, that, “the bail, at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open court, or to the sheriff, and, upon the payment of all costs, may thereupon be discharged from any further liability upon the recognizance.” The commencement of a suit creates costs. The earlier-a suit is commenced, the sooner it passes into judgment. And if, as in the case at bar, the amount be within the jurisdiction of a justice of the peace, and suit brought in that court, it may pass into judgment in three days. Thus it might happen, that at the same term, and within a few days after the forfeiture, and before the bail had time to pursue, arrest, and surrender his principal, final judgment might be rendered against him. The statute evidently contemplated that the bail should have some reasonable time in which to obtain and surrender his defaulting principal, before he is exposed to the costs of a suit, or deprived by judgment of a right to escape liability. This right he was deprived of in this case by the premature commencement of the action on the recognizance.
The judgment of thé district court will be reversed, and the case remanded with instructions to enter a judgment of dismissal of the action, on the ground of having been prematurely brought.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On 20th February 1867, the legislature-of Kansas passed an act providing among other things, “that any person planting an Osage orange- or hawthorn-fence, * * * and successfully growing and cultivating the same, * * * shall receive an annual bounty of two dollars for every forty rods so planted and cultivated, * * * the bounty to commence as soon as said fence will entirely resist cattle, and continue for eight years thereafter. * * * This section shall apply to all hedges already planted, but not yet come to maturity sufficient to turn stock, as well as to those hereafter planted.” (Laws of 1867, page 99, §2; Gen. Stat. 495, § 2.) On the 2d of March 1871, the legislature passed another act providing, “That section 2 of the above-named act (published as part of chapter 40 of the general statutes of 1868,) be so amended as to read as follows.” Then follows section 2, reenacted in full, and providing substantially the same as the above-quoted section, except at the end of the amended section there are two provisos, the first of which reads as follows: “Provided, that such bounty shall not be allowed in any county until the question has been decided by a vote of the people whether they desire such bounty or not.” The second proviso merely designates how the election shall be held to determine the question whether bounties shall be •given for growing Osage orange and hawthorn fences, or not. (See Laws of 1871, pages 211, 212.)
On 3d August 1875, Cyrenus Hudson, (plaintiff below and defendant in error,) presented to the board of county commissioners of Jefferson county his written claim in words and figures as follows:
“State op Kansas, Jeppeeson County, Aug. 3,1875. Jefferson County, to Cyrenus Hudson, Dr.:
“ 1875: Aug. 3d, for bounty on hedge for 1872, . . $35.00
“ “ “ “ “ “ “ 1873, . . 35.00
“ “' “ “ “ “ “ 1874, . . 35.00
“Total,..............$105.00.”
The county board examined this claim, and refused to allow it. Hudson then appealed to the district court, where the case was tried before the court without a jury, on the following agreed statement of facts, to-wit:
1.-The plaintiff had planted on his farm in Jefferson county, state of Kansas, 700 rods of hedge fence, and had successfully grown and cultivated the same. On the 1st day of March 1870 it entirely resisted cattle, and has been since that time kept up and in good repair, and during all that time until now has successfully resisted stock.
2.-The township assessor for the year 1870 adjudged the merits of said fence, and pronounced it sufficient, and entered •on his tax-roll a minute of the same opposite the description of the land on which the fence was planted.
3.-The township assessor for the years 1871, 1872, 1873, and 1874 respectively, each adjudged the merits of such fence, and pronounced it sufficient, and entered the necessary minute on the tax-roll for the proper year.
4.-On the 3d of January 1871, the plaintiff Hudson presented to the board of county commissioners a claim in writing in substantially the same form as the one on which this action is founded, if being for the sum of $35 for the bounty for the year 1870 on hedges under section 2 of an act entitled “An act to encourage the growing of hedges and the building of stone fences,” approved Feb. 20,1867. The board being satisfied that the provisions of said section had been complied with, issued a warrant for the amount claimed, which warrant was duly-presented to the county treasurer, and by him paid. In like manner, Hudson, on the 5th of December 1871, obtained and received $35 as the bounty' for that year. At a regular and legal meeting of said board held in December 1872, Mr. Hudson presented a like claim for the bounty for that year, but on an informal consultation with the members of the board they told Hudson that the claim would be rejected if he presented it. It was not pressed, nor was there any record made of the action of the board at that time. No further proceedings were had until August 3d 1875, when the claim on which this action is founded was by him presented to the board, and by the board duly rejected.
Upon this agreed statement of facts, the court found the following conclusions of law:
lst.-The plaintiff is not entitled to recover upon the first item of his account as presented to the board of county commissioners.
2d.-The plaintiff is entitled to recover from the defendant the sum of seventy dollars, and that amount is due him from said defendant upon the second and third items of his account as presented to the board of county commissioners.
The court rendered judgment, that the plaintiff have and recover of and from the defendant the sum of seventy dollars and his costs in said action. A motion for a new trial was made and overruled, and the county now brings the case to this court.
It will be perceived that there was no showing before the county board, nor even in the district court, that the plaintiff had ever planted or cultivated any “Osage orange, or hawthorn fence.” Nor is it shown of what material his hedge was composed. Nor is it shown when he planted such hedge, whether before or after the passage of the act of 20th February 1867. If before, and if not in pursuance of such act, then of course he cannot claim that the passage of the act, and the planting of the hedge, must be taken together as constituting a contract which could not be impaired by sub sequent- legislation. And possibly the words, “around any field,” found in said act of 20th February 1867, (and which we have not heretofore quoted,) may apply to the “Osage orange” and “hawthorn” fences there mentioned; and if so, then the plaintiff has failed in another respect to show that he is within the act, for he has failed to show that his hedge was “around any field.” Although the board was once satisfied that the plaintiff was within the act, yet it does not appear that he offered any better evidence then than now. There is no pretense that the people of Jefferson county ever voted to give bounties, as provided in section 2 of said act as it was amended in 1871. And therefore the plaintiff must claim under said section 2 as it originally stood, or not at all. But he certainly cannot claim under section 2 as it originally stood. At no time was that section anything more than a mere bounty act, a statute providing merely for the giving of bounties as an encouragement to those who would grow or erect the kinds of fences therein mentioned. It does not purport to be anything else. And the whole act shows that it was intended to be only such. Now no one can have a vested right in a mere bounty act, so as to prevent its repeal. He may have a vested right in the bounty already earned or accrued under such act. But he cannot have a vested right in anything further. (East Saginaw Manuf. Co. v. Saginaw, 19 Mich. 259; Salt Co. v. East Saginaw, 13 Wallace, 373.) In the present case, the plaintiff received his bounties up to 1872, and yet the only section of law under which he could claim a bounty was repealed in 1871. He claimed bounties in this case for the. years 1872, 1873, and 1874, and yet original section 2 of the act of 1867, under which he claimed, was repealed March 23d 1871, by the act of 2d March 1871. That is, the amended section 2 of the act of 1871 takes the place of the original section 2 of the act of 1867, and the original section 2 is, by virtue of section 16 of article 2 of the constitution, repealed. Therefore the plaintiff is not entitled to the bounties claimed in this case under such original section. And as we have before stated, there is no pre tense that the plaintiff is entitled to said bounties under the amended section, or under any other section of the statutes.
The judgment of the court below will therefore be reversed, and cause remanded with the order that judgment be rendered in favor of the defendant on the agreed statement of facts.
All the Justices concurring. | [
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Per Curiam:
Error is alleged in sustaining an order of attachment. The question is one of fact, and the testimony wholly by affidavit. It is enough to say upon this question of fact, that we think the court erred, and that there was not evidence sufficient to sustain the attachment.
The judgment will be reversed, and the case remanded with instructions to vacate and dissolve the attachment.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error, plaintiff below, filed its petition containing two causes of action. The first cause is thus stated:
“The plaintiff shows to the court, that the plaintiff was on the 1st of October 1867, and long previous thereto, and still is a railroad corporation, duly incorporated under the laws of Kansas, and owning and operating a railroad through the counties of Saline, Ellsworth, Russell, and Ellis, in Kansas. On or about the 1st of October 1867, the plaintiff engaged the defendant, and the defendant hired himself to the plaintiff as supervisor of the Smoky Hill division of its road, which division included all of said plaintiff’s railroad in said counties of Ellsworth, Russell and Ellis, and all of said railroad in the county of Saline, west of Brookville. The terms of such hiring were, that the plaintiff should pay the defend ant the monthly wages of $110, and that the defendant should discharge such duties as are usually incident to the position of supervisor of a railroad, and amongst other things that defendant should supervise the supply of wood for fuel for its locomotives on the district intrusted to defendant’s care, and should safely keep and watch such wood when delivered to plaintiff, and faithfully and honestly protect his employer, said company, against fraud in the supply of said wood, and the theft and embezzlement thereof, and should, when so requested by the superintendent of such division, honestly and skillfully measure all quantities of wood offered for sale or tendered or delivered to said company, and report to such superintendent the true and correct quantity thereof. The defendant entered upon his duties as supervisor as herein-before set forth, and was employed in that capacity, until about the month of January 1875, and was during such time duly paid the salary above mentioned. On or about the 15th of March 1869, one Evander Light tendered to said company a lot of wood for fuel, under the terms of a contract by said Light with the plaintiff, for the supply of such wood at the price of $7 per cord; and said defendant was by virtue of his employment as supervisor as aforesaid, directed by B. Marshal], the superintendent of said division, to measure and inspect said wood as tendered, and to accept delivery thereof on behalf of plaintiff, and to report to said superintendent the correct quantity and measurement of said wood. The wood so tendered by said Light was placed on the right-of-way of said company, and there was also at that time placed upon the right-of-way of said company a lot of wood already purchased by and belonging to said company, and in quantity 287 cords, or thereabouts. Defendant well knew that said 287 cords was the property of plaintiff, and not of said Evander Light, but nevertheless, in violation of his contract with plaintiff, he conspired with said Evander Light to rob and defraud said company by measuring and taking delivery of said wood already belonging to said company, as if delivered by said Light, and falsely reporting to the superintendent, B. Marshal], that said Light had delivered that quantity of wood to said company, when he had not done so. Said defendant was directed by said B. Marshall to inspect and measure the cord-wood so tendered by said Light, and accordingly in pursuance of such conspiracy to defraud, said defendant in willful and fraudulent violation of his duties as supervisor, reported to said superintendent that said Light had delivered to said company 287 cords of wood, when he had not in fact, as said defendant well knew, delivered any such wood at all, aud thereby enabled said Light to obtain from said company the price of the wood thus feigned to be sold and delivered, amounting to the sum of $2,000; and thus the defendant and said Light succeeded in robbing and defrauding the plaintiff of such sum, and for his share of the plunder arising from the fraud and robbery thus perpetrated by defendant and said Light, said defendant received from said Light one-half of said sum, being the sum of one thousand dollars. Plaintiff did not discover such fraud until the first day of December 1874.”
A motion, of which the following is a copy, was filed to make this petition more definite and certain:
{Title.) “Now comes the said named defendant, and moves the court to cause the said plaintiff to make its petition in this action more definite and certain, in this, to-wit:
“1st, To state the time when the defendant was directed by B. Marshall to inspect, measure and report to him, the wood mentioned in said petition.
“2d, To state when the wood was pretended to be measured by McCormick.
“ 3d, To state the time when the defendant reported to B. Marshall that Evander Light had 287 or 1,500 cords of wood, (or any other number of cords,) when in truth and in fact he had none on their right-of-way.
“ 4th, To state when it was that the defendant conspired with Evander Light to rob and defraud the plaintiff, and when it was that such robbery was accomplished.
“ 5th, To state how it was that the defendant defrauded or robbed the plaintiff.
“6th, To state when it was that defendant received any part of the money mentioned in the plaintiff’s petition.
“7th, To state how the defendant concealed the alleged fraud and fraudulent acts from the plaintiff, and of what it consisted.
“8th, To state when the concealment took place, and whether before or after the fraudulent acts are alleged to have been committed.
“9th, To state when the fraud was discovered.
“ 10th, To state how the fraud was discovered.
“11th, To state what acts of concealment were done by defendant subsequent to the alleged fraud, and before its alleged discovery.
“12th, To state when the alleged cause of action of the plaintiff against the defendant accrued.”
This motion was sustained; and the plaintiff electing to stand upon its petition, judgment was entered against it, to reverse which this petition in error has been filed.
Oaght the motion to have been sustained? We think not. Such a motion is in order when the precise nature of the charge is not apparent. (Civil code, §119, Gen. Stat. 652.) It is not the function of a petition to narrate the evidence, but to state the substantive facts upon which the cause of action rests. This petition states those facts, and states them so that the precise nature of the charge is clear. There is no mere general allegation of a conspiracy to defraud, by means of which the plaintiff sustained loss, but a specific statement of the employment of defendant, his duties, his compensation, the conspiracy with Light, the circumstances under which the opportunity for wrong arose, the acts of defendant in carrying out the wrong, and the profits made by him thereby, and from whom received, as well as the injury sustained by plaintiff. All this is stated with precision. Nothing could be made clearer. The petition also alleges the time on or about which Light tendered wood in fulfillment of his contract, the measuring and inspection of which was the wrong done by the defendant, and the time at which the wrong was discovered by the company. True, the time at which defendant did every specific act in pursuance of his agreement, is not separately alleged; but the time at which the whole transaction commenced, is stated, as precisely as matters of time like this need to be stated, that is, “ on or about;” and the circumstances of the transaction as detailed show that all the acts must have been in close proximity in point of time. And as an action for the wrong done at such a time would be apparently barred, it is distinctly averred that knowledge thereof did not come to the company till within a few days prior to the filing'of the petition.
It is insisted by counsel that under the old equity practice the circumstances under which the fraud was discovered, had to be stated, and that the same rule obtains to-day. (See as to the equity practice, Carr v. Hilton, 1 Curtis Ct. Ct. 390; Moore v. Greene, 2 Curtis Ct. Ct. 205.) Whatever may have been necessary when the chancellor refused to give relief against wrongs of long standing, unless the plaintiff disclosed due diligence in ascertaining his rights and discovering the fraud, and when therefore the conduct of the plaintiff was as important as that of the defendant in determining the right to present relief, we think no such rule obtains under our present practice. The statute aims to settle the question of limitation, and it is not left to the discretion of the chancellor. The action may be brought at any time within two years after discovery of the fraud. It may not be brought thereafter. The question is, When did the plaintiff discover the wrong? and not, Was he diligent in its investigation? The question is one of time, and not of conduct. The statute requires in a petition a concise statement of the facts constituting the cause of action; but the manner in which the fraud has been discovered is no part of or element in such cause of action. The cause of action is in the wrong done; and even the time of discovery is a matter affecting solely the statute of limitations, and that statute has regard to the time, and not to the manner of discovery.
We think the facts constituting the cause of action are fully stated; that the precise nature of the charge is -apparent, and that therefore the court erred in sustaining the motion.
The judgment will be reversed, and the case remanded with instructions to overrule the motion.
The case of the K. P. Railway Co. v. M. D. McCormick and Mary McCormick involves the same question; and the same ruling will be made in that.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in the case are briefly as follows: On the 14th of September 1875, one B. F. Leveridge, who then resided at Holden, Butler county, in this state, purchased of the plaintiffs in error a certain organ which was the subject-matter of the replevin suit in the court below, and Leveridge gave to his vendors a certain note and contract when he took possession of the organ. Such note is as follows:
$200. Holden, Sept. 14th, 1875.
One year after date, I promise to pay to the order of Hall, Waite & Co., two hundred dollars, on presentation of this note at First National Bank, Emporia, Kas., for value received, with.................., and ten per cent, fees if collected by suit. The drawers and indorsers severally waive presentment for payment, protest, and notice of protest and nonpayment of this note, without relief from valuation and appraisement laws.
This note is the property of Hall, Waite & Co., and cannot be assigned, indorsed, or a payment allowed on it, except by their representative in Emporia, Kas.; and no contract, verbal or written, made by any other agent or person in regard to it, differing from the import hereof, will be valid.
It is agreed and understood between the makers, indorsers, and payee of this note, that the American Organ, No. 68,672, for the use of which, to the maturity hereof, this note is given, is and shall remain the property of Hall, Waite & Co., until all notes executed by the undersigned for rent are paid in full, and is not to be removed from Holden without consent of said Hall, Waite & Co.; and that in default of payment, said organ shall be restored to them or their agent in good order, when demanded in writing by said Hall, Waite & Co. B. E. Leveridge.
Indorsed on the back, “Sept. 14th, 1875, Cr. by Cow, $35.00.”
Before the expiration of the year, and without the knowledge or consent of plaintiffs, Leveridge sold and delivered the organ to one James Geary, and left the state. James Geary removed it from Holden to Newton, and thereafter in the night-time to McPherson county, some thirty or thirty-five miles distant, and placed it in the possession of defendants, from whom it was taken by these replevin proceedings. Can this action be maintained ? Defendants say that by the very terms of the contract possession was to be restored only on default in payment, that no default had been made, and therefore the plaintiffs had no right of possession. Expressio unius, exolusio alterius. We do not so construe the contract; and in order to a proper understanding of its terms, the relative situation of the parties must be borne in mind. Leveridge was not the full and absolute owner except so far as he had granted away his rights by this contract, but on the other hand Hall, Waite & Co. were such owners. The title, and all the rights of control and' possession flowing from title, were theirs, except as in terms restricted by the contract. The only limitations upon their full control of the organ were those created by this instrument; and the only rights Leveridge had were those obtained by it. In this respect such a conditional sale differs from an absolute sale with a mortgage back. In such case the vendee has everything except as limited by the terms of the mortgage. Here he has nothing except as expressed in his contract. The inquiry therefore is, not whether Leveridge had agreed to forfeit his rights in case of a removal from Holden, but whether Hall, Waite & Co. had restricted such removal. Had they granted the right to use it anywhere? or only in Holden? If they had granted the right to use it, and said nothing about the place of user, doubtless the conditional vendee would have a right to move it from place to place. But they had the right to restrict its use to a single place. They exercised that right, and restricted the use to Holden. And finding it anywhere away from Holden, they had a right to resume that possession which is an incident to ownership, and the right which they had divested themselves of only for a particular place. Such a restriction as this is often absolutely essential to the protection of the vendor. Selling to an insolvent person, if such vendee has during the time for payment unlimited license to move it from place to place, the vendor’s right of possession on fail ure of .payment may become as valueless ak the note of the vendee. But whatever may have been their reasons, they had only granted away the right of possession at Holden. The vendee, and those claiming under him, having broken the contract, cannot now claim the benefit of it. Theirs was the first breach. They are here claiming rights under a contract which they have broken. We think they are concluded by its terms, and that this action can be maintained.
So far as the matter of demand is concerned, the proof was ample. Geary, under whom defendants claim, stated to one of the plaintiffs who had called upon him and told him of plaintiffs’ claim of ownership, “ that he had bought it of Leveridge and should keep it, and would not give it up.” After that there was no need of any formal demand of delivery.
The judgment of the district court will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellant in this appeal was convicted of driving while intoxicated, both in the police court of the city of Wichita and on appeal to the district court. He now appeals his conviction to this court. .
In this appeal, the appellant’s first contention is that the trial court erred in overruling his motion for a new trial for the reason that the evidence as to an alcometer test should have been excluded because the prosecution failed to show that the operator of the machine fully understood all of the workings thereof and did not know whether the machine was in proper condition to be used in making the test.
The prosecution introduced the testimony of James Maloney, a laboratory technician with the sheriff’s office of Sedgwick County. Mr. Maloney testified in general as to the workings of the alcometer, and that testimony need not be set out here. He also testified that the actual operation of such a machine was extremely simple; that if it were not operated correctly, it would not operate at all; that a period of fifteen minutes was sufficient in which to train a person to competently operate the machine since all that was necessary was to instruct him in the order of pushing certain buttons.
A member of the Wichita Police Department, George F. Blurton, testified as to the arrest of the defendant and as to administering the test to him on the alcometer, and that defendant acquiesced in taking the test. Blurton testified that he had been instructed in the art of operating the machine by Lieutenant Clyde Bevis, a graduate chemist and laboratory technician. There was also testimony that Lieutenant Bevis prepared the vials to be used on the machine. Counsel for the defendant in cross-examining Blurton asked several questions as to the chemical analysis of the liquid in the vial in the machine, as to when the machine had been last examined, and as to other intricacies of the machine. The witness quite frankly admitted that he could not answer these questions.
The defendant then moved to strike out the evidence in regard to the test made upon the alcometer which motion was overruled by the court. We believe that under all the circumstances the court did not err. (City of Seattle v. Bryan [Wash. 1958], 333 P. 2d 680; Toms v. State, 95 Okla. Cr. 60, 239 P. 2d 812.)
The defendant cites State v. Lowry, 163 Kan. 622, 185 P. 2d 147, and argues that the test made upon the alcometer is similar to a lie detector test. We cannot agree. The test of the per cent of alcohol in the blood of an individual as showing the degree of intoxication has been recognized by statute in this state and in many, if not most, other jurisdictions (G. S. 1957 Supp. 8-1001 et seq.).
It. may be assumed that the defendant argued the above matters as to the credibility of the test to the jury.
The test made on the defendant showed a reading of 0.21. Under the provisions of G. S. 1957 Supp. 8-1005, a reading of 0.15 is made to creaté a presumption that the defendant was under the influence of intoxicating liquor and the court so instructed the jury. The defendant did not object to the instruction.
It may be noted that there was other evidence from Blurton and another officer as to the fact that the smell of alcohol could be detected on the defendant’s breath; that he was somewhat slow in his speech and failed to complete his sentences; that he went to sleep on the way to the station in the police car; that he was not steady in his walk, and in other particulars indicated that he was intoxicated. It is true that these witnesses were not asked to state their opinion as to whether defendant was intoxicated, but they were interrogated as to the facts and actions of the defendant, leaving to the jury the right to form its own opinion as to whether or not defendant was intoxicated.
The only other assignment of error is that the trial court erred in overruling the defendant’s demurrer to the evidence of the prosecution. The defendant did not introduce any evidence on his own behalf, but rested on his demurrer. As shown above, there was ample evidence of intoxication. The only question might be whether it was definitely shown that the defendant had been driving after he became intoxicated.
Officer Blurton testified as to discovering defendant’s car standing near the intersection of Mount Vernon and Broadway Streets in the city of Wichita a few minutes after 6:00 a. m.; that the car had been rather severely damaged on the front right side; that there was a trail of water and oil leading from the car back to ¿ utility pole some two hundred feet north of the car. It was evident that the car had collided with the utility pole. He met the defendant after he had returned from looking at the pole. The officer asked defendant if he owned the Plymouth car and if he had been driving the car and he stated that he had. Under the above evidence, it would appear that the court did not err in submitting the case to the jury.
The judgment of the district court should be and it is hereby affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This appeal, authorized by G. S. 1949, 44-710b (c), is by the Labor Commissioner of the State of Kansas from a judgment of the district court of Montgomery County, Kansas, which reversed a decision of the State Labor Commissioner holding D. L. Warburton, d/b/a Deluxe Cab Company, to be a liable employer under the Kansas Employment Security Law. (G. S. 1949, 44-701, et seq., as amended.)
Basically two questions are presented: (1) Whether the relationship of employer and employee exists between the appellee, D. L. Warburton, and the drivers of his taxicabs within the meaning of the provisions of G. S. 1957 Supp., 44-703(i) and (o) of the Employment Security Law, and (2) whether the Labor Commissioner may issue an order establishing the appellee’s liability for contributions as a contributing employer under the Kansas Employment Security Law retroactively.
The facts disclosed by the record, except for minor factual differences, are the same as those which confronted the court in Read v. Warkentin, Commissioner, 185 Kan. 286, 341 P. 2d 980. In fact, counsel for the respective parties in the Read case (No. 41,438) and in the instant case (No. 41,443) joined in a motion to consolidate the two cases in this court. The motion to consolidate was denied on May 1, 1959.' In such motion counsel for the respective parties disclosed “that all except one of the major issues involved in each of said cases are the same.” Question No. 1 above was presented in the Read case but not question No. 2.
It is therefore unnecessary in the instant case to present the facts or review the law regarding question No. 1. The answer to this question is controlled by Read v. Warkentin, Commissioner, supra. Concerning this question we hold on the basis of the .factual situation presented by the record herein, which is identical in all material respects to those presented in the Read case, that an employer-employee relationship existed between Warburton and the drivers of his taxicabs, and as a result Warburton is a liable employer under the Kansas Employment Security Law. ■ Therefore, the conclusion of the trial court that the involved, taxicab drivers were independent contractors is erroneous.
Only the facts necessary to dispose of the second question will be related.
D. L. Warburton lived in Coffeyville, Kansas, and owned six automobiles which were driven as taxicabs in the city of Coffeyville. When Warburton started his operation in 1952, he made contributions under the Employment Security Law of the State of Kansas as a liable employer through voluntary election. He thus automatically became a liable employer for a minimum of two calendar years. (G. S. 1957 Supp., 44-711 [a] and [c][1].)
In the process of administering the Employment Security Law contributing employers are called upon periodically by field representatives of the Employment Security Division. These field representatives make reports to the Topeka office. On June 22, 1953, A. L. Douglas, a field representative of the Employment Security Division, made a field visit to Mr. Warburton’s place of business in Coffeyville. In his report to the Security Division he said in- his comments and summary: “Warburton has cut his regular employment to 3 with an occasional extra helper.”
Almost a year later, after another visit with Warburton, another field representative in his written report to the Employment Security Division stated: “Mr. Warburton desires to terminate his liability effective Dec. 31, 1953. I furnished him with KUC 136. He promised to have KUC 136 in our office by June 1.” ,
The application (on form KUC 136 provided by the Employment Security Division) for termination of coverage was completed and subscribed and sworn to by Warburton on May 26, 1954, and filed with the then Labor Commissioner, P. G. Baird. In this application Warburton stated that during each calendar week during the calendar year 1953 the greatest number of employees he had in any single day in each of said weeks was three. The instructions on the reverse side of the application form supplied to Warburton by the Labor Commissioner include the following statement: “After the application has been considered by this agency and the employment verified, one copy showing the Labor Commissioner’s decision will be returned to you.” (Emphasis added.)
On June 8, 1954, Commissioner Baird passed on the application and issued his order terminating the liability of Warburton as a contributing employer. The notice of termination stated, among other things: “This action terminates your legal liability for contributions on all wages paid in Kansas.” The order stated that the application had been “Approved in accordance with Section 44-711(b) of the Kansas Employment Security Law.” Thus, as of December 31,1953, the effective termination date, Warburton ceased to make contributions as a liable employer under the Kansas Employment Security Law. He continued his operations in the same location in Coffey-ville, under the same name and in exactly the same manner, for the years 1954, 1955 and 1956. After Commissioner Baird had terminated Warburton s liability as a contributing employee, Warburton then communicated with the Internal Revenue Service in Wichita, Kansas, to determine whether he was required to withhold and remit federal income tax on the taxicab drivers, and whether he was required to pay federal unemployment tax on the cab drivers. On November 22, 1955, Lynn R. Brodrick, District Director, advised Warburton in writing that the Internal Revenue Service did not consider him a common law employer of taxicab drivers, and advised Warburton he had no liability to withhold income taxes or pay federal unemployment tax on the taxicab drivers.
By act of the 1955 session of the legislature (Laws of 1955, Ch. 251, § 1, now appearing as G. S. 1957 Supp., 44-703 [h]) coverage on employers of eight or more individuals was expanded to coverage on employers of four or more. As a result of this amendment the Kansas Employment Security Division made a routine check of employers who might be liable under the act as amended. Thus, on or about December 19, 1956, a routine inspection at Warburton’s place of business was made for the year 1956 by Duane C. Koll, a field representative of the Kansas Employment Security Division to whom Warburton’s file had been assigned. As a result of this inspection Warburton and his attorney were contacted by Mr. Koll about December 19, 1956, who contended that Warburton’s taxicab drivers were his employees, thus making him liable as a contributing employer under the Kansas Employment Security Law. Warburton’s records were complete and well kept. Mr. Koll admitted no one made any effort to misrepresent any facts to him or withhold information from him and that the problem was the correct legal conclusion to be drawn from the facts. It was conceded by Warburton that if the taxicab drivers were his employees he had twenty weeks in which he had employed eight or more individuals for the year 1953 and subsequent years.
After two extended hearings in Topeka, Kansas, the then Commissioner, R. L. Warkentin, on March 16, 1957, issued a “Notice of Establishment of Employer Account,” whereby Warburton s liability for contributions as a contributing employer under the Kansas Employment Security Law was “re-established, effective January 1, 1954.” By this order, retroactive to and including the year 1954, several thousand dollars in delinquent contributions with interest were assessed against Warburton.
The above order was appealed to the district court of Montgomery County, Kansas, which on October 20, 1958, set aside the order and entered judgment in favor of Warburton, after concluding that the relationship between Warburton and the taxicab drivers was not one of employment or master and servant but one of independent contract.
Since the filing of this appeal in the Supreme Court Harold L. Smith has succeeded R. L. Warkentin as State Labor Commissioner and his name has been substituted as party appellant in this action.
The appellant takes the position that the appellee Warburton made no attempt to obtain a ruling from the Commissioner on a true statement of facts, relative to his termination of liability under the Employment Security Act, until the matter was investigated by the appellant in 1957. It is argued by the appellant that whether the taxicab drivers under appellee’s rental agreement were in employment was a highly controversial matter, and Commissioner Baird approved the termination of appellee’s coverage effective December 31, 1953, on the basis of appellee’s sworn statement in the application stating that he had only three employees.
The record does not support the appellant on this point. There is no evidence whatever that the appellee made a fraudulent statement to the Commissioner relative to his termination of liability under the Employment Security Act.
G. S. 1949, 44-711(b), provides:
“Termination of contributions. Except as otherwise provided in subsection (c) of this section, an employing unit shall cease to be an employer subject to this act only as of the 1st day of January of any calendar year, if it files with the commissioner, prior to the first day of March of such calendar year, a written application for termination of coverage, and the commissioner finds that there were no twenty different days, each day being in a different calendar week within the preceding calendar year within which such employing unit employed eight or more individuals in employment subject to this act; . . .” (Emphasis added.)
Appellee’s application for termination of liability for contributions under the act was made on a form furnished by a field representative of the Employment Security Division. It must be assumed that Commissioner Raird followed the. statute and made a finding that Warburton did not have sufficient employees for a sufficient number of weeks to bring him within the act. Furthermore, the appellee was entitled to assume that Commissioner Raird followed the instructions set forth on his form to the effect that he “verified the employment” which appellee reported to him. The record discloses that the field representatives who had previously called on the appellee were familiar with his taxicab business by reason of on-the-spot investigations.
Field representative Koll was conscious, of the position in which appellee had been placed by the retroactive order when he recommended waiver of interest in his letter to his superior on February 28, 1957, in which he said, among other things:
“In view of the fact that D. L. Warburton may have been poorly .advised by this agency regarding the status of the cab drivers during the year of 1954, I wish to make this recommendation . . .”
Field representative Koll also recognized that the appellee had disclosed all the facts and that the Employment Security Division knew all the facts when it held he was not liable as a contributing employer. In his report to his superior on December 19, 1956, he stated, among other things:
“. . . Mr. Warburton was very co-operative but was unable to fathom such beliefs as mine in that he had successfully convinced the Social Security Adm. and this agency in 1954 that his drivers .were independent contractors.”
The district court of Montgomery County, Kansas, disposed of the contention that appellee had concealed facts by its specific finding that the claim of concealment was not supported by the evidence. After making the above finding the trial court in its memorandum opinion went on to say:
“. . . If equity and fair play have any place in our jurisprudence, the court feels it should apply here. Certainly a citizen and taxpayer who has been relieved in accordance with statute of a tax burden no longer applicable by the order of duly constituted authority in the manner prescribed by law by appropriate order duly entered, certainly he should not be subjected to an ex parte order of a successor official years later holding the former order was wrong and void, although the operation was substantially the same', and subjecting the taxpayer to the tax retroactively for all the intervening years. There could be no more harsh method of wiping out a man’s business, although he had been led to believe all the time he was conducting his affairs lawfully. If such a reversal can be made 3 years later, why not 20 or 30 years later?”
The appellee contends that the order of Commissioner Baird dated June 8, 1954, was unappealed from and became'final ten days after it was mailed on June 12, 1954, and a successor commissioner did not have the authority by law to change the order, retroactively, on March 16, 1957. The provision of the statute relied upon is G. S. 1949, 44-709 (h), which reads:
“Court review. Any decision of the commissioner in the absence of judicial review therefrom as herein provided shall become final ten days after the date' of mailing thereof, and judicial review thereof shall be permitted only after any party claiming to be aggrieved thereby has exhausted his remedies before the commissioner as provided by this act . . .”
This section of the statute does not support the appellee. It applies only to a party claiming to be aggrieved by a decision of the Commissioner. It contemplates judicial review of the Commissioners decision only by the party aggrieved after he has exhausted his remedies before the Commissioner.
The position taken by the appellee is that the order of termination was final and the Commissioner thereafter had no power of reconsideration, rehearing or modification of the order under the act. We do not so construe the Employment Security Act. .
The following is stated in 42 Am. Jur., Public Administrative Law, § 174, pp. 535, 536 and 537:
“■ • • it is often held that administrative tribunals, in the absence of statute, have no power to reconsider, grant a rehearing on, or set aside, their final determinations. The power of administrative authorities to reconsider or modify their own determinations may exist by reason of express provision of statute, or its existence may be inferred from a statutory provision. Lacking this, whether the power exists depends upon an interpretation of the entire statute and policy applicable to the particular administrative agency. Administrative determinations are subject to reconsideration and change where they have not passed beyond the control of the administrative authorities, as where the determinations are not final, but interlocutory, or where the powers and jurisdiction of the administrative authorities are continuing in nature
Construing the entire Employment Security Act as amended, taking particular note of the declaration of state public policy (G. S. 1949, 44-702), the provisions for. contributions which accrue and become payable by each employer for each calendar year (G. S. 1957 Supp., 44-710), the obligations, imposed upon the Commissioner to classify employers in accordance with their actual experi ence in the payment of contributions for each calendar year (G. S. 1957 Supp., 44-710a), and the manner in which contributions may be terminated (G. S. 1957 Supp., 44-711), we do not hesitate to state it was the intention of the legislature that the powers and jurisdiction of the State Labor Commissioner be continuing in nature.
The administrative tribunal having continuing jurisdiction over its orders may not run counter to other provisions of the statute in modifying or changing its orders; neither may such changes be arbitrary or groundless. The primary purpose of a continuing jurisdiction is to give an administrative tribunal power to modify or change a decision or order to meet changed conditions.
Administrative bodies are not ordinarily bound by their prior determinations or the principles or policies on which they are based. The doctrine of res judicata does not ordinarily apply to decisions of administrative tribunals. (Pearson v. Williams, 202 U. S. 281, 26 S. Ct. 608, 50 L. Ed. 1029.) It is intrinsically a judicial doctrine not to be applied unwittingly to legislative or executive activities which administrative bodies are sometimes empowered to exercise in addition to the judicial one. There is present in administrative law an aspect of discretion which is absent in the strict application of res judicata in the judicial system, and it is this difference which permits agencies to do again what courts may not, and which therefore requires examination of particular cases. (See, Forkosch, Administrative Law, § 308, p. 594; Parker, Administrative Law [1952], p. 245, et seq.; Gregory, Administrative Decisions as Res Judicata, [1941], 29 Cal. L. Rev. 741; Schopflocher, The Doctrine of Res Judicata in Administrative Law, 1942 Wis. L. Rev. 198; and Notes: 4 Rutgers L. Rev. 706 [1950]; 49 Colum. L. Rev. 640 [1949]; and 49 Yale L. J. 1250 [1940].)
Stare decisis is not, like the rule of res judicata, a universal, inexorable command. The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided. (Brandéis, J., dissenting, in Burnet v. Coronado Oil & Gas Co., [1932], 285 U. S. 393, 406, 52 S. Ct. 443, 76 L. Ed. 815.) The doctrine of stare decisis is a strong factor in building up internal administrative law, and in influencing the judiciary in its reviews of the administrative determinations. But an administrative agency may refuse to follow its prior ruling when its action is not oppressive or it does not act arbitrarily, unreasonably, or capriciously. (Labor Board v. Seven-Up Co., [1953], 344 U. S. ,344, 73 S. Ct. 287, 97 L. Ed. 377; Lesavoy Foundation v. Commissioner of Internal Rev., [1956, C. C. A. 3], 238 F. 2d 589; National Labor Relations Bd. v. Guy F. Atkinson Co., [1952, C. C. A. 9], 195 F. 2d 141; and see, Forkosch, Administrative Law, § 307, p. 591.) Thus, it has been said, the doctrine of stare decisis is not generally applicable to decisions of administrative tribunals. (See 73 C. J. S., Public Administrative Bodies and Procedure, § 148, p. 482.)
In the instant case, simply stated, the only question before the Commissioner was the legal conclusion to be drawn from the facts which were not in dispute. That is, was the relationship of Warburton to the taxicab drivers one of employment or one of independent contract?
An administrative determination in which is embedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge. (Federal Comm’n v. Broadcasting Co., 309 U. S. 134, 60 S. Ct. 437, 84 L. Ed. 656.)
Certainly an administrative agency, charged with the protection of the public interest, is not precluded from taking appropriate action to that end because of mistaken action on its part in the past. (National Labor Relations Board v. Baltimore T. Co., [C. C. A. 4], 140 F. 2d 51, 55. Certiorari denied Baltimore Transit Co. et al. v. National Labor Relations Board, 321 U. S. 795, 64 S. Ct. 848, 88 L. Ed. 1084.)
On the basis of our construction of the Kansas Employment Security Act and after fully considering the foregoing authorities, we think the law is clear that the Commissioner under the Kansas Employment Security Act may reconsider a previous order based upon an erroneous conclusion of law and change it. But it is quite a different matter to say, having once changed the legal conclusion to be drawn from the facts, the Commissioner may arbitrarily and without limit have the effect of such change go back over previous years during which the appellee operated under the previous order made by a previous Commissioner. Upon all the facts, conditions and circumstances presented by the record in the instant case we regard the retroactive feature of the Commissioner’s order issued on March 16, 1957, to be oppressive action. It is arbitrary, unreasonable and capricious.
This was a small taxicab business in which the profits were small. The evidence discloses that the cost of operating the taxicabs was fifteen cents per mile; that the proficiency of the taxicab drivers varied all the way from unprofitable operation to twenty-five cents per mile gross income. The profitableness varied not only with the drivers but also with the weather and the seasons of the year. It is apparent from the record the retroactive assessment against the appellee could have the effect of wiping out his business.
Our previous discussion of the facts makes it clear that the appellee himself would not be estopped from relying on the order of Commissioner Baird in good faith. The appellee did not conceal the facts or make any misrepresentation or otherwise commit a fraud. We think it apparent that the practical operation of the changed decision of Commissioner Warkentin in 1957, when incorporated in the order now before us,' is to work hardship upon the appellee altogether out of proportion to the public ends to be accomplished. The inequity of such an impact of retroactive action upon an employer innocent of any conscious violation of the Employment Security Law, and who was unable to know, when he acted, that he was guilty of any conduct of which the Commissioner would take cognizance, is manifest. It is the sort of. thing our system of law abhors.
A case closely analogous to the situation presented herein is found in Lesavoy Foundation v. Commissioner of Internal Rev., supra, (1956, C. C. A. 3), where the Commissioner of Internal Revenue changed a ruling with respect to a taxpayer and applied it retroactively. It was there held that the Commissioner could not change retroactively a ruling of exemption, where the foundation had committed no fraud and made no misstatement, where the question of exemption involved “at least an arguable question of law,” and where the effect of the retroactive change would have been to impose upon the foundation (claiming charitable exemption) a tax bill “so large as to wipe it out of existence.” The Commissioner was said to have acted arbitrarily and exceeded the bounds of permissible discretion when he revoked the exemption granted to the foundation and gave it retroactive effect.
Although somewhat different in type, another federal case involving the same principle is National Labor Relations Bd. v. Guy F. Atkinson Co., supra, (1952, C. C. A. 9). There the National Labor Relations Board changed its policy by extending its juris diction after the company had discharged a worker at the demand of a union under a closed shop agreement. - The board held the discharge of such worker was • an unfair labor practice and gave effect to the policy change retroactively for a number of years. The court there held the retroactive action of the board in holding the employer guilty of an unfair labor practice for discharging an employee who failed to maintain his membership in the union, was arbitrary, capricious and an abuse of discretion. It therefore denied enforcement of the board’s order insofar as it had retroactive effect but excepted from its holding those portions of the order which operated prospectively.
It may be noted that the scope of review in the above federal cases was defined by statute (Title 5, U. S. C., § 1009[e]), the pertinent portion of which provided that the reviewing court shall hold unlawful and set aside agency action, findings and conclusions found to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
The legal concept for which the above federal cases are cited has not been adequately portrayed by the foregoing summaries of such cases. The reader is referred to these opinions for a full discussion of the question.
While Kansas does not have an administrative procedure act, it has been held that our courts have jurisdiction over special tribunals established by statute, even though no'right of appeal has been conferred by statute from the decisions of such special tribunals. The rules concerning ministerial acts of special tribunals established by statute and of public officers are well stated in Allen v. Burrow, 69 Kan. 812, 77 Pac. 555, as follows:
It has often been said of special tribunals established by statute to pass on matters expressly committed to them that their jurisdiction is exclusive and their determinations final, and that courts will not review their conclusions nor inquire by what method they were reached, but always with an express or implied reservation that the statement holds good only where the action of such tribunal is characterized by good faith, and is free from fraud, corruption, and oppression . . . No rule is better settled than that courts will not interfere with public officers in the discharge of any duty involving the exercise of judgment or discretion, but this rule presupposes the existence of good faith, and relates to acts done under the guidance of opinions honestly formed, however mistaken in fact; it has no application to acts done under the influence of a corrupt motive. Even arbitrary and capricious conduct, amounting to an abuse of discretion, will justify mandamus to compel a proper performance of duty, upon the theory that there has been, in fact, no real exercise of judgment . . .” (Emphasis added.) (pp. 820, 821.)
The foregoing rules stated in Allen v. Burrow, supra, were approved in Anderson v. Hedges, 160 Kan. 665, 165 P. 2d 425, where many authorities on this subject are reviewed (reference is made thereto). (See Gray v. Jenkins, 183 Kan. 251, 326 P. 2d 319.)
If our courts are open to hear meritorious complaints against illegal or oppressive acts of nonjudicial public boards and officials by invoking some extraordinary legal remedy recognized in our practice, where no statute confers a right of appeal, (State, ex. rel., v. Mohler, 98 Kan. 465, 158 Pac. 408) a fortiori, such action or conduct is subject to review by our courts where a statutory right of appeal exists, as here.
The situation presented by the facts in the instant case is sometimes handled by courts on the theory of equitable estoppel. But courts in the past have usually held the doctrine of equitable estoppel does not apply to the government. The erosion of the doctrine of governmental immunity is clearly underway, but among the remnants of sovereign immunity is the notion, which still prevails in many decisions, that estoppel cannot run against the government. For an interesting discussion of this topic see the work of Professor Kenneth Culp Davis, Administrative Law Treatise, Volume 2, Sections 17.01 to 17.09 inclusive, pages 491 to 544 inclusive. Some courts have categorically stated that the doctrine of equitable estoppel will be applied against governmental bodies where justice and right require it. (Denver v. Stackhouse, [1957], 135 Colo. 289, 310 P. 2d 296; and Sawyer v. City of San Diego, [1956], 138 C. A. 2d 652, 662, 292 P. 2d 233, 239.)
Briefing by counsel for the respective parties on the point of equitable estoppel has been inadequate, and upon the facts, conditions and circumstances presented by this record we find it unnecessary to delve into the question at this time. (See, West’s Kansas Digest, Estoppel, § 62.)
What has heretofore been said concerning the order of Commissioner Warkentin issued on March 16, 1957, has no application to the order establishing the appellee’s account insofar as it has prospective operation. The agency through its field representative first made known to the appellee the fact that it was claiming contributions under the Employment Security Law in the year 1956. This was notice to the appellee, and even though the ultimate determination as a result of investigation was not made by an order of Commissioner Warkentin until March 16, 1957, the appellee having been apprised of the claim in the year 1956 is subject to the order of the Commissioner for the year 1956 and subsequent years. (See G. S. 1949, 44-711 [a].)
■ The judgment of the trial court is affirmed insofar as it relates to the years 1954 and 1955, and is reversed insofar as it relates to the year 1956 and subsequent years. | [
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|
The opinion of the court was delivered by
Parker, C. J.;
This is a garnishment proceeding arising out of a negligence action which resulted in a verdict and judgment in the district court of Jefferson County against the defendant Charles Pence in the amount of $29,450.00. The judgment was affirmed in this court on appeal and is reported in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, where all facts necessary to a proper understanding of that decision are set forth at length and will not be repeated.
Subsequent salient facts giving rise to the present appeal may be stated thus:
After affirmance of the judgment in Domann v. Pence, supra, the plaintiff filed an affidavit for garnishment after judgment in the district court of Jefferson County in the same action wherein, after reciting the judgment and issuance of an execution thereon, alleged to have been returned wholly unsatisfied, she stated that plaintiff had good reason to and did believe that the Farmers Mutual Automobile Insurance Company, a corporation, of Madison, Wisconsin, with authority to do business in the state of Kansas, had property of the defendant Pence in its possession or under its control and was indebted to such defendant in the sum of $30,000.00 by reason of certain policies of insurance, describing them; and asked for service of garnishment summons on such company requiring it to answer concerning such property and indebtedness.
Following service of garnishment summons, and on December 5, 1958, the company filed an answer in the form of an affidavit as authorized by G. S. 1949, 60-946. For all purposes here pertinent it may be said such answer sets forth the judgment; admits that at the time of the rendition thereof the company had a policy of insurance on the automobile involved in the action, wherein and whereby it undertook to indemnify the driver of the insured automobile against loss by bodily injury by the driver of said automobile, to the extent of $15,000.00, costs taxed against the insured, and interest on the entire judgment until the face amount of the policy had been paid; makes the insurance policy a part of the answer; asserts that, subsequent to the affirmance of the judgment, and on June 16, 1958, it had paid, pursuant to the demands of such policy, to the clerk of the district court of Jefferson County the sum of $15,000.00 and interest in the sum of $1,638.07 and costs in full on the judgment; alleges that on October 27,1958, the date on which it was served with garnishment summons, the company was not then or thereafter in any manner or account indebted, liable or under liability to the defendant Charles Pence; denies that on the date of the issuance of such summons or on the filing of its answer it had in its possession or under its control any real estate, personal property, effects or credits of any description belonging to such defendant or in which he had any interest; avers that it was in no manner liable as garnishee in the action; and prays that the garnishment be dissolved.
On December 19, 1958, the plaintiff filed an instrument titled “Exceptions to Answer of Garnishee,” no part of which has been abstracted. Thereafter, and on February 16,1959, she filed another instrument titled “Amended Exceptions to Answer of Garnishee.” In substance this amended instrument asserts that under the terms of the policy it was the duty of the company to investigate and defend the defendant Pence; alleges several grounds of negligence and bad faith on the part of the company in the investigation of the case, in the preparation for trial and in the trial itself; and requests the trial court to either direct the garnishee to pay the excess of the judgment over policy limits or to set the same down for jury trial to try the issues of good faith and negligence in the investigation and the trial of the cause.
The garnishee filed a demurrer to the plaintiff’s exceptions to its answer, based on the ground it appeared from the face thereof that such exceptions to the answer did not state facts sufficient to justify or support the relief requested for reasons which, so far as here pertinent, were that the court had no jurisdiction of the garnishee or jurisdiction to grant the relief requested in an extraordinary proceeding; that the plaintiff was not the real party in interest in the question sought to be raised by said exceptions; and that such exceptions failed to state facts sufficient to constitute a cause of action in an extraordinary proceeding.
Thereafter the trial court permitted the demurrer to the amended exceptions to be presented and argued and, after consideration thereof, held that such demurrer should be overruled.
Thereupon the garnishee gave notice it was appealing from the order overruling its demurrer to the amended exceptions to its answer and now seeks appellate review of that order.
In the face of the related facts, the provisions of our garnishment statute, our decisions construing their force and effect, and an issue raised by the appellee challenging the present appeal, we are confronted with a question pertaining to practice and procedure in garnishment proceedings which we believe must be considered and determined before any consideration is given. to numerous questions raised by both the appellant (garnishee) and the appellee (garnisher) relating to the merits of their respective rights on final determination of the involved garnishment claim.
In giving consideration to the foregoing question it may be stated:
1. That, as stated, the precise issue raised by appellee in the form of a claim the appeal should be dismissed is that under the provisions of G. S. 1949, 60-948, issues had already been joined by the parties on the vital question involved in the garnishment proceeding, hence the trial court properly overruled the demurrer on that basis. We take note that inherent in such claim is the additional proposition and real issue, which must be decided, whether under our garnishment statute and decisions construing the force and effect to be given provisions thereof, hereinafter specifically mentioned, pleadings are limited as therein indicated and cannot be extended at the whim and will of the parties, to authorize or permit additional hybrid pleadings such as a demurrer to amended exceptions to a garnishee’s answer.
2. That the portions of our statute pertaining to garnishment proceedings are found in G. S. 1949, 60-940 to 60-965, inch, and that the provision thereof, particularly important in determining the question now under consideration, is section 60-948, pertinent portions of which read:
“The answer of the garnishee shall in all cases he conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer; in which case the issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition, and the garnishee’s affidavit the answer thereto. . . .” (Emphasis supplied.)
In connection with the section of the statute from which we have just quoted it is interesting and, from the standpoint of legislative intent, of some importance to note that the provisions of section 60-945 are of like import and provide that, where the garnishee files an affidavit in the format therein described and the plaintiff serves notice he elects to take issue on his answer as garnishee, and will maintain him to be liable as garnishee, such issue shall stand for trial as a civil action, in which the affidavit on the part of the plaintiff shall be deemed the petition and the garnishee’s affidavit the answer thereto. Thus it appears, from the clear, unequivocal and distinct provisions of the garnishment statute itself, that, when joined as above indicated, the issue of indebtedness or no indebtedness in a garnishment proceeding stands for trial as a civil action.
3. That, under our decisions, there can be no question respecting the status of a garnishment proceeding under our garnishment statute. See, e. g., Cole v. Thacker, 158 Kan. 242, 146 P. 2d 665, where it is said:
"... A proceeding in garnishment is a special and extraordinary remedy given by statute and can be resorted to only under the conditions and procedure expressly authorized by the statute. The statutory conditions for its exercise are conclusive, and exclusive of all others, and cannot be extended to cover general procedural conditions and situations otherwise provided for by the statute. . . .” (p. 250.)
See, also, Reed v. Ziegler, 175 Kan. 635, 265 P. 2d 855, and decisions there cited, where it is held:
“Garnishment is a special and extraordinary, remedy given by statute and the procedure is governed by G. S. 1949, 60-940 to 60-965.” (Syl. f 1.)
And in the opinion said:
“. . . The portions of our statute pertaining to garnishment proceedings are found in our statute G. S. 1949, 60-940 to 60-965. Garnishment proceedings are entirely statutory and the statute pertaining to garnishment proceedings governs this case rather than the sections pertaining to the civil actions generally.” (p. 638.)
And see Reese v. Platt, 4 Kan. App. 801, 44 Pac. 31 and 46 Pac. 990, also dealing with a garnishment proceeding, which holds:
“Where, in any form of action or special proceeding, the statute prescribes certain pleadings to present the issues therein, no other pleadings are necessary.” (Syl. ¶1.)
Under the existing facts and circumstances, which will not be repeated because they have already been stated at length, the clear and unequivocal provisions of the statute granting the special and extraordinary remedy of garnishment, and the authorities to which we have heretofore referred, we are inclined to the view that a demurrer is an unauthorized and therefore improper pleading under our law in a garnishment proceeding. Even so we are not required to base that view entirely upon what has been heretofore stated and held. Long ago in Chambers v. Bane, 91 Kan. 88, 136 Pac. 923, while dealing with a problem quite similar from the standpoint of sections of our statute and legal principles involved, we held:
“An order made on motion of a defendant setting aside service by publication, on the ground that the garnishee is not indebted to him, is erroneous where the question of such indebtedness is pending for trial upon an issue made between the plaintiff and the garnishee in proceedings relating to garnishment as provided in sections 228 to 248 [now G. S. 1949, 60-940 to 60-960, inch] of the civil code.” (Syl.)
And in the opinion said:
“The statute authorizing proceedings against garnishees provides that where a garnishee denies the indebtedness alleged in the plaintiff's affidavit, the plaintiff may take issue upon the answer, which issue shall stand for trial as a civil action. The trial of this issue is between the plaintiff and the garnishee, wherein the affidavit of the plaintiff upon which the garnishment is founded is deemed the petition and the garnishee’s affidavit of nonliability the answer thereto. (Civ. Code, §§228-248 [now G. S. 1949, 60-940 to 60-960, incl.].) The rights given by the statute are substantial, and a plaintiff is entitled to the remedies which it prescribes. The question of indebtedness upon which his right to hold the garnishee liable depends should be determined in the trial provided by the statute, and not upon a motion between the parties to the principal action. It should be observed that section 238 of the statute referred to in express terms provides that a defendant in such an action may intervene and defend in the proceedings against the garnishee upon any ground available to the garnishee. If there was any sufficient reason why the defendant should seek to prove that the garnishee was not in fact indebted to him, this section afforded the opportunity where the issue could be tried in the regular way.” (p. 90.)
Therefore, based on the foregoing decision and what has been heretofore stated and held, we hold that the trial court should have overruled the demurrer on the ground it was an improvident and improper pleading, not authorized by statute in a garnishment proceeding, and required the parties to proceed with the trial of the garnishment issue as the statute (G. S. 1949, 60-948) requires. It follows the order overruling such demurrer must be affirmed as modified and the cause remanded with directions to the trial court to try and dispose of the garnishment issue as a civil action in which the affidavit on the part of the appellee (garnisher) shall be deemed the petition and the appellant’s (garnishee) affidavit the answer thereto.
In reaching the conclusion just announced we have not overlooked but disregarded suggestions made in appellant’s brief that Simmons v. Vawter, 118 Kan. 637, 237 Pac. 71 and Reed v. Ziegler, supra, recognize demurrers filed by the garnishee in a case where garnishment proceedings are involved. Resort to the Simmons case, at page 641 of the opinion, and the Reed case, at page 637 of the opinion, will immediately disclose that those cases do not purport to hold that, as between the garnisher and the garnishee, a demurrer to the pleadings contemplated by 60-948, supra, was proper or authorized under the statute. Quite to the contrary each case reveals that the principal defendant, who under the provisions of G. S. 1949, 60-951, was one of the parties defendant in the garnishment proceeding, was attempting to set up a separate cause of action in his answer, in the nature of a cross-petition or counterclaim, against his co-defendant the garnishee. We held such a claim was not a proper action for the principal debtor to file in a garnishment proceeding, hence a de murrer was good against his answer under provisions of the code of civil procedure having nothing to. do with the garnishment proceeding.
Nor have we been unmindful that in the briefs of the parties there is much argument concerning the fact of the alleged indebtedness of the garnishee. In view of contentions the merits of questions touching on those issues should be here considered we deem it proper to point out they are not now subject to review and that in the disposition of this appeal we have purposely refrained from discussing them or making reference to divers cases relied on which may have some bearing on the respective rights of the parties if and when this case is tried by the trial court upon the merits of the appellee’s affidavit and the appellant’s answer as required by the statute. All we here hold is that the demurrer was unauthorized and improper in the garnishment proceeding and should have been overruled on that basis.
As modified the order is affirmed with directions to the trial court to proceed in conformity with the views herein expressed. | [
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The opinion o£ the court was delivered by
Schroeder, J.:
This appeal arises from a proceeding in eminent domain by the State Highway Commission to (1) acquire an easement for a channel change and borrow, and simultaneously to (2) acquire rights of access along a limited portion of the landowners’ frontage on an existing highway. The parties stipulated the amount of the appraisers’ award for the easement was just compensation thereby leaving as the single issue in the trial court the restriction of access.
It is uncontroverted that the landowners had the same number of entrances to their premises after the condemnation of abutters’ rights of access as they had prior to the condemnation.
The primary question is whether the State Highway Commission under the circumstances presented by the facts in this case may acquire abutters’ rights of access to an existing highway by the exercise of state police power, or whether the State Highway Commission is obligated to acquire such rights of access by the exercise of its power of eminent domain pursuant to G. S. 1957 Supp., 68- 1903, and pay just compensation to the landowners for the taking.
To avoid any misinterpretation of the force and effect to be given the decision herein, a complete report of the factual situation presented by this appeal is deemed necessary.
Pursuant to a plan for the relocation and improvement of U. S. Highway No. 36 in Nemaha County, Kansas, the State Highway Commission (appellant) filed condemnation proceedings in the district court of said county on February 6, 1958. The landowners, Amos and Viola Smith (appellees) own land which fronts U. S. Highway No. 36 just west of the city limits of Seneca, Kansas, and from which a .26-acre easement and abutters’ rights of access were acquired by the State Highway Commission.
The petition filed in the condemnation proceedings recites in part:
“2. That petitioner states that under and by virtue of Section 68-413, G. S. 1955 Supp. it has the right of eminent domain and is authorized to acquire right of way in compliance with G. S. 1949, 26-101, in the name of the State of Kansas for establishing, laying out, opening, constructing, maintaining, improving and draining the State Highway System.
“3. That under and by virtue of Section 68-1901 through Section 68-1906, G. S. 1955 Supp., the State Highway Commission has authority to establish controlled access facilities and to construct and maintain frontage roads and to acquire private and public property, including the right of access for such, controlled access facilities and frontage roads by condemnation proceedings.
“4. That on the 28th day of August, 1957, the State Highway Commission in regular session found and determined that traffic conditions both present and future in Nemaha County, Kansas, justified and required the establishment of controlled access facilities, and that it was therefore necessary to acquire the land hereinafter described as a controlled access facility, and to acquire certain lots and parcels of land described herein for right of way and ordered that said lots and parcels of land be acquired by the State Highway Commission in the name of the State of Kansas by exercise of the right of eminent domain as provided by Section 68-413, G. S. 1955 Supp.
“5. That pursuant to said order the State Highway ■ Commission desires to acquire in the name of the State of Kansas certain lots and parcels of land situated in Nemaha County for highway purposes and a controlled access facility with frontage roads and to design, establish, regulate, improve, construct and maintain a controlled access facility; with said tracts being shown of record to be owned and subject to liens as hereinafter set out.
“6. Petitioner further alleges it hereby desires to purchase or acquire by its condemnation proceeding the right of way hereinafter described and all of the rights to control the ingress and egress in and. to all such tracts designated.” (Emphasis added.)
The property taken from the landowners by the petition was described in Tract 29(c) and in Tract 29(h). The sketch set forth showing a portion of the quarter section of the landowners’ property involved will serve to clarify the facts. Tract 29(c) is a .26-acre easement for channel change and borrow and is indicated by diagonal hatch marks on the sketch. Tract 29 (b) was described as:
“Any abutter’s rights of access to the highway over and across a line described as follows: Beginning at a point on the West line 30.0 feet North of the Southwest corner of the Southeast Quarter of Section 28, Township 2 South, Range 12 East; First Course, Thence East Parallel to the South Line of Said Quarter Section 1410 Feet. Except and reserving, however, unto owners of abutting land, their successors or assigns, the right of access to the highway for the purpose of an Entrance over and across the following described course: . . .”
The exception is a 40-foot existing entrance from the highway shown on the sketch as the Fort Markley entrance. This 1410 feet, shown by the bracket on the sketch, is a portion of the north boundary line along the existing right of way of the State Highway Commission.
At this point it should be stated, referring to the sketch, the south frontage of the quarter section in controversy along existing U. S. Highway No. 36 is 2633 feet. The east portion of the existing highway, consisting of 1165 feet, will serve as a frontage road along a portion of the landowners’ property from which no rights of access were taken. The proposed relocation of the highway will be parallel with and approximately 75 feet south of the existing highway. The abutters’ rights of access, with the exception of one 40-foot existing entrance, were taken from the west portion of the landowners’ property to the extent of 1410 feet. Between the west entrance of the frontage road onto the highway and the east end of the 1410-foot line are 58 feet in which no rights of access were taken.
Appraisers were duly appointed by the district judge and made an appraisal. Their report, filed March 19, 1958, made an award to the Smiths as follows:
“29(a) Land Taken — 0.26 $97.50
Total ..................................................$97.50
29(b) 1,410 feet Abutters Right of Access 685.00
Total ................................................$782.50’’
Both parties appealed from the appraisers’ award of $685 on Tract 29(b). At the trial the parties stipulated the appraisers’ award of $97.50 for the easement, Tract 29(a), was just compensation and withdrew this issue from the jury.
On April 18, 1958, the Commission filed an instrument designated as “Condemner’s Verified Estimate of Just Compensation” wherein the right of way engineer for the Commission stated that the just compensation to the landowners for Tracts 29 (a) and (b) should be $533.50. This included $97.50 for the easement. Thereafter, with the oral approval of the attorneys for the Commission this sum, having been paid into court, was distributed to the landowners.
The case was tried before a jury which heard all the evidence of the respective parties. The trial court instructed the jury the case arose over certain condemnation proceedings instituted by the State Highway Commission for the purpose of obtaining abutters’ rights of access to U. S. Highway No. 36. The jury was instructed the only question involved was the damage suffered, if any, by the landowners as a result of the taking of the abutters’ rights of access to the highway, and the jury was further instructed the burden of proof concerning the item of damages by reason of the taking of the abutters’ rights of access was upon the landowners.
In answer to a special question the jury found the landowners had the same number of entrances to the land after the condemna tion as before' the condemnation. The jury returned a verdict for the landowners in the sum of $5,000 as damages for the taking of the abutters’ rights of access. Judgment was entered for the landowners in the sum of $5,097.50 with interest at 6% on the unpaid balance and costs. The State Highway Commission appeals from this judgment.
It must be observed we attach no legal significance to the fact that the State Highway Commission condemned an easement, Tract 29(c),-in addition to abutters’ rights of access, Tract 29(h), in the same condemnation proceeding. The easement is taken from a portion of the landowners’ property served by the frontage road, and by stipulation the issue of just compensation for this tract was removed from the case. It is in no way related to the abutters’ rights of access taken. Nor do we attach any legal significance to the fact that the landowners had as many entrances to the frontage road, from the portion of their property served by the frontage road, after the condemnation as they had before the condemnation.
The issue before the trial court and the jury was simply one concerning the acquisition of 1410 feet of the abutters’ rights of access along an existing highway, and from which a 40-foot existing entrance was excepted and reserved to the landowners. The landowners had the same “entrance” to their property after the condemnation of abutters’ rights of access as they had before the condemnation.
The State Highway Commission took the position throughout the trial of the case in the district court that it was not acquiring the landowners’ rights of access by eminent domain, but that it had the right and authority in the interest of public safety to regulate access from the appellees’ property to the highway by limiting access to the entrances then in existence under its “Regulations Govérning Entrances to Highway from Private Property.” Simply stated, the State Highway Commission contends it is controlling or limiting the access of the landowners by the exercise of the state’s police power. Apparently the Commission contends the right to regulate the entrances to an existing highway under the police power includes the right to wholly prohibit access without having to pay damages, and by reason thereof, the Commission has the right to condemn and take all rights of access described in this proceeding without becoming liable to pay any damages as a result thereof.
Pursuant to this theory the State Highway Commission at the trial introduced its regulations in evidence and its witnesses were interrogated on the basis of these regulations. The triál court declined to rule the question of law presented by the conflicting theories between the parties until it instructed the jury. It then refused to instruct the jury on the theory of law propounded by the State Highway Commission.
This practice cannot be condoned. Parties are entitled to have the trial court’s decision upon a definite theory of law. This theory should then govern the trial of the case and the admission of evidence. To try a case upon two conflicting theories tends to mislead and confuse a jury. It is apparent from the record here presented, however, with two diametrically opposed theories of law and two diametrically opposed lines of testimony, the jury was not confused. The landowners’ witnesses on value all placed the damages either a little over or a little under $5,000, while each value witness for the State Highway Commission testified in his opinion under the regulations the state would not be liable for any damages. After being instructed by the trial court, the jury simply rejected the testimony of the witnesses for the State Highway Commission and disregarded the theory of law propounded throughout the trial by counsel for the Commission.
The owner of property which abuts an existing street or highway has two distinct kinds of rights in a- highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the street or highway, and which are not common to the public generally. These private rights include certain easements, or appurtenant easements, such as the rights of access, of view, of light and air, and others. These rights are property of which he may not be deprived without his consent, except on full compensation and by due process of law.
It has consistently been held in'this jurisdiction the right of access to and from an existing public street or highway is one of the incidents of ownership of land abutting thereon, sometimes called a common law right of access, which may not be taken from the owner by the public without just compensation. (C. B. Milford, 71 Kan. 331, 80 Pac. 633; Longnecker v. Railroad Co., 80 Kan. 413, 102 Pac. 492; Simmons v. State Highway Commission, 178 Kan. 26, 283 P. 2d 392; Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334; and see, Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825; and G. S. 1957 Supp., 68-1903.)
Any curtailment of an abutter’s rights of access was said in Highbarger v. Milford, supra, to be such a material abridgment of the vested and peculiar interests of the landowner as to be beyond the constitutional power of the legislature. The court further said the abutting owner of land “obtains the right to the use of such streets as are reasonably necessary for the enjoyment of the land so purchased by him.” (p. 340.) (Emphasis added.)
The private rights of an abutting property owner on an existing street or highway are subordinate to the right of the public to proper use of the street or highway. Thus, the exercise of the rights of abutting owners is subject to reasonable regulation and restriction for the purpose of providing reasonably safe passage for the public, but regulations or limitations cannot be sustained which unduly or unreasonably curtail or restrict the rights of the abutting owner. (See, 25 Am. Jur., Highways, § 154, pp. 448, 449; and 39 C. J. S., Highways, § 141, pp. 1079, 1080.)
In Simmons v. State Highway Commission, supra, it was conceded that at the time of the condemnation the owner of property abutting an existing highway “had a common law right of access onto such highway at any point, subject to compliance with the lawful regulations pertaining to entrances promulgated by the commission.” There, in 1953, the State Highway Commission instituted proceedings to condemn certain land, including all rights of access in and to such land as permitted by G. S. 1953 Supp., 68-1901, et seq., in Saline County, Kansas. In addition to the strip of land taken along the highway, to improve the highway from two to four lanes, the landowner lost the right to use approximately 3780 feet of access she had previously possessed along the highway. The Commission moved to strike the testimony of certain witnesses who based their valuations upon elements which included the taking of rights of access — that the land fronting the highway prior to the condemnation had substantially higher value than the land immediately behind it. The trial court overruled the motion and this court affirmed saying:
“. . . Where- — as here — it is conceded the State Highway Commission is proceeding under provisions of the controlled access facilities statute (G. S. 1953 Supp. Chap. 68, Art. 19) with the avowed purpose of condemning the frontage portion of a tract of land possessing highway access rights without restoring those rights to the land remaining in the tract we believe the rule announced in the ease last cited [Russell v. State Highway Comm., 147 Kan. 297, 77 P. 2d 199], where the land involved was deprived of no access rights whatsoever, has no application and it must be held the frontage land taken is worth more per acre than the remaining adjacent land without those rights . . . It necessarily follows evidence of the character of which appellant complains tended to establish one of the elements of damages subject to consideration in determining the value of the land taken from the two tracts in question and the trial court did not err in denying appellant’s motion to strike such evidence from the record or in refusing to instruct the jury to disregard it.” (pp. 30, 31.)
While the entire access of an abutting property owner on an existing highway may not be cut off, generally an owner is not entitled, as against the public, to access to his land at all points in the boundary between it and the highway. The use of the streets and highways may be regulated and restricted by the public authority in the exercise of the police power to the extent necessary to provide for and promote the safety, peace, health, morals and general welfare of the people. It is subject to such reasonable and impartial regulations adopted pursuant to this power as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement, and to provide for their safety while using it. (25 Am. Jur., Highways, §§ 253, 254, pp. 544, 545; and 40 C. J. S., Highways, § 232, p, 240.)
Subject to constitutional limitations, the state has absolute control over the streets and highways within its borders. (State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. S. R. 343, affirmed Atkin v. Kansas, 191 U. S. 207, 24 S. Ct. 124, 48 L. Ed. 148.) Such power of supervision and control may be exercised directly by the legislature, or it may be delegated to a subordinate governmental agency.
The basic problem in every case involving impairment of the right of access is to reconcile the conflicting interests — i. e., private v. public rights. The police power is the power of government to act in furtherance of the public good, either through legislation or by the exercise of any other legitimate means, in the promotion of the public health, safety, morals and general welfare, without incurring liability for the resulting injury to private individuals. (Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, 31 L. Ed. 205 and Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L. R. A. [n. s.] 877.) Eminent domain, on the other hand, is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. (Highbarger v. Milford, supra; and Simmons v. State Highway Commission, supra.)
Sinqe there, is no doubt that the right of access, like any other property can be taken for .public purpose under eminent domain upon payment of just compensation, the interesting question is how far the public can proceed under the police power. Determination of whether damages are compensable under eminent domain or noncompensable under the police power depends on the relative importance of the interests affected. The court must weigh the relative interests of the public and that of the individual, so as to arrive at a just balance in order that government will not be unduly restricted in the proper exercise of its functions for the public good, while at the same time giving due effect to the policy in the eminent domain clause of insuring the individual against an unreasonable loss occasioned by the exercise of governmental power.
It is well settled the limitation and regulation of highway traffic comes under the police power, and it makes no difference how or where any part of the traffic gained access to the road. The regulation of traffic without liability for the payment of compensation includes, among other things, prohibiting left turns, prescribing one-way traffic, prohibiting access or crossovers between separated traffic lanes, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain highways.
Where does the police power end and the power of eminent domain begin? Some courts have attempted to generalize by declaring that the police power ends when the injury to the property owner in not being paid for his property is greater than the injury to the public in haying to pay for the property. (See, The Limited-Access Highway, 27 Wash. L. Rev., pp. 111-129; and Freeways and the Rights of Abutting Owners, 3 Stanford L. Rev., pp. 298-311.)
It is clear in this jurisdiction the limitation, restriction or curtailment of an abutter s rights of access to an existing street or highway must be reasonable to be a valid exercise of the state police power. In Atkinson v. State Highway Commission, supra, an attempt was made by the State Highway Commission to restrict and control an abutter’s rights of access by an exercise of the police power. The plaintiff’s property was located on the southwest corner of a highway intersection and was improved and used as a gasoline filling station for motor vehicles. At all times the plaintiff had full and unrestricted access to and from the traveled portions of the high way and the intersecting street abutting his property. The plaintiff sought an order of the trial court permanently enjoining contemplated improvements, consisting of concrete curbing adjacent to portions of his property and a traffic control light, on the ground the Commission was depriving him of access necessary and essential to the full utilization and enjoyment of the property. The trial court after hearing all the evidence permanently enjoined the Commission from building the improvements and from doing any other act permanently limiting, lessening or interfering with the free, unlimited and direct access of the plaintiff and his customers to and from the station, unless and until the affected property rights (rights of access) of the plaintiff were acquired by the Commission by purchase or by condemnation proceedings. The Commission filed no motion for a new trial. Therefore, on appeal to this court, the only question was whether the judgment was supported by the pleadings and findings of fact. The trial court made no specific findings, and the general finding in favor of the plaintiff raised a presumption that the trial court found all facts necessary to support the judgment. Under these circumstances this court was entitled to assume the trial judge made findings most unfavorable to the Commission — that the taking of the abutter’s rights of access by the Commission in the exercise of state police power was unreasonable and that the plaintiff did not have an adequate remedy at law. Upon the foregoing premise this court affirmed the judgment saying:
“The commission argues there must be an unreasonable, arbitrary, complete or some other equivalent acquisition of the rights of access, but the legislature, in its wisdom, did not see fit to put any limit on the amount of access required to be taken before the commission must resort to condemnation if it were not acquired by gift, devise or purchase. We think the statute means just what it says.
“To hold that the above section does not require the commission to compensate a landowner for the taking of his rights of access would be neither an ordinary nor a judicial interpretation of the statute.” (pp. 663, 664.) (Emphasis added.)
Our determination of how far the State Highway Commission can proceed under the police power to curtail or restrict the rights of access of an abutting property owner is materially assisted by legislative enactments.
In the year 1947 the Supreme Court in State, ex rel., v. State Highway Comm., 163 Kan. 187, 182 P. 2d 127, construed the provisions of G. S. 1945 Supp., 68-413, which were enacted in 1929. This special state condemnation statute was held to confer upon the Commission a fee title to all land condemned as necessary for the purposes specified in the statute. The court there recognized that notwithstanding the far-reaching consequences where the state acquired a fee title, it was not the province or right of courts to determine the wisdom of legislation touching the public interest.
The legislature thereafter in the year 1951 amended the foregoing section of the statute, now appearing as G. S. 1957 Supp., 68-413, to limit the State Highway Commission in the acquisition of a right of way for state highway purposes by condemnation proceedings. It provides in part:
“That in all cases where conderpnation proceedings are instituted to acquire right of way for state highway purposes . . . the state highway commission shall not acquire any light or interest in land other than an easement . . .” (Emphasis added.)
With certain exceptions where buildings or improvements are to be constructed, the Commission is permitted to acquire no other interests in land taken for state highway purposes under this section of the statute. (See also, G. S. 1957 Supp., 68-413a, and Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338.)
Prior to 1953 the State Highway Commission had no authority to acquire controlled access facilities. In that year the legislature enacted the controlled access facilities statute, Chapter 68, Article 19, (G. S. 1957 Supp., 68-1901 to 1906, inch) which authorized the establishment and acquisition of controlled access facilities by highway authorities in this state.
G. S. 1957 Supp., 68-1901 (a) defines a “controlled access facility” as:
“. . . a highway, road or street especially designed to expedite and control through and local traffic, and over, from or to which highway, road or street, owners or occupants of abutting property shall have only a controlled right of easement of access, light, air or view . . .” (Emphasis added.)
G. S. 1957 Supp., 68-1901 (c) defines a “frontage road” as:
“. . . a highway, road or street which is auxiliary to and located on the side of another highway, road or street for service to abutting property and adjacent areas and for control of access to such other highway, road or street.” (Emphasis added.)
The provisions of G. S. 1957 Supp., 68-1902, authorize the state, county or city highway authorities, acting alone, or cooperating with each other or with any federal, state or local authority, or any other state, to establish, regulate and maintain, among other things, controlled access facilities whenever such highway authorities determine that traffic conditions, present or future, justify such facilities. The highway authorities are further authorized to so regulate, restrict or prohibit access to a controlled access facility so as to best serve the traffic for which such facility is intended.
G. S. 1957 Supp., 68-1903, provides for the acquisition of property and property rights as follows:
“The highway authorities, jointly or severally, may acquire the desired private or public property, including rights of access, light, air or view for controlled access facilities, by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights in connection with highways, roads and streets within their respective jurisdictions.” (Emphasis added.)
G. S. 1957 Supp. 68-1904, authorizes highway authorities to designate and establish controlled access highway as new and additional facilities or to include an existing street or highway within such facility.
The provisions of G. S. 1957 Supp., 68-1905, authorize the establishment, construction and regulation, among other things, of frontage roads and the highway authorities are granted the same jurisdiction over frontage roads as is authorized over controlled access facilities under the act.
We think it clear that the legislature by enacting the controlled access facilities statute has spoken on the subject of controlled access highways. By the provisions of 68-1903, supra, it has prescribed the exclusive methods by which private or public property, including rights of access, may be acquired for the establishment of controlled access facilities — that is, “by gift, devise, purchase or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights.” (Emphasis added.) The legislature intended by 68-1903, supra, that a landowner deprived of abutters’ rights of access would be compensated for them.
The Commission argues that it is not obligated to acquire rights of access by eminent domain or as otherwise provided in 68-1903, supra, because this section of the statute uses the word “may” with reference to the acquisition of the desired private or public property. This expression merely indicates that the highway authorities are not required to establish controlled access highways, but, if they do so, they may be acquired only as provided in the act. The provisions in 68-1902, supra, which authorize the highway authorities to so regulate, restrict or prohibit access to a controlled access facility so as to best serve the traffic for which such facility is intended, presupposes that the controlled access facility has already been established pursuant to the act and that the necessary property rights have been acquired. The foregoing interpretation of the controlled access facilities statute is in substance what was said and held in prior decisions concerning the act. (Simmons v. State Highway Commission, supra; Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535; Atkinson v. State Highway Commission, supra; and it represents the opinion of a majority of the members of the court in Riddle v. State Highway Commission, 184 Kan. 603, 339 P. 2d 301, although it should be observed the opinion written for the court does not completely represent the opinion of any single member of the court.)
In the Franks case the landowners filed an injunction action against the State Highway Commission. The Commission had previously condemned a right of way in 1951 over property of the landowners for the purpose of relocating U. S. Highway No. 24 prior to authorization by the state legislature of the acquisition of controlled access facilities. Thereafter, and prior to the construction of the new highway thereon, where no previous highway existed, the Commission in 1956 sought by condemnation to acquire the rights of access to the land previously taken and to acquire an additional right of way consisting of .078 of an acre of plaintiffs’ land. This subsequent condemnation proceeding was abandoned as to the plaintiff landowners. Thereafter the Commission, pursuant to its resolution designating the new highway as a controlled access facility, proceeded with the construction of the new highway as a controlled access facility taking plaintiffs’ right of access, presumably on the theory it was acquiring the rights of access by an exercise of the police power. The action came to this court on appeal from an order overruling the Commission’s demurrer to the petition. In affirming the trial court by a unanimous decision this court said:
“The allegations of the petition make it appear that if an injunction were refused, the commission, without condemnation, could limit and control plaintiffs’ previous access to what is now a controlled access facility. This involves a vital property right. (25 Am. Jur., Highways, § 154, p. 448; 39 C. J. S., Highways, § 141, p. 1081.) Such exigencies may later compel the trial court to deny the injunction because it would inflict great injury upon the commission and its power of eminent domain and would adversely affect the public interest. In lieu of a decree to enjoin, the court could award damages to plaintiffs as compensation (Provident Mut. Life Ins. Co. v. State Highway Comm., 155 Kan. 351, 355, 125 P. 2d 346) by reason of the controlled access facility and its effect on plaintiffs’ right of access to and from their property.” (p. 137.) (Emphasis added.)
Perhaps the fallacy in the Commission’s argument can best be illustrated by resort to the procedure open to a landowner where the state police power is exercised under the Commission’s “Regulations Governing Entrances to Highway from Private Property.” This procedure was the subject of testimony by a resident engineer for the State Highway Commission.
In the absence of the acquisition of an abutting property owner’s right of access to an existing highway by eminent domain proceedings, or as otherwise provided in 68-1903, supra, the abutting property owner desiring an additional entrance, not existing at the time the right of way for the proposed new highway is acquired or not made necessary because of the proposed new highway improvement at the time the right of way for the new improvement is acquired, must make a request by application on a regular permit form provided by the Commission through proper channels to the Commission or its duly authorized division agent. If the request for a permit is denied, the property owner may resort to the courts-to litigate the question whether his right of access to the highway which is reasonably necessary for the enjoyment of the land has-been unduly or unreasonably curtailed or restricted.
The Commission argues under the police power it may limit access from the abutting property on the highway to the entrances-then in existence. While the entrances in existence and used by an abutting property owner may be sufficient for the present and be-all that are reasonably necessary for the enjoyment of the land, the-Commission’s argument fails to take into consideration future needs. With the advance in time land uses change, as well as other circumstances, which might affect the need for additional entrances to-the land. And if in the future additional entrances are unreasonably denied by the Commission, the courts are still open to determine-the question.
But, if the Commission acquires the rights of access of an abutting; property .owner on an existing highway, pursuant to 68-1903, supra, the Commission has absolute control and may prohibit, at will, any further entrances to the portion of the land along which access-rights have been acquired.
Thé need of an abutting property owner on an existing highway for additional' entrances in the future is vitally material, since the question is interwoven with the present value of the land abutting the highway based upon a consideration of all of the capabilities of the property for its best and most advantageous uses as it is actually situated at the time of the taking. It is therefore obvious the taking of an abutting property owner’s rights of access on an existing highway will affect the value of the land from which access rights are taken. The extent to which the value is affected will vary with the facts and circumstances of each case.
The amount which the state will have to pay in an eminent domain proceeding for the acquisition of rights of access is determined by considering the market value of the property before the access right is taken and after it is taken. The difference in value is the damage for the loss of access rights.
The Commission complains of the jury’s verdict as being excessive. Having placed all its “eggs in one basket” at the trial, so to speak, by attempting to show the landowners had no damage on the Commission’s theory of the law, the testimony of the value witnesses for the landowners remained unchallenged when the case was finally submitted to the jury. Resort to the facts will show the landowners established commercial value for their property prior to the condemnation.
Facts which are not controverted by the evidence disclose the southeast corner of the quarter section of land in controversy is identical with the northwest corner of the city of Seneca. The Smiths owned this quarter section less a tract in the northeast corner thereof used for cemetery purposes, and less a 3-acre tract in the southeast corner owned by, and operated as, Gockel Lumber Yard. This 3-acre tract extended north from the section line a distance of 268.7 feet and west a distance of approximately 468 feet. North of the Gockel Lumber Yard are Commodity Credit Corporation grain bins. The Smiths had leased, with option to purchase, a 1-acre tract west of the lumber yard to Sanders Ford Motor Company for commercial purposes, and this tract also extended 268.7 feet north from the section line.
All witnesses who testified concerning the highest and best use to which the land could be adapted testified that a strip of land 268.7 feet in width from the section line, lying to the north of the existing highway for the distance of the 1410 feet along the existing right of way where abutters’ rights of access were taken, was suitable for platting into 1-acre tracts for commercial purposes. The evidence was that property fronting the highway east of the city of Seneca was not suitable for commercial development due to a drainage problem and no other property fronting the highway near the city was available to the west along the highway.
Across the road to the south of the Smith land was a quarter section owned by the city of Seneca, acquired for an airport and other purposes, and directly south across the road from the 1410-foot strip was the Seneca golf course. Immediately west of the city -quarter on the south side of U. S. Highway No. 36 was a “truck stop,” a commercial enterprise.
In fact, in the entire eminent domain proceeding designed to improve U. S. Highway No. 36 in the vicinity of Seneca it was only on the Smith property that the State Highway Commission condemned abutters’ rights of access. This action in the wisdom of the State Highway Commission was, no doubt, taken in anticipation of future commercial development on the Smith property. It cannot be denied on the basis of the record here presented the landowners established commercial value for their property before the taking of the abutters’ rights of access.
Complaint is made by the Commission that values of the land in controversy were limited to a strip 268.7 feet from the section line along the highway. No objection was made concerning this limitation at the trial and it is too late for counsel to raise the objection on appeal. (See, Simmons v. State Highway Commission, supra.)
While all of the instructions given by the trial court to the jury have not been abstracted, the record does not indicate the trial court erred in any of the instructions given or that it erred in refusing to instruct the jury on the Commission’s police power theory of the law. The instructions requested by the Commission, upon the facts and circumstances presented by the record in this case were immaterial.
The State Highway Commission filed a petition in eminent domain seeking to acquire rights of access thereby. Upon the docketing of the action this petition became the jurisdictional instrument upon which the trial was conducted. (See, Sutton v. Frazier, supra, and cases cited therein.) It is apparent from the petition the Commission elected to acquire by eminent domain the abutting landowners’ rights of access. Upon the date of the taking the Commis sion had absolute power to control the access of the appellees,and their successors in title to the 1410 feet of access acquired with the exception of the 40-foot Fort Markley entrance reserved to the appellees.
This opinion has been written in direct answer to the basic contention of the State Highway Commission'that it has the power-to acquire rights of access of an abutting property owner on an existing highway by an exercise1 of state police power and .do it simultaneously in an eminent domain proceeding without incurring liability for damages to the property owner. To avoid clouding the issue on this point it has been assumed the appeal in the eminent domain proceeding to the district court by the parties brings in its entirety the sufficiency of the award to the district court (Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384) and permits the State Highway Commission to raise any question concerning the award. It has further been assumed concerning the above issue that the conduct of counsel for the Commission, heretofore related, does not operate as an estoppel against the Commission or as a waiver of any of its rights (See, State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 715, 22 P. 2d 1093; Kucera v. State, 160 Kan. 624, 164 P. 2d 115, and cases cited in these opinions), although this assumption should not be construed as a decision on the question. While courts in the past have generally held the doctrine of equitable estoppel does not apply to the government, it should be noted the government is estopped by agreements, stipulations, concessions, failures to object, failures to file a motion for a new trial, and representations made by its attorneys in the course of litigation. (See, Atkinson v. State Highway Commission, supra; Fleming v. Brownfield, 47 Wash. 2d 857, 864, 865, 290 P. 2d 993, 998; and United States v. Star Const. Co., [1951, C. C. A. 10], 186 F. 2d 666.)
The petition filed by the State Highway Commission in the eminent domain proceeding,- presently before the court in the action pending, complied strictly with the legislative mandates of the controlled access-facilities statute, and particularly 68-1903, supra, for the acquisition of abutters’ rights of access on an existing highway. On the date of the taking the Commission fully acquired the abutters’ rights of access described in the petition and was thereafter empowered to regulate, restrict or prohibit access to the highway as a controlled access facility pursuant to 68-1902, supra. By the same token, the Commission obligated itself to pay for the rights of access taken. We find no reversible error in the record of the trial.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
In this original proceeding in habeas corpus the petitioner seeks his release from the state penitentiary in which he is presently confined.
The pertinent facts are summarized: Petitioner was tried in the District Court of Sedgwick County, Kansas, for the unlawful possession of marijuana, in violation of G. S. 1949, 21-2311. At the commencement of the trial on May 7, 1956, petitioner was present in person and with his own attorney. At the conclusion of the state’s case the trial was continued until ten o’clock the following morning. At the scheduled hour on May 8, 1956, petitioner’s attorney appeared but the petitioner, who was at liberty on bond, failed to appear. The trial court waited until 10:30 a. m. and then ordered the petitioner’s bond forfeited. At that point in the proceedings, petitioner’s attorney rested the defense, the jury was instructed, the state made its opening argument, and petitioner’s attorney waived argument. After deliberation, the jury returned its verdict at 11:20 a. m. finding petitioner guilty as charged. The court accepted the verdict of the jury, dismissed it from further consideration of the case and ordered an alias warrant issued for the arrest of the petitioner.
On October 23, 1956, some five months later, the petitioner was arrested on the alias warrant and brought before the trial court. At that time his attorney, with the court’s permission, withdrew from the case and the court appointed counsel for the petitioner. On the following day, petitioner’s appointed counsel filed a motion for a new trial. The state objected to arguing that motion upon the ground it was filed too late and the court ruled that the petitioner had waived his right to file such a motion by voluntarily absenting himself from May 7, 1956, until his apprehension on October 23, 1956. Thereupon, the court heard evidence of petitioner’s two prior felony convictions and sentenced him upon the verdict of guilty to a term of 15 years in the penitentiary pursuant to G. S. 1949, 21-107a.
The petitioner first contends that the trial court, by proceeding with the trial in his absence, lost jurisdiction to accept the'verdict of the jury, and to subsequently impose sentence upon him. We do not agree. At the time of his trial, he was free on bond. The state had concluded its case on the first day of the trial and when the court convened the following day to proceed with the case, he failed to appear. The journal entry of judgment contains an express finding that his absence was voluntary. The predicament of a trial court under these circumstances was considered by this court in The State v. Way, 76 Kan. 928, 93 Pac. 159. In its opinion the court made an exhaustive study of the authorities on both sides of the question, and noted the evils which might befall if a defendant, free on bond, could render it impossible to complete the trial merely by departing from the court, and concluded:
“The question therefore being an open one in this state, the court prefers to follow what is clearly the weight of authority as well as what seems to be the better reason and to decide that the right of the defendant to be present during a felony trial is one that may be waived, and that if while at liberty on bond he is voluntarily absent, without having been excused by the court, when the jury reach an agreement a verdict against him may lawfully be received in his absence.” (1. c. 939)
See, also, The State v. Adams, 20 Kan. 311, 326. The holding announced in the Way case, supra, has been consistently followed in The State v. Thurston, 77 Kan. 522, 526, 94 Pac. 1011; The State v. Bland, 91 Kan. 160, 136 Pac. 947; The State v. Stratton, 103 Kan. 226, 173 Pac. 300; State v. Fry, 131 Kan. 277, 291 Pac. 782; State v. Zakoura, 145 Kan. 804, 68 P. 2d 11; State v. Maxwell, 151 Kan. 951, 958, 102 P. 2d 109. The briefs of the parties, and our limited research on the question, do not disclose a case in which it was held that the voluntary absence of the defendant, who was at liberty on bond at his trial in a felony case, was held to render the proceedings void. In Jamison v. Hudspeth, 168 Kan. 565, 213 P. 2d 972, one of the grounds alleged for the issuance of a writ of habeas corpus was that the defendant was not present when the court reconvened the trial following a noon recess, and the jury was conducted to the jury room for further deliberation. The court noted that, as here, the record did not disclose his absence was involuntary and the petitioner having given no reason for his failure to be present at the time set for the court to reconvene, concluded in its opinion:
“. . . Under such a record petitioner is not entitled to his release by reason of section 10 of our bill of rights or under the provisions of G. S. 1935, 62-1411. Neither would he, under such circumstances, be entitled to a reversal of a judgment of conviction on appeal. (State v. Adams, 20 Kan. 311; State v. Kendall, 56 Kan. 238, 42 Pac. 711; State v. Maxwell, 151 Kan. 951, 102 P. 2d 109, and cases therein cited, anno. 128 A. L. R. 1315-1329.)” (1. c. 566, 567.)
In view of the foregoing, we conclude that the absence of the defendant on May 8, 1956, under the facts and circumstances disclosed by the record, did not affect the right of the court to proceed with the trial, receive the jury verdict, or subsequently impose sentence thereon.
The petitioner next contends his rights were prejudiced by the trial court’s delay of approximately one hour between the time his appearance bond was forfeited, and the alias warrant was issued. The contention lacks merit. While the trial court would have been properly justified in issuing an alias warrant for the defendant’s arrest at the time his appearance bond was forfeited, it was clearly authorized to do so after it had received the jury’s verdict of guilty. The petitioner, having voluntarily absented himself, was in no manner prejudiced by the delay of approximately one hour in issuing the alias warrant. It could have been issued at any time upon application of the county attorney (G. S. 1949, 62-1228).
The petitioner next contends that his attorney of record so improperly conducted his defense as to amount to practically no representation at all. The petitioner argues that his attorney, without authorization from him, and in his absence, rested the defense and waived argument to the jury, which was prejudicial and in lack of concurrence with his defense.
The duty of an attorney to his client in a criminal case was thoroughly examined in Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147. It was held that, in order to justify the issuance of a writ of habeas corpus, the attorney selected by the defendant must be so incompetent or dishonest, or so improperly conducts the defendant’s case as to amount to practically no representation; that mere negligence or incompetence is not enough, and that proof of the attorney’s dereliction of duty should be by a clear preponderance of the evidence.
In the case at bar the record indicates that, when it came time to present the case for the defense and the defendant did not appear in court, his attorney rested his case without introducing testimony, and waived oral argument. It is a frequent practice of attorneys who defend persons charged with felony to refrain from placing the defendant upon the stand to offer evidence in his own behalf. These tactics are frequently successful. Whether petitioner’s attorney originally planned to conduct the defense in this manner or whether he intended to have the petitioner sworn and testify in his own behalf, does not appear. The course adopted by petitioner s attorney was one on which “the most astute lawyers might differ.” (Trugillo v. Edmondson, 176 Kan. 195, 203, 270 P. 2d 219.) In any event, it is difficult to see what other course petitioner’s attorney might have taken in the absence of his client.
Petitioner next contends his attorney threatened to withdraw from the case at the close of the first day of the trial because his fee had not been paid. This contention is wholly uncorroborated and does not sustain the burden of proof in a habeas corpus proceeding which would justify the issuance of a writ. Moreover, it affirmatively appears that petitioner’s attorney was present in court on the second day of the trial and prepared to continue with the case, and in fact, did so.
It is next contended the trial court abused its discretion in refusing to consider petitioner’s motion for a new trial filed on October 24, 1956. At this stage of the proceedings the motion for a new trial was clearly out of time under G. S. 1949, 62-1723. Had the petitioner desired to reserve his right to file a motion for a new trial it was only incumbent upon him to appear before the court when it reconvened on the second day of his trial as he was bound to do under the terms of his recognizance. Ry voluntarily absenting himself, the petitioner waived his right to be present at the time the verdict was returned, and he cannot now say the court abused its discretion in refusing to consider such a motion, the timely filing of which was dependent upon the date of his conviction. Furthermore, at the time the court refused to hear petitioner’s motion for a new trial, he was present in person and by his court-appointed attorney. In refusing to hear that motion and in imposing sentence upon petitioner, the court determined that it had jurisdiction to impose the sentence. If that conclusion was erroneous, which we in no wise infer that it was, petitioner had ample opportunity to appeal. No appeal was perfected and he cannot in this collateral attack upon the validity of the judgment of the court take advantage of his own laches. (23 C. J. S., Criminal Law, § 975, p. 310.)
Finding nothing in the record which would justify the issuance of a writ of habeas corpus, it is the judgment of this court that such a writ be denied.
It is so ordered. | [
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|
The opinion of the court was delivered by
Schroedeb, J.:
This is an action for damages which was alleged and tried on the theory of trespass. From a verdict and judgment for the defendant on all six counts the plaintiff has duly perfected his appeal to this court.
The twenty-eight specifications of error assigned by the plaintiff concern trial errors consisting of rulings upon the admissibility of evidence, instructions given and refused, and argument by counsel before the jury.
The following statement of facts taken from the evidence presented in the record will serve as a basis for further discussion.
The Board of County Commissioners of Johnson County, Kansas, is the governing body of Indian Creek Sewer Subdistrict No. 1, a public sewer district duly organized under the laws of the State of Kansas. It is located within Johnson County. The Teis Construction Company, Inc., is a Kansas corporation, and was hired by said sewer district to construct underground sanitary sewer lines within the district.
Earl T. Porter and his brother, Audley W. Porter, are owners of property situated in the sewer district and located at the southwest corner of 91st and Antioch Road, containing approximately eighty acres. They also own an additional forty acres north of 91st Street.
The plaintiff, Joe Mackey (appellant), rented the above two tracts of land owned by the Porters early in the year 1955, under a verbal lease which Earl T. Porter testified was by the year, but which the plaintiff testified was for an indefinite duration — that he could remain upon the premises as long as he wanted to until development of houses was started on the property. The plaintiff operates a dairy on the premises and is also engaged in the buying and selling of dairy cattle.
Sometime in 1955, before construction of sewers started on the land in question, the Porters orally granted to the sewer district an easement to construct sewers on said land. This oral conveyance was later confirmed by written instrument dated April 26, 1956. The plaintiff was not notified of said grant to the sewer district prior to the actual entry upon the property by the contractor, Teis Construction Company, Inc.
The contractor entered upon said land on a Wednesday, October 19,1955. In three days he had dug a trench, laid the sewer pipe and then backfilled the trench to a point near the southwest gate of a barn lot of plaintiff’s on the eighty-acre tract in question. Part of the ditch and a manhole excavation near this gate were open on Friday evening, October 21, when the contractor and his employees quit work.
Plaintiff’s employee, George Kueck, did general farm work for the plaintiff on these premises. It was his duty to attend the cows and feed them, and on the evening in question he drove some of the plaintiff’s dairy cattle past this excavation and through the southwest gate of the barn lot. His testimony was that there were no barricades around the excavations.
The plaintiff was absent in Minnesota purchasing cattle when the contractor entered upon the premises on October 19th and did not return home until after dark on Friday, October 21st. That same evening, between the hours of 10:00 and 11:00 p. m., there arrived at plaintiff’s leased premises, by truck from Minnesota, nineteen' head of Holstein cows, which he had purchased on the trip to Minnesota. The plaintiff’s manager, Bob Gifford, Jr., and plaintiff’s employee, George Kueck, were present and aided the plaintiff in the unloading of the cows. These two men were aware that the southwest gate of the barn lot was open and that there were open excavations immediately adjacent or near the gate which they testified were without barricades. George Kueck testified that he did not tell the plaintiff about the ditch or the excavation near the gate because he was afraid the plaintiff would make him fence them.
The plaintiff testified that at the time the Minnesota cattle were unloaded on the evening of October 21, they were examined and found to be in sound condition. On Saturday morning, October 22, when plaintiff arrived at his leased premises, at about 8:00 a. m., he found that his cattle had been injured. Four cows were down and could not get up. The plaintiff testified that two were near the barn and two were down near the ditch. The remainder of the nineteen head were bruised and appeared to be stiff and sore. They were scattered out over the pasture. There were none in the sewer ditch or manhole excavation.
The plaintiff’s witness, Dr. Twiehaus, a veterinarian, testified that the injuries consisted of muscle bruises, open wounds that had gotten infected and bone injuries. The four cows that were down had pelvic injuries, displacement of the hip joint and the like. These pelvic injuries, according to his testimony, were due to some violent accident because it would be very unusual for cattle to hurt themselves in a pasture like these were hurt. ■ “It could have come from a fall.” He recommended that the four cows which were down be destroyed. On cross examination he testified that the injuries occurred from twelve to eighteen hours before he saw the cattle. Four cows, other than those he directed to be destroyed, had premature calves born thirty-six to forty-eight hours after he had treated the cattle. He testified that the injuries could have occurred by reason of the cattle falling into a pit, and in his opinion that was the only way the injuries could have been sustained; that in his opinion the injuries could not have been sustained in shipment. He further testified a cow after receiving a pelvic or hip injury, as four of these cows sustained, would not be able to walk and would not be able to crawl out of a hole or pit ten feet in diameter and between seven to nine feet in depth, unless there would be some gradual incline.
The plaintiff admitted there was a dry stream bed in the pasture with banks five and one-half to six feet high. The plaintiff testified he hired a tow truck to move the two cows that were down near the ditch to the barn. When the driver of the tow truck was called to testify he stated that there was only one cow down, and it was down in the south end of the pasture and was not near any ditch or sewer. He stated that this cow had just given birth to a dead calf and that he did not see any ditch or sewer on the premises.
The contractor on Thursday, October 20, accidentally cut a water line on the premises which ran between the water well and the electric water pump, a distance of approximately two hundred feet. This water line was repaired by the contractor on the same day. Beginning on November 17, 1955, and thereafter, plaintiff had to call a plumber to repair the water pump in question which pumped the water from the well for the cattle. The plumber was called on numerous occasions thereafter but the plumber testified that he never could exactly find the trouble with the pump other than it continually lost its prime. He did not know what caused the pump to lose its prime. The plaintiff’s evidence was that the well which supplied water for the premises after the sewer line was put in would not supply sufficient quantities of water for his needs, although it had done so before. No explanation appears in the record as to why this well would not supply sufficient water other than the fact that it was admitted by the plaintiff that 1955 was a dry year. Because of the lack of water, the plaintiff was forced to buy water thereafter for his cattle.
On June 11, 1956, the plaintiff's cattle escaped from his pasture and damaged sweet corn grown in a neighbor’s garden. In settlement the plaintiff paid the neighbor $25 for this damage. Some men were said to have taken the fence down on the south line of the property which allowed the cows to escape from the pasture. (Plaintiff’s manager said the gate was left open.) These men were never identified by the evidence but were said by the plaintiff to have done some work on the sewer line on June 8, 1956.
The excavation for the manhole located at the southwest corner of plaintiff’s barn lot remained open for approximately three weeks. Because of this opening plaintiff kept his cattle in the barn lot and fed them for this period. The plaintiff had on hand during this time a daily average of sixty head of cattle and testified it cost him an average of $1.00 per head per day to feed them.
The plaintiff sued asking damages in six counts as follows: (1) For injuries suffered by his cattle falling into the excavation dug by the defendant on the premises in question without plaintiff’s permission in the sum of $3,200; (2) for veterinarian expenses in treating said cattle in the sum of $1,000; (3) for the cost of purchasing water because of damage to the water well in the sum of $1,000; (4) for expense of repairing damage to the water pump in the sum of $350; (5) for the cost of feeding his cattle while the defendant was working in plaintiff’s pasture for a period of twenty days in the sum of $1,200; and (6) for the cost of reimbursing his neighbor for damage to crops caused by the escape of plaintiff’s cattle from his pasture in the sum of $25; and for costs.
It was admitted at the trial the defendant had no easement from the plaintiff across these premises at the time the sewer line was laid and that the Teis Construction Company was its contractor and built the sewer line pursuant to a contract with the defendant.
The jury returned a verdict in favor of the defendant (appellee herein) and against the plaintiff (appellant herein) on each count.' Judgment was entered by the trial court upon the verdict awarding defendant costs.
As a preliminary to further discussion it must be noted the action in the instant case is not for damages by reason of the failure of the County Commissioners to condemn an easement across the premises in which the plaintiff had a leasehold interest. The action is strictly one for damages by reason of trespass and was presented in the trial court upon the theory that a trespass had been committed. No further discussion will therefore appear in this opinion concerning the rights of the defendant to enter upon the premises for the purpose of constructing the sewer line in question. We shall proceed on the assumption that a trespass was committed on the premises insofar as the plaintiff herein is concerned.
Ordinarily this would entitle the plaintiff to nominal damages in the absence of proof of actual damages, but counsel for the plaintiff concedes in argument that the plaintiff is not pressing for reversal on the ground that he should have been awarded nominal damages. Counsel for plaintiff concedes unless sufficient error is shown by the record concerning actual damages to warrant a reversal the judgment should be affirmed.
The defendant by its answer interposed a general denial and affirmatively alleged, among other things, that the injury or damage sustained by the plaintiff was the direct and proximate result of the negligence or willful disregard of the plaintiff, or his agents, to take ordinary prudent care to prevent injuries to his livestock under the circumstances.
The trial court instructed the jury with respect to the burden of proof cast upon the plaintiff among other general instructions, and specifically instructed as follows:
“Instruction No. 7
“This is an action based upon trespass by the defendant through its agent, Teis Construction Company, Inc., a corporation, for alleged damages resulting from the construction of a sewer line across the premises occupied by the plaintiff without authority given by the plaintiff to either Teis Construction Company, Inc., or its principal, the defendant.
“Before the plaintiff is entitled to recover from the defendant you must find that the construction company entered upon the premises occupied by the plaintiff without actual authority from the plaintiff and that the damages sustained by the plaintiff were the natural and proximate result of the trespass by Teis Construction Company, Inc., as agent of the defendant.
“Instruction No. 8
“You are instructed that proximate result as used in these instructions is that result which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and damage complained of by the plaintiff and without which the injury and damage would not have resulted; in other words, the injury to be the proximate result of the trespass must be the natural and probable consequences of the wrongful act. Natural and probable consequences are those which human foresight can anticipate from the wrongful ad.
“Instruction No. 9
“You are instructed that one who is damaged by the wrong of another should take such action to mitigate his damages as was reasonably possible under the circumstances, and if you find that the defendant did commit a trespass against plaintiff by coming on his property without his permission and digging the sewer ditch and manholes in evidence, then you shall take into consideration what appropriate measures were reasonably available to him under the circumstances to have protected his cattle, utilized his pastures, repaired his fences and in herding the cattle for the necessary period of construction.
“If you find plaintiff is entitled to recover under any of the counts of his petition and that any such measures to mitigate damages as above referred to were reasonably possible under the circumstances thereof, plaintiff’s recovery shall be limited to the cost in time and labor of such measures.
, “Instruction No. 10
“You are hereby instructed that knowledge obtained by an agent within the scope of his authority as such agent, is in law the knowledge of the principal, and wherever you may be required to find in this case that any party had knowledge of the existence of any fact, if you find from the evidence that said party’s duly authorized agent had such knowledge, then it is your duty to find that the party for whom said agent acted also had knowledge of that fact.
“Instruction No. 11
“If you find that the defendant as principal of Teis Construction Company, Inc., did enter upon the premises occupied by the plaintiff without having secured from the plaintiff authority so to do and that as a natural and proximate result of said entry upon the premises occupied by the plaintiff the plaintiff sustained injuries and damages, then you shall return a verdict for the plaintiff for either the damages or mitigated damages, if any, which the plaintiff sustained on each count in a sum not to exceed the limit sought as set forth in Instruction No. 1. Unless you find for the plaintiff on all of the above necessary elements then you shall return a verdict for the defendant.” (Emphasis added.)
While counsel for the plaintiff did not object to Instruction No. 7, he did object to the last sentence in Instruction No. 8 and to Instructions numbered 9,10 and 11.
Upon all the facts, conditions and circumstances presented by the record in the instant case the foregoing instructions (Nos. 7 to 11, inch) were properly given to the jury.
The argument advanced by the plaintiff is that the last sentence in Instruction No. 8 tends to cut down the damages for which a trespasser is liable. He argues a trespasser is liable for all damages arising out of his trespass regardless of whether human foresight may have anticipated the same as a result of the wrongful act. The plaintiff, however, in his brief has quoted the proposition of law applicable to this case on the point-in question in the following manner:
. . Such liability extends not only to injuries which are directly and immediately caused by his act but also to such immediate consequential injuries as, according to the common experience of men, are likely to, and do in fact, result from such act. . . .” (Emphasis added.)
For the above proposition 15 Am. Jur., Damages, § 66, pp. 471, 472, is cited. We fail to perceive any substantial difference in the law quoted and the instruction given.
In an action of trespass damages may be awarded for injury to a business which are the immediate consequence of the trespass. The wrongdoer should compensate for all the injury naturally and fairly resulting from his wrong. (K. P. Rly. Co. v. Mihlman, 17 Kan. 224.) In the instant case the appellee entered upon the premises in question under a claim of right and in good faith. Under such circumstances exemplary damages will not usually be allowed and the plaintiff here is making no claim for exemplary damages. Upon all the facts, conditions and circumstances presented by the instant case it cannot be said the trial court erred in giving Instruction No. 8.
Plaintiffs objection to Instruction No. 9 is that it makes it incumbent upon a victim of trespass to mitigate his damages. It is argued that a victim of trespass, unless he deliberately endeavors to bring about the injuries willfully, is not compelled to take any action to relieve the trespasser of the consequences of his unlawful trespass.
It should be noted that Instruction No. 9 does not relate to mitigation of damages by the defendant but to damages which could be prevented by the plaintiff. A person suffering from the trespass of another is bound, as far as he reasonably can, to reduce his damages, and he is required to exercise the diligence of an ordinarily prudent man in order to do so. Hence, a plaintiff cannot recover damages resulting from his own failure to employ the ordinary and obvious means necessary to prevent the injury. The rule excluding a recovery in case the consequences were avoidable only requires that the plaintiff should exercise good faith and fair dealing. (87 C. J. S., Trespass, § 111, pp. 1065, 1066.)
In K. P. Rly. Co. v. Mihlman, supra, the court said:
“. . . The proposition is sound, that while a wrongdoer should compensate for all the injury naturally and fairly resulting from his wrong, yet the party upon whom the wrong is done should take reasonable care of his property, and make reasonable effort to prevent any extension of the injury. If a party can with reasonable effort prevent an injury from spreading, he ought to do it. It is no more than simple justice to the party who has caused the injury, especially if that party has acted without malice, and without a thought of causing injury. . . .” (p. 234.)
The foregoing rule was later affirmed in Fritz v. Western Light and Power Corp., 140 Kan. 250, 36 P. 2d 90, also a case involving trespass. (See also Shannon et al. v. McNabb, 29 Okla. 829, 120 Pac. 268.) Instruction No. 9 was properly given to the jury.
The defendant’s evidence in the instant case disclosed that its servants and agents took immediate steps to protect the plaintiff by having the excavations either backfilled or barricaded so that the plaintiff would be free to pasture his cattle, and the broken water line was immediately repaired on the day it was encountered. The plaintiff s evidence established that he did nothing but sit back and increase his damages. If the excavation for the manhole was not barricaded, as he alleged and as some of plaintiff’s evidence indicated, a fence could easily have been erected with materials on hand according to the testimony of his employee, George Kueck. The plaintiff’s evidence further disclosed that he had other cattle which his foreman had placed in another lot on the evening of the 21st of October, due to the sewer ditch across the pasture. Yet these cattle from Minnesota, strange to the plaintiff’s lot and pasture, were driven in the dark of night through the dangerous gate where the sewer ditch and manhole excavation were located into the pasture where there was a dry stream bed located with steep banks approximately as deep as those of the excavation.
The duty imposed upon a plaintiff to mitigate damages where a trespass is known to exist should not be confused with a plaintiff’s negligent conduct in failure to discover the trespass, which may not be shown in mitigation of damages. (Fox v. Turner, 85 Kan. 146, 116 Pac. 233; and Green v. Turner, 85 Kan. 877, 116 Pac. 234.)
The appellant specifically objects to the words “herding the cattle for the necessary period of construction” set forth in Instruction No. 9. It is argued there was no evidence offered by the defendant as to where the cattle could have been herded. This objection has no merit. There was much evidence in the record to which counsel for the defendant repeatedly objected without success concerning the pro and con of pasturing alfalfa with dairy cattle, all of which was permitted to go to the jury for its ultimate determination. There was also testimony by the plaintiff and his foreman that the pasture on the eighty-acre tract in question had sufficient bluegrass to pasture the cattle, although a mathematical calculation discloses that after ten acres, comprising the farmstead and barn lot, and thirty-five acres of alfalfa at the west end of the eighty-acre tract in question are deducted, there remains but thirty-five acres of grass near the end of a grazing season, described as “dry,” upon which to pasture an average of sixty head of dairy cattle. These matters were all before the jury and no doubt had a considerable effect upon the jury in determining the weight and credit to be given the testimony of the plaintiff and his foreman as to whether the feeding of plaintiff’s cattle in the dry lot was a direct consequence of the trespass. There was also evidence the forty-acre tract north of 91st Street leased by the plaintiff had brome grass which had been used for pasturing plaintiff’s cattle. This was not pastured after the trespass, and it had no sewer ditch or other excavation upon it.
Objection w&s made to Instruction No. 10, that knowledge to the agent is knowledge to the principal. It is contended by the plaintiff that no evidence of any agency was introduced on the part of the plaintiff’s employees being agents within the scope of the matters involved; and that there has been no plea of agency.
It has long been the law of this state that the defendant need not plead specifically the fact that there existed a principal-agent relationship between the plaintiff and his employees. (Bice v. Nelson, 105 Kan. 28,180 Pac. 206.) Moreover, the defendant did more than make a general denial in his answer. He alleged that the injuries complained of were the result of the failure of the plaintiff, his agents, employees and servants to take ordinary prudent care of his cattle; that plaintiff, his agents, employees and servants knew of the defendant’s entry and the purpose thereof; and that the plaintiff’s own carelessness and negligence in failing to reasonably care for said cattle under the circumstances, known to the plaintiff to be then and there existing, was the direct and proximate cause of plaintiff’s loss and injury. Instruction No. 10 was therefore properly given to the jury.
While the evidence did not disclose that the plaintiff himself knew of the trespass at the time he unloaded the cattle from Minnesota, his foreman and also his employee, George Kueck, knew of the excavation for the sewer ditch and manhole in the pasture and near the gate where the plaintiff’s cattle were pastured. This knowledge on their part was definitely within the scope of their employment and the jury would be justified in finding from the evidence that they were the agents of the plaintiff and their knowledge was equivalent to knowledge on the part of the plaintiff.
• The plaintiff objects to the last sentence of Instruction No. 11— “Unless you find for the plaintiff on all of the above necessary elements then you shall return a verdict for the defendant.” It is argued this leaves the jury with the impression that if the plaintiff had not sustained the full amount of damages alleged — that the plaintiff had sustained only a partial damage — they would still have to find for the defendant. This is untenable. The instruction is clear, precise and not misleading. It must be assumed that a jury is reasonably intelligent.
The plaintiff requested the trial court to give a number of special instructions which it refused. Some of these instructions became immaterial upon the issues ultimately submitted to the jury and the others were given to the jury in substance. The trial court gave all the instructions necessary to furnish guidance to the jury in their deliberations and to aid them in arriving at a proper verdict. The refusal to give a requested instruction even though it states the law correctly, does not constitute either error or reversible error if it is substantially covered by the instructions given, or if everything in the requested instruction which the party is entitled to have given has already been given by the court in other instructions. Thus, it is not error to refuse special instructions, where the general instructions are sufficiently broad to enable the jury fully to understand the law of the case. (53 Am. Jur., Trial, § 527, p. 424; Wilson v. Walt, 138 Kan. 205, 25 P. 2d 343, 89 A. L. R. 473; and Hayes v. Nutter, 98 Kan. 75, 157 Pac. 428, 2 A. L. R. 365.)
The trial court submitted two verdict forms to the jury. The jury by mistake completed both verdict forms and returned them into court. The one form indicated that the jury had found for the defendant on each count of the petition. The other, intended as a verdict form should the plaintiff be entitled to recover, was worded so that the jury was required to fill in the amount which the plaintiff was entitled to recover on each of the six counts. In each of these six blank spaces was written the word “None.” The verdict which the jury returned was clearly apparent from both forms. The plaintiff’s objection has no merit. So long as the verdict manifests the intention and findings of the jury upon the issues submitted to them, it will not be overthrown merely because of defects in form. (53 Am. Jur., Trial, § 1035, pp. 715, 716; and 89 C. J. S., Trial, § 496, p. 157.)
The trial court excluded evidence offered by the plaintiff whereby he attempted to prove his damages by introducing bills for water purchased for the farm after the date he brought this lawsuit. He also attempted to introduce testimony with respect to the value of the water well to the farm. Objections to this evidence were properly sustained. The plaintiff’s interest in the land here in question was that of a lessee. He therefore could not recover for any injury to the land itself, except so far as it may have affected the value of the use of the land for the term for which he had it leased. The measure of recovery in such instance would be the difference between the rental value of the land immediately before and immediately after the injury complained of. (Elliott v. Railway Co., 8 Kan. App. 191, 55 Pac. 490.) This was not the theory upon which the plaintiff sought recovery by his petition.
The trial court excluded testimony of Dr. Twiehaus, a veterinarian, which related to the charges made for treating cattle of the plaintiff. The ruling on this point is assigned as error. The only portion of the record of trial certified to this court which could possibly relate to this point is the following: “He did not have with him a record of his charges. (At this point, the Court directed the witness to return in the morning with his record as to his charges.)” This is insufficient to acquaint the court with the question presented for review. Counsel for both parties are generous in their respective briefs to supply facts favorable to their position, but this is not a compliance with Rule No. 5 of the Supreme Court which provides in part: “In appealed cases the appellant shall print an abstract of the record which shall reproduce such portions thereof as it is necessary to read and in order to arrive at a full understanding of the questions presented for review, so that no examination of the record itself need be made for that purpose . . . ” (Emphasis added.)
Counsel for the plaintiff informs the court in his brief that his witness, Dr. Twiehaus, returned the next morning but failed to bring his records and the trial court refused to permit the witness to testify concerning an estimate of the charges made for treating plaintiff’s injured cattle. Counsel for the defendant state in their brief the witness testified that even with these records he could not identify his charges which relate to the cattle purchased in Minnesota and claimed by the plaintiff to have been injured. Even if the question were properly here, under the circumstances plaintiff would be in no position to take advantage of his failure to use the power of subpoena to produce his evidence, and a refusal'of the trial court to grant the plaintiff a continuance of the case after the second appearance of the witness was properly within the trial court’s power of discretion.
It is contended the trial court erred by admitting the diary and the diagram of the defendant’s witness, Andy Waldrop, to the jury room. Waldrop was a building inspector employed by Black and Veatch, consulting engineers, and in the fall of 1955 was assigned the duty 'of inspecting sewer lines in the Indian Creek project in Johnson County. As an inspector he oversaw the laying of the pipe across the premises in question. He kept a daily diary which was admitted into evidence as defendant’s Exhibit “A” with respect to the dates upon which the sewer ditch was dug upon the premises in question. Complaint is made that the entire diary was permitted to go to the jury room without any admonition that it be restricted to the days in question. The nature of the entries disclosed that on Wednesday, October 19th, they dug about 124 feet of sewer ditch on the property which the plaintiff had leased; on the 20th the contractor dug 251 feet and there were eighty-four joints of pipe laid; and on Friday, the 21st, the contractor dug 275 feet, the ditch was approximately seven feet deep, and there were ninety-two joints of pipe laid that day. The nature of other entries is not disclosed. It does not affirmatively appear from the record that the plantiff was prejudiced in any way by permitting the entire diary to go into the jury room.
Waldrop also prepared a diagram from which he testified. Subsequent to his .testimony other witnesses for the defendant used this diagram and plaintiff’s counsel referred to the diagram on numerous occasions in the cross examination of the defendant’s witnesses. He also referred to it repeatedly in his closing argument to the jury. This diagram was not admitted into evidence but was permitted to go to the jury room over objection by counsel for the plaintiff. For all practical purposes this diagram, was introduced in evidence and the objection is regarded as hypercritical. This diagram became a necessary part of the witnesses’ testimony, to go to the jury as such. It was not used as independent testimony but only to explain the testimony of the witness. It could have been formally introduced in evidence. The diagram so used was only to show what the witness testified to, and would not corroborate the testimony in the least. It was made to illustrate or explain his oral evidence. The use of the diagram in this way was proper and the fact that the trial court permitted it to be taken into the jury room is not shown to have prejudiced the plaintiff in any way. (See Hilker v. Agricultural Bond & Credit Corporation [Tex. Civ. App.], 96 S. W. 2d 544; Blazinski v. Perkins, 77 Wis. 9, 45 N. W. 947; and Cudahy Packing Co. v. Skoumal, 125 Fed. 470.)
The plaintiff contends the jury verdict is contrary to law and the evidence of the case and that the court erred in overruling his motion for a new trial. There is no dispute that the plaintiff’s cattle had been injured in some manner. The plaintiff introduced evidence attempting to prove that the cattle were injured by falls into the excavation dug by the defendant and in coming into contact with the machinery of the defendant. The defendant’s witnesses all testified that there were no signs of cattle falling into the excavation. They said that the excavation was barricaded and that there was room for the cattle to go by the excavation from the southwest gate into the pasture. Throughout the discussion above numerous glaring defects in the plaintiff’s evidence were noted. Precisely what the jury found with respect to the evidence in the case is not disclosed by the record. No special questions were submitted to them for answer. It may be fairly said from the evidence presented in the record the jury would be justified in finding that no grass remained at the end of a dry grazing season for the plaintiff’s cattle to pasture, and therefore plaintiff had no need for use of the pasture through which the sewer ditch was dug at the time his cattle were injured. Under these conditions the cost of feeding the cattle would not be attributable to the trespass. The plaintiff, having full knowledge of the trespass through his agents, was bound to mitigate damages by keeping his cattle away from the excavations. Had he done so there would have been no injury to the cattle and no veterinarian expenses attributable to the trespass. Likewise, it was within the evidence for the jury to find that the difficulty with the water supply on the premises was not attributable to the trespass, but .to the dry season.
Other specifications of error not specifically treated in this opinion have been fully considered and rejected. Some have become immaterial by reason of the disposition made of other points of law fully considered herein. Others are so trivial as to warrant no mention, and even though technical errors may have been committed, they do not affirmatively appear to have prejudicially af fected the substantial rights of the plaintiff. Upon the whole record it appears that substantial justice has been done by the judgment of the trial court. (G. S. 1949, 60-3317.)
The judgment of the trial court is affirmed.
Robb, J., concurs in the result. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This was an action to foreclose a transporter’s lien on an oil pipe line situated in various counties in the state of Kansas pursuant to G. S.T949, 55-212, 213 and G. S. 1957 Supp. 55-214.
For the purpose of identifying the parties, the appellants, Arapahoe Pipe Line Company, a corporation, and Sinclair Pipe Line Company, a corporation, are referred to as Arapahoe, and Sinclair, or as appellants. The appellee, J. A. Rodgers, plaintiff below, is referred to as Rodgers. The defendant, Enamelex Corporation of Texas, a corporation, is referred to as Enamelex. Since it filed no appearance or pleading in the district court, Enamelex is not involved in this appeal.
Trial was by the court which found that Arapahoe purchased materials constituting oil-field equipment as defined in G. S. 1949, 55-212 at a base price in Kansas City, Missouri, plus the transportation rate to destination points along its pipe line then under construction, for delivery as directed by Arapahoe; that for the purpose of delivering the materials at points of destination, Enamelex was the authorized agent of Arapahoe, and that Rodgers, under an express contract with Enamelex, transported and delivered such materials to destination points and that he was entitled to a transporter’s lien against the whole of said pipe line in the state of Kansas pursuant to G. S. 1949, 55-212 and 213, which should be foreclosed. Judgment in rem in the amount of $7,013.80 was entered in favor of the plaintiff in harmony with those findings, and the defendants have appealed.
The case was here in 1957 (Rodgers v. Arapahoe Pipe Line Co., 181 Kan. 579, 313 P. 2d 740). In the interest of brevity, the pleadings of the parties will not be referred to except to say this court determined that Rodgers’ petition stated a cause of action, and the question of a supplier’s authority as the agent of the purchaser, to contract with a transporter to entitle him to a transporter’s lien under G. S. 1949, 55-213, was one of evidence and not of pleading.
Pertinent portions of the evidence are quoted and summarized: In August, 1954, Arapahoe was constructing a pipe line in the states of Kansas and Colorado, running from a point near Sterling in Logan County, Colorado, to a point near Independence in Montgomery County, Kansas. In constructing the pipe line, Arapahoe used asphalt enamel and primer to coat and protect the line.
On July 23, 1954, C. Fred Brehmer, purchasing agent for Arapahoe, placed the following purchase order with Enamelex, which reads in part:
“Arapahoe Pipe Line Company
Box 460
Independence, Kansas
“Date 7-23-54 Reg. No. A-34 Order No. 8
To: Enamelex Corp of Texas
P. O. Box 18271
Houston, 23, Texas
Please furnish the following articles subject to all conditions printed hereon including reversé side, and send invoice in Triplicate with Bill of Lading and/or Express Receipt or freight bill to support transportation charges to Purchasing Department, Box 460, Independence, Kansas, on date of shipment, and ship to:
Abapahoe Pipe Line Company
At Will Advise ■ c/o Via
F. O. B. Terms Charge Delivery
Shipping Point
Equal W/Kansas K of 1 % See Below
City Truck Rate 10 days
To Destination
Approx. 2700 tons pipe line enamel (X-7510) ................ 40.00 Ton
Approx. 16500 Gals. Primer for Above .....'................. .55 Gal
Destinations and Routing to Be Furnished Later.
Advise When You Can Commence Shipments — How Many Tons per Day You Can Ship, and When You Will Complete Order.”
Insufficient materials having been ordered, a second purchase order dated September 21, 1954, was placed to obtain the balance of materials necessary to finish the job. That order is not set out since it is substantially the same as the first with respect to shipping point, terms, charge and delivery which were to “Apply to Destination.” The only significant difference was that asphalt enamel was priced at $10 a ton rather than $40 a ton. Brehmer testified that the orders placed with Enamelex were “blanket orders against which shipping orders would follow,” and that blanket orders were placed on urgent jobs to establish mainly the base price of the product so that a supplier could ready itself with the amount of materiál required. On July 27, 1954, three days after he placed the first order, Brehmer wrote Enamelex referring to the purchase order of July 23, 1954, and set forth the various destinations in Kansas and Colorado and listed the various tons of enamel and gallons of primer to be shipped to those destinations on that order.
On August 9, 1954, at Houston, Texas, Enamelex and Rodgers entered into two separate written contracts whereby Rodgers leased to Enamelex for a period of one year, two motor trucks and shop-built trailers owned by him and located at Houston. The contracts provided that Enamelex would have complete control of the vehicles; would employ drivers to operate them, and that they would move solely at the direction of Enamelex to pick up and unload orders for the benefit of Enamelex. Rodgers was to receive .23^ a mile, and Enamelex was to carry public liability and property damage insurance to cover the equipment leased in such amounts as would conform to the laws of any state in which the vehicles might operate. In addition, necessary and ordinary repairs and all fuel necessary to operate the trucks were to be furnished by Enamelex.
Rodgers testified that when the written contracts were executed he was told by an officer of Enamelex that Arapahoe was budding a pipe line in Kansas and Colorado and that Enamelex wanted drivers and trucks to haul pipe coating to be used to coat the pipe line. Further, that after the contracts were executed, Enamelex orally employed him at $40 a week to drive one truck, and directed him and his son, whom it employed to drive the other truck, to report to Kansas City, Missouri, and there contact a named asphalt company; and, that “the pick up point on this job would be Kansas City, Missouri.”
Rodgers further testified that on August 12, 1954, he commenced hauling pipe coating; that the first trip was to Merino, Colorado; that his son made the first trip and then Enamelex hired one Lindsay who drove the other truck until all deliveries were made along the pipe line; that each truck made some seventeen trips and traveled approximately 15,800 miles; that each delivery was made pursuant to instructions from Enamelex, and that the last trip was made October 26, 1954, to Collyer, Kansas. Further, that after the Collyer delivery, the trucks were driven to Texas, where, on November 5, 1954, Enamelex released and surrendered all its right, title and interest in the two trucks and trailers under the written contracts of August 9, 1954, and that he accepted return of the vehicles and agreed that upon receipt of a check covering the period from September 30, 1954, through October 31, 1954, he would be paid in full all compensation due him under the terms of the leases and that he would release and hold harmless Enamelex from any claim thereunder. Rodgers testified, however, that Enamelex made no accounting to him nor paid him the amount due for that period.
Brehmer was a witness for both Rodgers and the appellants. When asked the meaning of the language “shipping point equal W/Kansas City truck rate to destination” contained in the order of July 23, he stated that “the F. O. B. point as it is written means that a supplier can ship from any point by any means as long as ■the consignee only pays the truck rate from Kansas City to destination.” He testified that he at no time issued instructions to Enamelex as to the movement, either by rail or by truck, of the material; as to the conduct of the drivers, if moved by truck, or any other matters pertaining to the movement of the material. He further testified that he was not aware Rodgers was hauling any pipe coating, and that he had never heard of Rodgers nor paid any moneys to him nor gave him any shipping instructions. When asked if Enamelex invoiced Arapahoe for cost of material plus the cost of shipping, Brehmer said, “the billing was on a delivered price basis.”
C. E. Dickey, vice president of Arapahoe, testified that he was assistant project manager in constructing the pipe line; that Arapahoe did not authorize Enamelex to act for and on its behalf in any capacity; that the only relationship existing between Arapahoe and Enamelex was that of buyer and seller; that Enamelex billed Arapahoe under the purchase orders “Via Enamelex Truck, F. O. B. Destination”; that it was his impression Enamelex was hauling the material since he saw several trucks during the hauling operations with big “Enamelex Corporation” signs painted on the sides, and assumed they belonged to Enamelex; that the materials ordered from Enamelex were delivered to the pipe line and used in its construction, and that Arapahoe paid Enamelex for all the materials and freight. Further, that freight was “X’d as freight paid” on the invoice, and that he assumed the invoice included freight to destination because penciled notations showed that the cost of material and freight charged equaled the total amount billed, and that was the usual practice of handling invoices.
Since this appeal involves an alleged transporter’s hen based upon G. S. 1949, 55-212, 213 and G. S. 1957 Supp. 55-214, we quote pertinent parts of G. S. 1949, 55-213:
“Any person who transports or hauls oil-field equipment under express contract with the owner ... or with the trustee, agent, or receiver of any such owner, shall have a lien upon interest of such owner in the oil-field equipment so transported and hauled ...” (Emphasis supplied.)
It is clear that before Rodgers can establish a transporter’s hen under the statute, he must allege and prove an express contract with ■ the appellants, or with Enamelex as agent for the appellants, to transport oil-field equipment. It was settled in the former appeal that the materials transported were oil-field equipment within the meaning of the statute. Since Rodgers makes no contention that he had an express contract with the appellants and it being conceded he had such a contract with Enamelex, the question presented is: Does the evidence establish that Enamelex was the agent of Arapahoe to deliver the pipe coating?
The appellants offered no evidence to contest any item set forth in Rodgers verified lien statement, nor do they here assert that it was not properly filed and written notice served in accordance with the statute. They principally contend that the evidence was wholly insufficient to support the trial court’s findings that, for the purpose of delivering the pipe coating, Enamelex was the agent of Arapahoe, and that Rodgers, under express contract with Enamelex, transported and delivered such materials.
Rodgers makes two contentions': First, that Enamelex was the agent of Arapahoe by implication as well as by direct order; and second, that for lien purposes, Enamelex was the agent of Arapahoe by operation of law. In support of his first contention, Rodgers argues that Arapahoe constructs and operates pipe lines, and that Enamelex manufactures pipe coating materials; that neither is in the transportation business, and that he sold transportation to deliver the materials in question. Further, that as a condition for receiving Arapahoe’s orders, Enamelex was to make transportation arrangements which it did through its contracts with him; that Arapahoe’s orders clearly show the pipe coating was based on prices F. O. B. Kansas City, or shipping points equal thereto; that Arapahoe was to pay the truck rate from Kansas City to destinations furnished by it, and that when the materials were loaded at Kansas City, title passed to Arapahoe, making Enamelex Arapahoe’s agent for the purpose of delivering the materials.
As preliminary to discussing the contentions of the parties, we note that actual agency may be either express or implied (Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803; Kennedy v. Atchison, 162 Kan. 694, 178 P. 2d 987), and where the relationship of principal and agent is in issue, the party relying thereon to establish his claim or demand has the burden of establishing its existence by clear and satisfactory evidence (Dunlap v. Denison, 83 Kan. 757, 112 Pac. 598; Greep v. Bruns, supra).
To determine whether there is evidence sufficient to show actual agency, the record must be examined to ascertain if’the one sought to be charged as principal has delegated authority to the alleged agent by words which expressly authorize him to do the delegated act. If there is evidence of that character, the authority of the agent is said to 'be express (Greep v. Bruns, supra; 2 Am. Jur., Agency, § 86, p. 70). On the other hand, if there is no express authorization, the evidence must be examined to determine whether the alleged agent possesses implied powers. In that connection, the test is whether, from the facts and circumstances of the particular case, it appears that there was at least an implied intention to create an agency, in which event the relation may be held to exist, notwithstanding a denial by the alleged principal, and whether or not tihe parties understood it to be an agency (Greep v. Bruns, supra; 2 C. J. S., Agency, § 23, p. 1045).
Our review of the record convinces us there is nothing to indicate that Enamelex was the express agent of Arapahoe to deliver the pipe coating; hence, we examine the evidence to determine whether Enamelex was the agent of Arapahoe by implication. In order for Rodgers to establish such an agency, the terms of the purchase orders must have contemplated sale of the pipe coating at Kansas City, Missouri, vesting title in Arapahoe at that point. In this connection, Rodgers argues that when the pipe coating, based on price F. O. B. shipping point, was placed on the trucks, a completed sale occurred and title to the materials passed to Arapahoe notwithstanding Enamelex was to handle the details of the actual hauling arrangements. He further argues that Arapahoe’s reimbursement of the cost of transporting the pipe coating further substantiates Enamelex’s implied agency.
We think it manifest from the purchase orders and the circumstances developed by the testimony that the contract between Enamelex and Arapahoe required Enamelex to deliver the pipe coating To Destination, and that title thereto did not pass until it reached that point. The purchase orders obligated Enamelex to furnish pipe coating “F. O. B. shipping point equal W/Kansas City truck rate To Destination,” and billings to Arapahoe were on a “delivered price basis.” Thus, cost to Arapahoe under the purchase orders and Enamelex’s billings was a total of the price of the pipe coating, plus transportation charges to destination. This conclusion is in harmony with our holdings that where the contract provides for a sale F. O. B. the point of destination, the title is generally held not to pass in the absence of a contrary intention between the parties, until the goods have been delivered at the point designated. (Brewing Association v. Nipp, 6 Kan. App. 730, 50 Pac. 956; Hurst v. Manufacturing Co. 73 Kan. 422, 85 Pac. 551; Wing v. Mid-Continent Seeds, 170 Kan. 242, 225 P. 2d 78; State of Oklahoma, ex rel., v. H. D. Lee Co. 174 Kan. 114, 254 P. 2d 291; Custom Built Homes Co. v. State Comm. of Rev. and Taxation, 184 Kan. 31, 334 P. 2d 808). See, also, Hunter v. Kramer, 71 Kan. 468, 80 Pac. 963, wherein it was said:
. . The rule, as stated at page 1050 of volume 24 of the American and English Encyclopedia of Law, is as follows:
“ If by the terms of the contract the seller is required to send or forward or deliver the goods to the buyer, the title and risk remain, in the seller until the transportation is at an end or the goods are delivered in accordance with tire contract, after which time the title is vested in the buyer’.” (1. c. 474.)
Furthermore, delivery was made by Enamelex’s trucks, but, insofar as Arapahoe was concerned, could have been made by rail. Moreover, Enamelex was not required to ship the pipe coating from Kansas City. Under the purchase orders it could have shipped the materials from Houston, Chicago, Omaha, Denver, or any other point. Rut, had shipment been made from those points, cost to Arapahoe would have been the same, that is, the cost of materials plus freight charges equal with Kansas City truck rate To Destination.
We think it clear that under the terms of the purchase orders and the parties performance thereunder, Enamelex was required to deliver the pipe coating To Destination where title then passed to Arapahoe. Consequently, the contention of Rodgers that title to the materials passed at F. O. R. shipping point Kansas City, Missouri, and that Enamelex was the agent of Arapahoe for the purpose of delivering the materials, cannot be sustained.
Rodgers strenuously argues that under the facts and circumstances Enamelex was the agent of Arapahoe, for lien purposes, by operation of law, and relies principally upon Adair v. Transcontinental Oil Co., 184 Kan. 454, 338 P. 2d 79. The point is not well taken. It was Enamelex’s duty under the purchase orders to deliver the pipe coating — not Rodgers. Under their written contracts, Enamelex had complete control and direction of the trucks, and, under their oral agreement Rodgers was at most an employee of Enamelex. Under that arrangement it cannot be said that, for lien purposes, the pipe coating was placed in Rodgers’ hands for delivery, as the agent of either Enamelex or Arapahoe. Refore Rodgers can bring himself within the statute (it being conceded he had no express contract with Arapahoe), it must appear from the facts and circumstances that Enamelex was the express or implied agent of Arapahoe. As we have seen, Enamelex was not the agent of anyone, particularly Arapahoe.
The word “agent” as used in G. S. 1949, 55-213, authorizing the agent of the owner of oil-field equipment and materials to contract with a transporter to transport or haul such equipment, has reference to an express agency between the owner and the agent, or one which arises by implication from the facts and circumstances of a particular case. In other words, the statute contemplates that the agency relation authorized to exist must arise from the acts and conduct of the parties themselves. In this case no such relationship was shown to exist, and we cannot say that one was created by operation of law.
We have examined the Adair case, supra, and other authorities cited by Rodgers, but make no extended review of them. They are of no assistance in answering the present question. The theme of each of them is that if work was done for the benefit of the lessor of real estate or the seller of oil and gas leases, and such person in fact received a benefit, then his interest is subject to lien and the lessee or buyer will be deemed to be an agent, for lien purposes, by operation of law. That is clearly not the situation here presented.
Finding no evidence which tends to support the trial court’s finding that, for the purpose of delivering the pipe coating, Enamelex was the agent of Arapahoe, we conclude that finding was erroneous and requires a reversal of the judgment. Accordingly, the judgment of the trial court is reversed with directions to enter judgment for the defendants.
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The opinion of the court was delivered by
Jackson, J.:
This was a workmen’s compensation case. Both the workmen’s compensation commissioner and the district court denied claimant a right of recovery and he appeals to this court.
There was no dispute as to the facts introduced before the commissioner as to how claimant suffered his injury, or as to the question of the amount of claimant’s disability. Respondent offered no evidence and did not dispute the facts shown by claimant’s evidence. The commissioner, and the district court on appeal, simply held as a matter of law that the accident occurred in the course of claimant’s employment but did not arise out of his employment.
Thus, the decision below was based upon an application of the law to an undisputed set of facts and this court has jurisdiction to pass upon that question (G. S. 1957, Supp. 44-556). This being true, such cases as Grow v. Musgrove Petroleum Corp., 184 Kan. 800, 339 P. 2d 75; Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370; Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372, have no application.
The facts shown in the record may be summarized as follows: Claimant was the manager of one of respondent’s filling stations; by the terms of his employment it was claimant’s express duty to take the receipts of the day to the bank for deposit near the close of each day’s business. On January 22, 1957, it was snowing heavily and the streets were very slick. Claimant left the station in his car with the company’s money sometime before 4:00 p. m. and proceeded by the most direct route toward the bank. It may be noted that the record shows that claimant was allowed company gasoline for the purpose of making these trips in his own car. The bank was closed at this time of day and claimant intended to place the company money in the night deposit box.
On his way to the bank, claimant found his forward progress stopped by a traffic jam where the street went up a hill. He seems to have stayed in his car for an hour or so waiting for the traffic to become unsnarled, but as the situation got no better and it was getting dark and his gasoline was getting low (we assume he kept the heater going), he got out of the car, locked up the money in the car, and went forward on foot to ascertain the cause of the trouble. He found a car driven by a woman had skidded across the street blocking all progress in either direction.
Claimant got in the stalled car and was able to turn it and drive it up the hill with the aid of two other men who helped by pushing the car from the rear. The traffic was thus free to proceed and claimant walked toward his own car. Shortly before reaching it, an automobile approaching him from behind, honked and caused claimant to jump, lose his footing and fall on the ice. He fell with his weight on his right arm. Although his arm hurt considerably, claimant got in his car and drove to the bank and deposited the company money. That done, he drove back to his station and went into the rest room to remove his shirt to see how badly his arm was hurt. The amount of claimant’s disability is set out in the commissioner’s findings and as has been said is nowhere challenged. Therefore, we need not set those matters out in this opinion.
It would seem that respondent relies to a great extent upon the case of Sellers v. Reice Construction Co., 124 Kan. 550, 262 Pac. 19, to uphold the trial court’s decision to the effect that claimant’s injury did not arise out of his employment. In that case, the workman was employed by a construction company engaged in digging a ditch alongside a road, and near a railway. The foreman had parked his car on the side of the road. About 1:25 p. m. of the day in question, the workman noticed a truck loaded with timbers belonging to a stranger coming down the road. The workman feared the truck would hit the foreman s car, and therefore went to the foreman and asked for the keys saying that he would move it out of the dangerous position. The foreman believed that the car was safe, but finally gave up the key. The workman got in the car, drove it up on the railway track where it was hit by a train, the car wrecked and he was killed. The court said in part in the action to recover workmens compensation:
“Sellers was employed to do the construction company’s work, not to look after Jacob’s car, and the course of his employment was broken by his voluntary withdrawal to do an act which bore no relation to his employment and which took him away from it. Leaving these obstacles to recovery of compensation at one side, the accident did not arise out of the employment.
“The phrase ‘arising out of . . . employment,’ suggests a casual relation between employment and injury. The verb ‘arise’ has a meaning which takes note of circumstances viewed as results, and the prepositional pirrase ‘out of has a meaning of ‘from (something) as a cause.’ (Oxford English Dictionary.) Prompted by the suggestion, the courts frequently define the phrase by stressing the element of causation.”
The above case does not seem to be very close, to the situation which existed in the case now before the court. As stated in the Sellers case, in order for an injury to arise out of the employment of the claimant it is necessary that there be some causal connection between the employment and the accident (Benson v. Railway Co., 104 Kan. 198, 178 Pac. 747, 10 A. L. R. 1165; Stapleton v. State Highway Comm., 147 Kan. 419, 76 P. 2d 843; Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701; Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402).
In all of the above cases this court approved a finding that the workman’s injury arose out of his employment. It would appear that in each of them, the causal connection between the employment and the injury was no greater than in the case at bar. Benson, a railway employee, started a fire by using kerosene in violation of a rule of his employer. Stapleton was moving his household goods from one town to another at the employer’s direction and was killed in a highway accident. Bailey, the employee of a subcontractor, was using a freight elevator in order to reach a floor in a hotel where he was to work. Burk was injured during a rest period when his chair slipped causing him to fall.
The appellee argues of course that the appellant was merely helping the woman driver in this case and was therefore not engaged in his employment, but that seems too narrow a view of the situation. By helping the other driver, appellant was able to open his own way to the bank and thus deposit his employer’s money. It would seem that he used quite a reasonable course to accomplish the purpose of his employer, and it is not contended appellant was violating any rule of his employer.
In 1 Larson, Workmen’s Compensation 407, sec. 27.21, it is said:
“If the ultimate effect of claimant’s helping others is to advance his own employer’s work, by removing obstacles to the work or otherwise, it should not matter whether the immediate beneficiary of the helpful.activity is a co-employee, an independent contractor, an employee of another employer, or a complete stranger.”
We would also direct attention to the same work, last cited, at page 427, sec. 28, as to acts performed by an employee in an emergency. It should be remembered that appellant had in his care a rather large amount of his employer’s money which employer wished to get into the safety of a bank. It was cold and getting dark. The record shows the money was insured only while en route to the bank.
The case of Wetlaufer v. Howse, 146 Kan. 500, 71 P. 2d 879, involved the care of an injured truck belonging to the employer, and the return of another borrowed truck without express authority from employer.
In Oklahoma Railway Co. v. Cannon, 198 Okla. 65, 176 P. 2d 482, an injury to a street bus driver was found to arise out of his employment when he helped a motorist to extricate himself from a guy wire causing the car to be stalled in a loading zone. It was contended that the bus driver was violating a rule of the company in going to the aid of the motorist.
In Leary v. Dept, of Labor and Ind., 18 Wash. 2d 532, 140 P. 2d 292, a gatekeeper was injured in pushing a stalled car from in front of the employer’s .gate, and it was held his injury arose out of his employment.
In Transpon Co. of Texas v. Arkansas Fuel Oil Co., 210 Ark. 862, 198 S. W. 2d 175, an employee went to help a truck stalled on the highway which was thought to be loaded with merchandise for the employer. The employee was killed. The lower court had rendered a judgment against the widow’s claim for workmen’s compensation and this was reversed by the supreme court with directions to enter judgment for the claimant since the accident and death arose out of the employment.
Attention is further directed to 58 Am. Jur. 733, sec. 226, where it is said in part:
“Moreover, the tendency of the later cases is toward a more liberal construction of the term ‘arising out of the employment,’ as applied to street risks, and in the majority of the jurisdictions the recovery of compensation is now permitted where the employee receives a street or highway injury while in the course of his employment, although the employment may not have required his presence on the street or highway continually, but only occasionally or even only on the one occasion on which he was injured, and notwithstanding the fact that others engaged in their own affairs are more or less exposed to the same risks. A ‘street peril’ within the operation of this rule, is a peril which is peculiar to the use of a street or other public way. The term is generally held to include perils inherent in or arising out of some particular local condition, and those due to the action or operation of human, animal, or mechanical instrumentalities incidental to the use of the street, as distinguished from those resulting directly from what is commonly referred to as an act of God, or from some other occurrence of a general character which is as likely to happen elsewhere. Under this rule, compensation has been allowed for injuries by falling, due to defects in the street, by collision with passing vehicles, by assault, by attacks by animals, and by the overturning of a vehicle in which the employee was riding. An injury to an employee traveling upon a street or highway by being struck by a falling tree has also been held to be compensable as resulting from a ‘street hazard’ even though the falling of the tree was caused by a severe gale or windstorm.”
We believe the court erred in the judgment below based upon undisputed facts. The judgment is reversed with directions to proceed in the case in accord with the views expressed herein. It is so ordered.
Price, J., dissents. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for a mandatory injunction in a labor case. From an order of the trial court overruling defendant’s demurrer to plaintiffs’ petition, defendant appeals.
The plaintiffs (appellees), Local Lodge No. 774 and District Lodge No. 70 of the International Association of Machinists, A. F. L.C. I. O., commenced this action against the defendant (appellant), the Cessna Aircraft Company, in the district court by filing a petition wherein they alleged they were unincorporated labor organizations as defined by G. S. 1955 Supp., 44-802, and were authorized to bring this action under G. S. 1949, 44-811; that Local Lodge No. 774 is the collective bargaining labor organization representing the employees of the defendant on all matters relating to grievances, labor disputes, wages, rates of pay, hours of employment and/or conditions of work of the members of its organization as a whole and of each of its individual members; that District Lodge No. 70 is its parent organization and bargaining agent, having its principal offices in Wichita; that the International Association of Machinists, A. F. L.-C. I. O., is an unincorporated association of local labor unions and is affiliated with the A. F. L.-C. I. O., the parent organization, which is an association of national and international labor unions and is the duly recognized, sole collective bargaining agency for defendant’s employees, having been so designated by the National Labor Relations Board under date of July 13, 1940, and that at all times material thereto was and is acting as such collective bargaining agent.
It was further alleged that the defendant was a corporation duly organized and authorized to do business in the state of Kansas, with its principal place of business in Wichita; that on June 30, 1955, plaintiffs and defendant entered into a collective bargaining agreement, which was in effect at all times herein and which provided in pertinent part as follows:
“Article VI.
“(c) In case of notice of dismissal or a suspension, any employee, if he feels unjustly aggrieved thereby, shall within forty-eight (48) hours give written notice to the Personnel Director’s Company Office, or to the Union Shop Chairman, to the effect that he has been unjustly dealt with; such statement shall include the reasons for his request and why his dismissal or suspension be given further consideration. The Personnel Director, or whomever he may designate, and the Union Shop Chairman shall determine within a period of forty-eight (48) hours whether his written request shall constitute a case and be subject to the method of adjusting grievances as herein provided. If the Personnel Director, or whomever he may designate, and the Shop Chairman are unable to reach an agreement, the employee shall be notified and his written notice shall be referred to the Grievance Board.
“(d) Grievance Board.
“The Union and the Company will each select two members who are employees of the Company in each Wichita plant. These four shall be known as the Grievance Board for each plant. One member of each board shall be selected by them as Chairman. The Chairman shall be rotated every four months. Thus, if a representative of the Union is selected as Chairman for the first four months, a representative of the Company shall be selected as Chairman for the next four months. The duties of the Boards shall be to receive and attempt to settle all grievances or disputes which have not been adjusted as provided for in Article VI, Section (b), paragraphs (b) and (c).”
“Article IX.
“(j) When consistent with efficiency, production and organization, the Company will favor transfer of employees to more desirable shifts in their respective departments before filling openings with new employees. In the selection of employees for such transfers, qualified seniors shall be given first consideration.”
“Article XIV.
“There shall be no discrimination or intimidation against any employee who may be selected to represent himself or other employees on committees or for engaging in other legitimate Union activity.”
Plaintiffs alleged that John W. Wink was hired by defendant in November, 1954, and subsequently assigned to department No. 160, where he worked continuously until May, 1956, at which time he developed dermatitis from contact with fiber glass and plastics used in the department; and, as a result, company, doctors recommended his transfer to a different department; that on October 1 he was transferred to department No. 137, where his condition improved and where he continued to work until approximately No vember 1, at which time he was placed on leave of absence to work for plaintiffs in an organizational drive being conducted in defendant’s plant; that on November 19 he returned to his employment and was assigned back to department No. 160, and shortly thereafter began again to develop dermatitis, which condition became increasingly worse and necessitated his taking a leave of absence, from December 7, 1956, to January 3, 1957, to seek and obtain medical treatment. On January 3, he again reported back to work and was informed by defendant’s personnel director, Mr. Worford, thát it would be necessary for him to accept another leave of absence and that he could not be assigned to any place in the plant other than department No. 160. Wink advised Worford it would be impossible for him to take another leave of absence and was advised, in turn, that if he did not he would be terminated. He was instructed to return the next day.
January 4, Worford gave Wink his termination papers, indicating he had “quit or resigned,” and on the same day Wink executed and delivered a grievance in writing to the personnel director’s company office, which, omitting the formal parts, reads as follows:
“Cause for Complaint: I am contesting the action that has been instituted against me by the Cessna Aircraft Company. I have been discriminated against in that 1 contacted a skin irritation or dermititis while employed at my trade at the Prospect Plant. I have had approximately three leaves of absence from the Company due to this condition. I have not been cleared up, but due to the complications of this dermititis I can no longer work in this department under the present conditions. Attempts to clean up the department in this respect was started several months ago but the results' are still not sufficient enough that I can work there without breaking out again. The Company offered a Final Assembly-job on Second Shift with a 3 grade cut at the time I went to the hospital on a leave. At this time the Company takes the position that there are no job openings, and I can accept no more leaves due to financial conditions. I am not receiving the consideration from the Company that I am entitled to under Article IX; Section J, and I am entering this grievance, citing' Article VI, Sect. C of the TJniop-Company Contract in that I have been unjustly aggrieved and am entitled to more consideration than I have received at the hands of the Cessna Aircraft Company. Also, there is reason to believe that the Company is in violation as regards Article XIV in my case. It is also my contention that there has been no sincere indication on the part of the Company to honor Article II of the contract as would apply in my case.” [Emphasis supplied.]
Thereafter, defendant notified the representatives and agents of plaintiffs that it did not consider Wink’s complaint a grievance and would- therefore refuse to submit it to the grievance board, and defendant has continued to so refuse. Plaintiffs alleged that these actions constituted a violation of the collective bargaining agreement between defendant and plaintiffs, and, as a result, plaintiffs sustained and are continuing to sustain irreparable damage for which they have no adequate remedy at law, and they were therefore entitled to bring this action under G. S. 1955 Supp., 44-809 and 44-814.
Plaintiffs prayed that the defendant be restrained and enjoined from its violation of the collective bargaining agreement, in that it be required to submit Wink’s grievance to the grievance board; that it be required to follow the grievance procedure set out in the agreement, and that it be required to comply with the findings and decisions of such board as provided in the agreement.
Defendant filed a demurrer to the petition on the grounds that (1) the court had no jurisdiction of the subject of the action, (2) the plaintiffs had no legal capacity to sue and the action was not brought in the name of the real party in interest, and (3) the petition did not state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant perfected this appeal.
Defendant contends the district court was without jurisdiction of this controversy because the allegations of plaintiffs’ petition amount to a charge of unfair labor practice and Congress preempted the field on this subject and vested exclusive jurisdiction over such matters in the National Labor Relations Board. Plaintiffs, on the other hand, contend that this is simply an action to enforce the terms of a contract (collective bargaining agreement) and to compel the parties to such contract to recognize, adhere to and perform the duties and obligations contained therein, and that state courts have traditional and statutory jurisdiction to enforce it. The claim is that plaintiffs are entitled to maintain this action under the provisions of G. S. 1955 Supp., 44-809 (15), which make it unlawful for any person [defendant] to violate the terms of a collective bargaining agreement, and under G. S. 1955 Supp., 44-814, which allows an aggrieved party to enjoin such violations.
Of course, whether plaintiffs can maintain their action under our above-mentioned statutes is entirely dependent upon whether Congress pre-empted the field and vested exclusive jurisdiction in the National Labor Relations Board. This is, to say the least, a difficult question. We must start with the premise that where labor practices are either prohibited or protected by the Labor Management Relations Act, 1947, Congress has pre-empted the field in labor relations matters affecting interstate commerce and has vested exclusive jurisdiction in the National Labor Relations Board to determine such labor disputes. (Garner v. Teamsters Union, 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546; Guss v. Utah Labor Board, 353 U. S. 1, 77 S. Ct. 598, 1 L. Ed. 2d 601.) Some of our own decisions which recognize this principle are Friesen v. General Team & Truck Drivers Local Union No. 54, 181 Kan. 769, 317 P. 2d 366; Asphalt Paving v. Local Union, 181 Kan. 775, 317 P. 2d 349; Stieben v. Local Union No. 685, 181 Kan. 832, 317 P. 2d 436; Newell v. Local Union 795, 181 Kan. 898, 317 P. 2d 817. Our most recent pronouncement on the subject is Hyde Park Dairies v. Local Union No. 795, 182 Kan. 440, 321 P. 2d 564, wherein we said, at page 451:
“In determining, therefore, whether an activity is protected or prohibited under Sections 157 and 158 of the Act (29 U. S. C. A. §§ 157, 158) a state court need only to determine that the facts reasonably bring the controversy within the sections and if so should decline jurisdiction. In Weber v. Anheuser-Busch, Inc., supra [348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546], the court said:
‘. . . But where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed to come within the protection afforded by that Act, tlie state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance.’ (p. 481.)”
In this connection we must bear, in mind that essentially it is not within the power or competence of a court — state or federal — to determine whether an activity is in fact protected or prohibited by the federal Act. Ultimately, only the National Labor Relations Board can make this determination. (Weber v. Anheuser-Busch, Inc., supra; Garner v. Teamsters Union, supra; Hyde Park Dairies v. Local Union No. 795, supra, 451.) Moreover, the areas which have been held subject to state jurisdiction have generally involved injurious conduct which the National Labor Relations Board is without express power to prevent. (Hyde Park Dairies v. Local Union No. 795, supra, 453.) We need not here decide whether the ultimate determination as to whether a refusal on the part of the employer to adhere to the grievance terms of a collective bargaining agreement is protected or prohibited by the federal Act and rests within the jurisdiction of the National Labor Relations Board. A review of the petition and of Wink’s grievance complaint attached thereto clearly reveals that plaintiffs not only alleged a refusal to follow the grievance procedure but also alleged discrim ination under Article XIV of the contract because of union activities. It has been consistently held, under 29 U. S. C. A., § 158 (a) (3), that a discharge because of union activity is an unfair labor practice as a “discrimination in regard to hire or tenure of employment” over which the National Labor Relations Board has exclusive jurisdiction. (Swope v. Emerson Electric Manufacturing Co. [Mo.], 303 S. W. 2d 35, and cases cited therein.)
It is well settled that a state may not enjoin under its own labor statute conduct which has been made an unfair labor practice under the federal statutes (Weber v. Anheuser-Busch, Inc., supra, 474, 475; Asphalt Paving v. Local Union, supra, 781), nor may a plaintiff characterize an act which constitutes an unfair labor practice as a “contract violation” and thereby circumvent the plain mandate of Congress that jurisdiction of such matters be vested exclusively in the National Labor Relations Board and that federal and state trial courts are without jurisdiction to redress by injunction, or otherwise, unfair labor practices. (United Packing House Workers v. Wilson & Co., 80 F. Supp. 563, 569.) See also Textile Workers Union of America v. Arista Mills Co., 193 F. 2d 529; Amazon Cotton Mill Co. v. Textile Workers Union, 167 F. 2d 183. If the rule were otherwise, then federal or state courts could assume jurisdiction over all types of unfair labor practices under the guise of enforcing the terms of the collective bargaining agreement, provided the agreement contained terms governing such matters, and could thereby circumvent the plain mandate of Congress.
It follows that the judgment of the trial court is reversed and the case is remanded with directions to sustain defendant’s demurrer to plaintiffs’ petition.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a negligence action for damages arising out of an intersection collision between two trucks on the 17th day of October, 1955, in Neosho County, Kansas.
The primary question presented is whether the plaintiff’s evidence establishes contributory negligence as a matter of law.
The plaintiff, Mike Reda, Jr., in his amended petition seeks damages for personal injuries to himself and for damages to his truck alleging negligence on the part of the defendant. The defendant, Morris Lowe, by his answer denies generally the allegations of the plaintiff’s petition and pleads contributory negligence of the plaintiff as a defense. He further cross-petitions seeking damages for the permanent injuries to himself and for damages to his truck alleging negligence on the part of the plaintiff.
With issues joined the case was tried to a jury and resulted in a verdict for the plaintiff and against the defendant in the sum of $7,715.25 with interest and costs. The defendant appeals.
The intersection in question is formed or embraced within the prolongation of the lateral boundary lines of two gravel roads which adjoined U. S. Highway No. 59. This highway approaches the intersection in question from the south and leads from the intersection in question to the west. The highway itself is blacktop and the distance from the blacktop highway, which curves around the corner, to the entrance of the intersection in question from both the south and the west is approximately 100 feet. ' The gravel roads forming the intersection were approximately of equal width and were described as from 18 to 20 feet in width.
The plaintiff’s evidence, which consists solely of the plaintiff’s testimony insofar as the record before this court discloses, indicates that he was 55 years of age at the time of the accident and engaged in the business of distributing beer with a place of business at Pitts-burg, Kansas. At approximately 5:30 p. m., on October 17, 1955, the plaintiff was traveling east on U. S. Highway No. 59 approaching the intersection in question. The visibility was good, the day clear and the road dry. At this particular time and place the plaintiff approaching the intersection at about 25 miles per hour did not follow the blacktop highway which curved around, the comer and went to the south, but proceeded directly east off the blacktop and into the gravel intersection. The plaintiff testified that as he started into the intersection the defendant’s pickup truck approaching from the south on the blacktop highway toward the intersection “flew over the black top” coming at “a terrible speed” which was described by the plaintiff in his testimony at different speeds rang ing from 50 miles per hour to 80 miles per hour. ,He related that the two front wheels of the defendant’s truck left the ground something like one and one-half feet. He testified:
"... I was about the center of the intersection; I gave him the horn to bring attention to him, and proceeded ahead as I was already past the intersection, and at a little bridge, east, I felt the bump; it struck and it threw me against the bridge on the north side and as my truck came loose, his spun around behind me, . . .”
The plaintiff further testified that he had entered the intersection first and had just gotten through the intersection; that the defendant did not hit him going straight but curved with the plaintiff who was across the intersection.
At the close of the plaintiff’s testimony the defendant demurred to the evidence on the ground that the plaintiff’s evidence established that he was guilty of contributory negligence as a matter of law. This demurrer was overruled.
The defendant testified:
"... I was going home from my work at the Union Elevator at the time of the collision. I was traveling on the black top about 35 miles per hour. I ran off of the black top where the road curves to the left, but I slowed down because of the intersection there. I noticed a red and white truck coming from the west. He was into the curve. As I approach the corner, I looked to the east and saw nothing and by that time had run into the intersection and the truck hit mine. The Reda truck hit the front end of my truck on the left side in front of the left door. I entered tire intersection first and the front of my bumper was half way across when we were struck in the center lane of the east and west road. . . .”
He further testified:
"... I saw the Reda truck when it was on the black top. I seen him when I went on the curve. I thought he was going around 35.
“Q. That was when he was still on the black top on the curve; was he headed straight east?
“A. It looked like he turned and curved around and followed the black top.
“Q. That is when you last saw him?
“A. That is right.”
He also testified:
“. . . I did not honk my horn before the collision. At the speed I was going of 20 miles per hour, I believe that if I had applied my brakes at the distance of 15 to 20 feet south of the intersection I could have brought my car to a stop.”
Milford Hall was following approximately one-eighth of a mile behind the defendant on the highway at the time of the collision. He observed the collision and testified that the defendant’s speed was around 25 to 30 miles per hour; that the defendant slowed his truck down to 5 to 10 miles per hour when he left the blacktop; and that these trucks came together in their own line of traffic. This would establish the point of collision in the southeast quadrant of the intersection. This witness, who was the first to arrive at the scene of the accident, further testified:
“Mr. Lowe [defendant] said to me right after the accident that he did not see the truck and Mr. Reda [plaintiff] said he saw the Lowe truck but thought it was going to stop . . .”
He further testified there was no sign that Mr. Lowe applied his brakes.
Other evidence presented by the defendant is immaterial to relate. At the close of the defendant’s evidence the plaintiff demurred to the evidence of the defendant offered in support of his cross petition. This demurrer was overruled. The plaintiff then moved for a directed verdict which was also overruled.
Among the instructions given to the jury was the following:
“Instruction No. 9
“You are instructed that at the time of the collision referred to in this case there is in full force and effect the following statute of the State of Kansas:
“8-550: Vehicles approaching or entering intersections.
“(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.
“(b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. . . .
“You are further instructed in this connection that the right of way at an intersection is not an absolute and inflexible right but a relative right. Its main purpose is to demand care of motorists commensurate with the danger of collision. The right of way and the right to assume absence of negligence by others may not be invoked by one who has violated the rules of the road himself by recklessly driving into an intersection without previously maintaining a reasonably careful lookout from places where he might have seen an approaching vehicle, in a manner which makes it impossible to avoid injury to himself and others.”
The following special questions were submitted by the court and answered by the jury as follows:
“I. Did the truck driven by Mr. Reda enter the intersection before the truck driven by Mr. Lowe?
“Answer: Yes.
“2. Did Mr. Lowe see the Reda truck as it entered the intersection?
“Answer: No.
“3. If your answer to Question No. 2 is No, then what, if anything, prevented Mr. Lowe from seeing the Reda truck?
“Answer: Nothing.
“4. Do you find that Mr. Lowe was guilty of any negligence as alleged in the amended petition, which was the proximate cause of the collision?
“Answer: Yes.
“5. If your answer to the foregoing question is Yes, then state what act or acts of negligence Mr. Lowe was guilty of?
“Answer: Failure to observe truck.
“6. Where was the point of collision between the two trucks with reference to the East side of the intersection?
“Answer: Just west of east side.
“7. Do you find that each truck entered tire intersection at the same time?
“Answer: No.
“8. Where, with reference to the center of the intersection was the point of impact?
“Answer: South East.
“9. Do you find that plaintiff observed defendant’s truck prior to the collision?
“Answer: Yes.
“10. If you answer Question No. 9 in the affirmative, please answer the following;.
“(a) Where, with reference to the center of the intersection, was defendant’s truck when first observed?
“Answer: South.
“11. Please state the speed of the respective trucks when each left the black top highway and entered the gravel?
“Answer: Plaintiff’s truck: 30-35 m. p. h. Defendant’s truck: 30-35 m. p. h.
“12. Do you find that defendant looked both directions before entering the intersection?
“Answer: Yes.
“13. If your verdict is for plaintiff, please state of what act or acts of negligence you find the defendant guilty?
“Answer: Section A of Instruction No. 9.”
Although counsel for the defendant did not move for a directed verdict at the close of all the evidence presented in the trial court (Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295, and Ogilvie v. Mangels, 183 Kan. 733, 332 P. 2d 581), the defendant is entitled to a review of his demurrer to the plaintiff’s evidence by reason of the plaintiff’s' demurrer to the evidence of the defendant, which challenged the attention of the trial court to the sufficiency of all the evidence to go to the jury (Anderson v. Thomas, 184 Kan. 240, 336 P. 2d 821), and also by reason of the plaintiff’s motion for a directed verdict at the close of the defendant’s evidence, which likewise challenged the attention of the trial court to the sufficiency of all the evidence to go to the jury.
It has been held in ruling on a demurrer to the evidence that an appellate court does not weigh or compare contradictory evidence, but accepts all the evidence as true, gives it the benefit of all inferences that may properly be drawn therefrom, and considers only such portions thereof as are favorable to the party adducing it. To sustain a demurrer to the evidence the contributory negligence must clearly appear from the evidence introduced. (Haga v. Moss, Administrator, 181 Kan. 171, 311 P. 2d 281.)
In testing the sufficiency of evidence as against a demurrer, the evidence and the inferences that may be properly drawn therefrom ■ must be considered in the light most favorable to the party against whom the demurrer is directed, and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and impartial judgment, may reach different conclusions thereon, the demurrer should be overruled and the issue submitted to the jury. (Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, 337 P. 2d 1003.)
Furthermore, if the demurrer of a defendant to the plaintiff’s evidence is overruled, and he proceeds to introduce his own evidence, he may by his own evidence supply any deficiency which may have theretofore existed in the plaintiff’s evidence. At the close of all the evidence, its sufficiency to go to the jury must be determined by a consideration of both the evidence introduced by the plaintiff and the evidence introduced by the defendant. (Henks v. Panning, 175 Kan. 424, 264 P. 2d 483; Tuggle v. Cathers, 174 Kan. 122, 254 P. 2d 807; Lechleitner v. Cummings, 159 Kan. 171, 152 P. 2d 843; Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; and numerous other decisions cited in West’s Kansas Digest, Trial, § 418; Hatch-er’s Kansas Digest [Rev. Ed.], Appeal & Error, § 486, Trial § 167.)
The defendant’s contention is simply that a situation exists where two automobiles are approaching one another at a wide open intersection, where each of the drivers could see the other and yet plaintiff continued to drive his truck directly and with speed unabated into the intersection, when he testified that he saw and continued to watch the approach of the defendant’s vehicle coming at 75 or 80 miles per hour and coming so fast that the front wheels left the ground. The defendant’s position is that this is contributory negligence as a matter of law.
The defendant relies on Ray v. Allen, 159 Kan. 167, 152 P. 2d 851, where the plaintiff testified that he made no effort to judge the defendant’s speed and had no idea of his speed until immediately prior to the collision, and then testified: “I could have stopped but why should I stop when the right of way was mine.”
The situation presented in the instant case, however, is quite different. (See Huggins v. Kansas Power and Light Co., 164 Kan. 27, 187 P. 2d 491.) The plaintiff’s testimony here was that he was in the middle of the intersection at the time he observed that the defendant was leaving the blacktop. Until this time he had the right to assume that the defendant was traveling on the blacktop highway, and that if the defendant left the highway he would obey the rules of the road and yield the right of way to the plaintiff because he had already entered the intersection. The operator of an automobile on a public highway may assume others using the highway will observe the laws of the road and he is not guilty of contributory negligence in such assumption unless and until he has knowledge to the contrary. (Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724.)
We deem it unnecessary to discuss in detail the application of the above rules of law to the facts in this case. Actually, the record presents nothing more serious than controverted questions of fact. Contributory negligence is never presumed; it must be established by proof, and when the plaintiff’s evidence does not disclose his own contributory negligence as a matter of law, the jury has a right to disbelieve and disregard all evidence tending to establish its existence. (Creten v. Chicago, Rock Island & Pac. Rld. Co., supra.) It follows the trial court did not err in overruling the defendant’s demurrer to the plaintiff’s evidence.
The defendant (appellant) filed a motion for judgment upon the answers to special questions submitted to the jury “and upon the undisputed evidence in the case” notwithstanding the general verdict, which the trial court overruled. A motion for judgment non obstante veredicto concedes the findings are supported by evidence (Mehl v. Carter, 171 Kan. 597, 237 P. 2d 240, and Lee v. Gas Service Company, 166 Kan. 285, 201 P. 2d 1023), and admits the findings are true (Creten v. Chicago, Rock Island & Pac. Rld. Co., supra). The basis for defendant’s assertion that the trial court erred is that the “undisputed evidence” established contributory negligence as a matter of law. This has already been deter mined adversely to the defendant. A motion for judgment notwithstanding the verdict is not sustained by reason of some possible inconsistencies between the findings, but only when the special findings are contrary to the general verdict and compel judgment in favor of the movant as a matter of law. (Mehl v. Carter, supra.)
The defendant assigns as error the failure of the trial court to submit requested special questions to the jury. All except three were submitted by the court as requested. The record does not disclose any objection by the defendant to the special questions actually submitted, nor any objection for refusal of the trial court to submit those rejected.
A question rejected was “Do you find that each truck entered the intersection at or about the same time?” The question was rephrased by the trial court and submitted as question No. 1 and question No. 7 to clarify its meaning. As requested the question may have been misleading to the jury. Although the wording of the question in legal terminology may have been technically correct, the record does not disclose what all the trial courts instructions to the jury actually were on this point. The only instruction abstracted was No. 9.
The trial court rejected a requested special question designed to follow questions 9 and 10(c) which were submitted to the jury. It reads: “(b) Did plaintiff continue to observe and watch defendant’s approaching truck at all times until after plaintiff had entered intersection?” An answer to this question is immaterial to the issues in the case. Even though it be answered in the negative by the jury it would not, standing alone,- establish negligence on the part of the plaintiff. This intersection had three approaches other than the one the plaintiff was using, and he was obligated to observe traffic conditions on all approaches. At best the plaintiff, under the circumstances, was required only to be aware of the defendant’s position with respect to the highway and the approach to the intersection at all times after he first observed the defendant some distance to the south on the highway until after he (the plaintiff) had entered the. intersection. This did not require the plaintiff to observe and watch the defendant’s approaching truck at all times.
The other special question the trial court refused to submit to the jury was: “What, if anything, did plaintiff do to avoid the collision?” This question is too vague and indefinite. By gen eralizing it fails to take any of the circumstances into consideration relative to the position of the plaintiff traveling in his vehicle and the time concerning his behavior in relation to the position of the vehicle driven by the defendant.
A trial court has wide discretion respecting special questions to be submitted to the jury, and when it appears the questions are not pertinent to the issues, nor supported by the evidence, nor intended to bring out some ultimate fact in the case, it is proper to refuse to submit them. It is the duty of the trial court to supervise and shape the special interrogatories that are submitted to the jury, and it may reject questions that are improper, misleading or immaterial and limit the questions to ultimate facts on controverted issues. (Kurdziel v. Van Es, 180 Kan. 627, 306 P. 2d 159; Colin v. DeCoursey Cream Co., 162 Kan. 683, 178 P. 2d 690; Finke v. Lemle, 173 Kan. 792, 252 P. 2d 869; and Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080.) The trial court cannot be said to have erred- in its refusal to give the above special questions requested by the defendant.
It is argued the trial court duplicated special questions numbered 5 and 13. The defendant argues what the trial court actually intended was to submit a question concerning the plaintiff’s contributory negligence in one of these questions which was entirely omitted from the special questions submitted to the jury. Actually questions No. 4 and No. 5 should.be considered together. Question No. 13 is precisely question No. 8 requested by the defendant. In reconciling Nos. 4, 5 and 13 together the defendant was negligent in not seeing the plaintiff’s truck and in not yielding the right of way to the plaintiff who had entered the intersection first.
This point is not properly before the court, since the defendant did not object to special question No. 13 and must be deemed to have waived it (See Banbery v. Lewis, 173 Kan. 59, 244 P. 2d 202), nor was this point argued before the trial court on the defendant’s motion for a new trial. (Butts v. Kan. Power & Light Co., 165 Kan. 477, 195 P. 2d 567, and see Place v. Kansas State Highway Commission, 174 Kan. 296, 255 P. 2d 1004.)
Further complaint is made by the defendant that the trial court erred in failing to require the jury to return to the jury room and give a more definite answer to special question No. 13. Resort to instruction No. 9 clearly indicates what the jury’s answer to ques tion No. 13 was and it required no further clarification. This answer was in harmony with the answers to the other special questions.
The defendant in his brief recognizes this to be a typical “fact” case, but contends that each of the cumulative errors specified, though minor in nature, when considered together in view of the plaintiff’s testimony, shows that substantial justice has not been done and that a new trial ought to be granted. He argues the answers to the special questions disclose the jury did not believe the plaintiff’s testimony on a number of important points; that by reason thereof the jury'misunderstood its duty and the instructions; and that it failed to find contributory negligence of the plaintiff because the trial court refused or neglected to submit to it the necessary questions to determine the plaintiff’s contributory negligence.
We find nothing in the record, or in other contentions advanced by the defendant respecting his claims of error not herein specifically referred to, which would permit or warrant the granting of a new trial. The judgment of the trial court is affirmed. | [
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The opinion, of the court was delivered by
Kaul, J.:
Defendant-appellant (Benjamin Matthews) was charged and convicted of possession of marijuana, as defined by K. S. A. 1974 Supp. 65-4127b, and unlawful possession of a firearm, as defined by K. S. A. 21-4204. The defendant appeals only from his conviction on the firearm charge, thus the conviction for possession of marijuana is not involved in this appeal.
The sole issue on appeal arises from the admission into evidence of two letters written by defendant while he was incarcerated in jail awaiting trial. The letters were submitted by the state as evidence tending to prove the firearm charge. Both letters were addressed to a girl friend of defendant.
The first of the two letters (identified as Exhibit 9) was seized by Merlin E. Hayes, Chief of Police of Emporia. Chief Hayes’s testimony concerning his seizure of the first letter is narrated in the record as follows:
"... I came into possession of the letter on March 20, 1974. I was in my office. My attention was directed to a Negro person who was standing in front of the police station talking to a prisoner or someone in the jail. I observed something come out of the upstairs jail window. It struck the window of my office and fell to the ground. I immediately went from my office outside and found a sealed envelope lying on the ground beside the building. Exhibit 9 is the envelope that I found. The envelope is addressed to Miss Patricia Long, 1014 Waverly, Kansas City, Kansas. In the upper left-hand comer it has the name of Mr. Ben Matthews.”
Chief Hayes further testified that Matthews was incarcerated in the City-County (Emporia, Lyon County) jail and that after he obtained the letter he read the contents.
Interception of the second letter is described by William D. Lewis, a witness for the state, whose testimony is narrated in pertinent part as follows:
“. . . I am assistant to the commander in charge of the prisoner service of the Emporia Police Department. I am responsible for the jail and cost accounting, the operating of the jail, records, etc. I have been in this position since 1970. I was so employed on March 22, 1974. I can identify Exhibit No. 10 for the reason that I remember this letter being given to me by a prisoner to post; and prior to posting it in the mail, it is the policy of the jail to examine the letter. The man who gave me the letter is Benjamin Matthews. He gave it to me on March 22 shortly after lunch. Ben gave me the letter personally. It was in an envelope, however, the envelope was not sealed. There was no stamp on it. I examined the contents and took it to Officer Armitage in the Detective Division. I did examine the letter. Exhibit 10 is a copy of the letter received from Mr. Matthews.”
Chief Hayes further testified that there were no written instructions for management of the jail, but that it was the practice to read or censor all mail coming out of the jail; that prisoners were made aware of the practice when they were booked in; that the information was on the booking sheet; and that, in addition, the prisoners were told verbally of the practice. The chief testified that after letters were intercepted and censored they are sent on to the addressees.
The record does not show that any matter is actually excised from a letter before it is posted. We gather from the testimony, although the matter is not clear, that outgoing mail is merely read for information purposes, and then mailed, as written, to the addressee.
The record indicates that the second letter was mailed to the addressee after it was delivered to Lewis by defendant. A copy was made which was introduced into evidence.
Defendant objected to the admission of the letters at trial, but the grounds of his objection and the arguments made to the trial court are not reproduced in the record. After hearing arguments, out of the jury’s presence, the trial court admitted the letters into evidence.
The incriminating statements in both letters are essentially the same. The first letter, dated March 20, 1974, reads in pertinent part:
“What’s happening in your world, my world is empty without you. Well, baby to make a long story short, right now I’m writing you from a jail cell, the reason for all this is, that I’m being charged with possession of a firearm 5 year’s prior to a felony, for having a pistol, and for possession of marijuana, in which I didn’t have nothing but a joint or two and a pistol which they don’t have, the only reason I’m being charged is because I shot the dude accidentally, he ain’t pressing any charges it’s just this dam state who’s trying to get me locked back up and from the look’s of things seems like they are going to do it. . . .”
In the second letter, dated March 22, 1974, defendant indicates that he was aware that the first letter had been intercepted. The second letter reads in part:
“. . . Well, to make a long story short, I am now locked up in the Lyon County Jail for shooting this dude, so they say and for possession of marijuana in which I didn’t have nothing but about a joint or two, you know. Like this dude ain’t pressing any charges it’s just this dam state, yea now I wish that I never came down to this place now, just as sure as I get out of this trouble I’m coming back to Kansas City, to stay. Like for one thing there’s to many snitches around this town. For instance like I had heard that this dude was a snitch and I told this white dude that was walking down the street to go tell this dude to come over to the window where I was in this jail house, sure thing he got out of the car and came over and this letter that I was writing you I told him to mail, so he said ‘ok,’ I dropped it down and he went and told the ‘man’. . . .”
On appeal defendant claims error in the admission of the letters into evidence on three grounds: (1) They were the fruits of an unreasonable search and seizure; (2) their use violated his Fifth Amendment guarantees against compulsory self-incrimination; and (3) the reading of his outgoing mail violated First Amendment rights of free speech.
Defendant’s arguments indicate that he would have the court consider both letters in the same context with respect to invasion of his constitutional rights. The manner in which the two letters came into the possession of the police puts them into separate and distinct categories. The first letter, seen dropping from the jail window, was not discovered incidental to a search nor was it read during the process of mailing. Tire very nature of the letter dropping incident would and should invite the suspicion of any efficient police officer or jailer when such an occurrence is observed. Checking unusual occurrences, such as items being thrown from the jail, clearly falls within the duty of Chief Hayes. The letter, when picked up by Hayes, was in plain view on public property. No search was involved. There is no basis whatsoever for defendant’s claim of unlawful search and seizure with respect to tire first letter. Mere observation does not constitute a search. (United States v. Lee, 274 U. S. 559, 71 L. Ed. 1202, 47 S. Ct. 746; and Haerr v. United States, 240 F. 2d 533 [5th Cir. 1957]). The rule announced in the foregoing cases was adopted in this jurisdiction in our decision in State v. Yates, 202 Kan. 406, 449 P. 2d 575, cert. dismissed 396 U. S. 996, 24 L. Ed. 2d 461, 90 S. Ct. 496, wherein we held:
“An ‘unreasonable search,’ as that term is used in the Fourth Amendment to the Constitution of the United States and Section 15 of the Bill of Rights in the Kansas Constitution, implies an exploratory investigation and mere observation of what may be readily seen does not constitute a search.” (Syl. ¶1.)
The incriminating statements made by defendant in the first letter were voluntarily made. No claim is made that Chief Hayes came into possession of the letter by use of deceit or trickery. We know of no reason why the state was not entitled to use such statements in its case.
While circumstances surrounding the state’s acquisition of the statements continued in the second letter differ from the situation concerning the first, we, likewise, find the defendant’s arguments fail to warrant a reversal. The second letter was delivered to the jailer unsealed and unstamped — a circumstance which we believe corroborates the state’s assertion that defendant knew his outgoing mail would be read. There is no evidence that defendant did not know of this procedure. Here, again, as in the case of the first letter, no search was involved. While a copy was made of the letter, it was stamped and mailed without any deletions to the addressee. Thus, it cannot be said that defendant’s rights of communication were infringed, limited or restricted. Since the letter was delivered to the jailer unsealed and with knowledge that it would be read, defendant has no claim of any invasion of privacy. There is no evidence of trickery or deceitful practices. Defendant voluntarily wrote the letter knowing it would be read. Under such circumstances it cannot be said that the state gained access to the contents of the letter by search and seizure.
Cases dealing with the use of prisoners censored mail as evidence are collected in an annotation in 52 A. L. R. 3d, commencing at page 548. The author of the annotation in § 5 makes this statement:
“In considering the propriety of the censorship and evidentiary use of an unconvicted prisoner’s mail, courts generally have attached no significance to the fact that the prisoner was unconvicted, but rather have decided such cases according to their views as to the propriety of prison mail censorship generally, without any discussion of the question whether different principles might be appropriate to cases involving unconvicted prisoners.” (p. 559.)
In State v. Johnson, (Mo.), 476 S. W. 2d 516, the Supreme Court of Missouri was confronted with contentions almost identical with those made here relating to the admission into evidence of the contents of a letter written by a defendant confined in jail awaiting trial. Concerning a contention of unconstitutional search and seizure the Missouri court said the point was not well-taken “because he composed and released the letter knowing it would be read by the jailer prior to mailing.” As to the claim that admission of the letter violated defendant’s privilege against self-incrimination the court quoted from the decision in defendant’s prior appeal. (State v. Johnson, [Mo.], 456 S. W. 2d 1.):
“. . . ‘Defendant’s admissions [in the letter] were discovered in the course of jail security. There is no indication this was merely a guise to get a look at defendant’s correspondence. Defendant was under no compulsion or interrogation to admit guilt or make statements inferring guilt.’ . . .” (p. 519.)
In Hicks v. State, (Tenn.), 480 S. W. 2d 357, a letter written to his girl friend by a jail inmate, awaiting trial, was intercepted by the jailer as in the case at bar. The letter contained incriminating statements and was submitted in evidence by the state. Defendant was convicted and on appeal presented to the Court of Criminal Appeals of Tennessee essentially the same arguments as those made by defendant herein. The Tennessee court observed that defendant voluntarily wrote a letter and that no coercion or deceit was involved in the acquisition of it by the state. The court cited Stroud v. United States, 251 U. S. 15, 64 L. Ed. 103, 40 S. Ct. 50, as being directly in point.
In Denson v. United States, 424 F. 2d 329 (10th. Cir. 1970) messages between defendant and other inmates confined in a federal penitentiary were intercepted and photographed. Defendant was awaiting trial for fatally stabbing another inmate at the time. The intercepted messages contained incriminating statements which were introduced by the prosecution at trial. Defendant claimed the admission of messages violated his Fifth Amendment privilege against self-incrimination and were obtained through an unlawful search and seizure. Both contentions were rejected. As to the first claim the court observed that there was no confession or admission extracted from defendant through an unlawful interrogation or coercion as in Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, and that defendant was merely permitted to do that which he set out to do. The court went on to say that under the facts there was no search or seizure since defendant voluntarily delivered the messages to the inmate-orderlies who voluntarily delivered them to the correctional officers.
In the case at bar defendant voluntarily wrote the statements in question in the letter which he voluntarily delivered to the jailer.
Defendant relies largely upon Procunier v. Martinez, 416 U. S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800. Procunier was a class action brought by inmates of California Penal Institutions against the Director of the California Department of Corrections challenging rules relating to censorship of prisoner mail and other regulations promulgated by the department. There was no evidentiary question involved. The main thrust of the decision was that the rules pertaining to mail censorship “fairly invited prison officials and employees to apply their own personal prejudices and opinions as standards for prisoner mail censorship.” The opinion went on to give examples as to what would constitute justifiable censorship of prisoner mail. The decision went only to censorship, it did not proscribe the reading of prisoner mail. Since censorship was held to be justifiable under certain circumstances then, by implication, it appears that the mere reading of prisoner’s mail is permissible. We are not concerned with questions that arise where a prisoner’s correspondence with his attorney is read. (See Cox v. State, 197 Kan. 395, 416 P. 2d 741; and State v. Carr, 206 Kan. 341, 479 P. 2d 816.)
Likewise, other cases cited by defendant do not involve the evidentiary question presented herein. Palmigiano v. Travisono, 317 F. Supp. 776, (1970), was a class action against state (Rhode Island) officials brought by inmates challenging certain state statutes, regulations and customs relating to the treatment of prisoners. In Preston v. Cowan, 369 F. Supp 14, (1973), a state prisoner sued the Superintendent of the Kentucky State Penitentiary for damages for violation of his civil rights. In Morales v. Schmidt, 340 F. Supp. 544, (1972), the court held that the right of an inmate to engage in correspondence of a romantic nature with his sister-in-law was protected by the First Amendment to the Constitution of the United States. There is language appearing in the cases mentioned which condemns the unrestricted censorship of a prisoners mail and in Palmigiano a temporary restraining order was issued. The cases cited by defendant deal with direot challenges to prison regulations concerning censorship and other prison regulations by way of petitions for injunctive or declaratory judgment relief against such regulations. They do not deal with the propriety of rulings admitting incriminating written statements which were voluntarily given.
In the instant case, neither letter was obtained by the state as a result of a search. The incriminating statements in each letter were voluntarily made. There is no evidence of coercion, trickery or deceit on the part of any police officer. There is evidence that the second letter was mailed to the addressee. As to the first letter, the record is not clear, but we assume that it was not mailed to the addressee. However, since the first letter was merely thrown out a jail window, rather than delivered to a jailer, we find no basis for defendant’s claim of infringement of his First Amendment rights in this regard.
The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal is from a judgment of the trial court based on a jury’s verdict against the defendant city and in favor of plaintiff awarding damages for personal injuries.
The plaintiff has moved to dismiss this appeal because the city failed to file a transcript in the office of the clerk of the district court, as required by G. S. 1949, 60-3311. However, plaintiff filed a counter abstract in which reference was made to page numbers of the transcript. While statutes and court rules relating to appellate procedure should be meticulously followed, this court has been reluctant to dismiss an appeal because of such omission as here claimed by plaintiff unless the complaining party has been prejudiced thereby. A good discussion of a similar situation and determination thereof appears in Boggs v. City of Augusta, 180 Kan. 831, 832, 833, 308 P. 2d 72. The record in our case, as in the Boggs casé, fails to support plaintiff’s claim of prejudice and the motion to dismiss is overruled.
No controversy exists in regard to the pleadings and we shall, therefore, turn immediately to a consideration of the substantial testimony of the witnesses. On June 2, 1957, plaintiff’s husband, while driving a motorcycle with plaintiff riding as a passenger on the rear seat, approached (from Central street on the west) the four-way stop intersection of Central and West streets in Wichita, and in the execution of a lefthand turn, hit a “chughole” in the blacktop surface of the intersection; he knew the intersection had a lot of holes; the northeast corner was full of water and it had been that way for sometime; he identified the hole the motorcycle hit; he had missed it with the front wheel of the cycle but not the back wheel which caused plaintiff to lose her balance; her foot was thrown into the wheel; his speed was five miles an hour and he stopped immediately after hitting the hole.
Plaintiff testified to the same facts as her husband and further stated they had stopped before entering the intersection and after the bump she “hollered” to her husband to stop because her foot was in the wheel and it was tearing her heel.
Mr. Driskel, employee of KAKE Television and Radio, went by the intersection almost every day going to work; the chugholes had been in there and they had been patched but the asphalt came out; back of the particular hole in question the asphalt warped in the summer and then broke up in heavy rains; he did not know how long the hole had been there.
Joe Walker, operator of a Phillips service station at the southeast corner of the intersection, stated that the intersection was rough with chugholes and had been for years; he had observed the front wheel of one car get stuck in a hole and another blow out a tire after which, because the water was bad, he had called his brother, a highway patrol dispatcher and told him of the situation. The witness further testified that police officers patrolled the area and police cars had gone through there and hit chugholes.
Lawrence Wells stopped his car at the stop sign, saw the cycle hit the chughole which had existed at least two months, saw plaintiff’s shoe flip into the street and observed that the main part of plaintiff’s heel had dropped away from the rest of her foot.
Jack Walker, brother of Joe Walker, testified that chugholes were in the north, south, and east of the intersection; the city had repaired them several times but every time it rained the fillings would wash out; there was no sewer outlet in the corner; a big ditch had been filled by driveway approaches to a Texaco service station; he had called fire police dispatcher as soon as his brother had called him about cars having difficulty; on one other occasion he had called the city yard himself concerning the condition.
Police officer Gregg, who was called to the scene, took pictures of the hole that somebody told him the cycle had hit; plaintiff told him he did not hit the hole; Gregg was so busy he did not get the name of the man who said the cycle hit the hole and the man left; he had to approach within five feet of the hole to get a picture and plaintiff would have had to be within five or six feet before he could see the depth of the hole.
The city requested the following instructions:
“Requested Instruction No. 4
“You are instructed that plaintiff cannot recover unless she has established by a preponderance of the evidence that the defendant is guilty of some act or acts of negligence which proximately caused her injury.
“By proximate cause is meant that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury must have been the natural and probable consequence of the wrongful act.
“Requested Instruction No. 6
“You are instructed that a city is not liable for defects or obstructions in the street unless such defect existed for such a length of time prior to the accident that the City in the exercise of reasonable care should have discovered it.
“Notice of a particular defect which caused an injury cannot be established by proof of notice of any other defect which is in no way related to the former and did not contribute to the injury.
“In determining whether the hole in question existed for such a length of time prior to the accident that the City in the exercise of reasonable care should have discovered it, you are not permitted to take into consideration any holes or conditions other than the specific hole in question, and you must find that the specific hole of which plaintiff complains existed for such a length of time prior to the accident that tire City in the exercise of reasonable care should have discovered it.”
The trial court gave the following instructions on causation:
“No. 6. The plaintiff alleges that the defendant City was negligent in permitting the intersection of Central and West Streets to become defective and dangerous.
“In order to sustain this allegation the plaintiff has the burden of proving not only that her injury was caused by a hole in the intersection but in addition that the particular hole in question was of such size and character as to render the street unsuitable for public travel conducted in the ordinary manner.
“No. 7. The plaintiff claims that she was injured and damaged because of the negligence of the defendant. If you find and believe from a preponderance of the evidence that the defendant was negligent and that the plaintiff suffered injury and damage because of defendant’s negligence, you should find for the plaintiff in whatever amount you believe will compensate plaintiff for the damage suffered, not to exceed the amount sued for in the plaintiff’s petition.
“Plaintiff cannot recover in this suit if she was guilty of any negligence which contributed to her injury.
“No. 8. The defendant, City of Wichita, is bound by law to use all reasonable care, caution and supervision to keep its streets in a reasonably safe condition for travel in the ordinary modes of travel, and if it fails to do so it is liable for injuries or damage sustained in consequence of such failure, provided that the party injured or damaged is herself exercising reasonable care and caution.”
On the duty of the city and notice of defect to the city, the trial court instructed as follows:
“No. 9. You are instructed that although incorporated cities are required to construct and maintain their streets in a reasonably safe condition for the travel that usually passes over them, yet they are not insurers of the condition of the streets, nor are they held to keep them in an intrinsically perfect condition, nor are they answerable for conditions which reasonable prudence would not have guarded against.
“No. 10. You are instructed that before you can find negligence on the part of the City you must be satisfied that the City had notice of the defect, or had knowledge of facts sufficient to put it upon inquiry long enough before the injury to have repaired the defect.
“Negligence implies some omission of duty. The City must have been in fault, and if it had no knowledge of any defect or any facts from which it might reasonably have presumed that there was a defect, it is not to blame, and it cannot be said to have been guilty of negligence.”
The record discloses the city objected only to the trial court’s instruction No. 10 and did not object to No. 6, 7, or 8.
The jury returned a general verdict in favor of plaintiff for $10,895.00
During the hearing of the motion for new trial the city presented the point that the trial court had not instructed, and it was necessary to so instruct, on proximate cause. The city also again objected to the trial court’s instruction No. 10.
The trial court overruled the motion for new trial and approved and entered judgment on the jury’s verdict.
The city appeals from the order overruling the motion for new trial.
The first question presented by the parties is whether it was error for the trial court to refuse to give the city’s requested instruction No. 4 on proximate causation. That requested instruction is technically a correct statement of the law but it does not necessarily follow that the trial court’s refusal to give it was reversible error. The parties devote much of their argument to the proposition as to whether it was necessary for the city to object to the instructions given but that is not the question here and we shall not discuss that contention.
We said as recently as in Applegate v. Home Oil Co., 182 Kan. 655, 662, 324 P. 2d 203, there are numerous definitions of the term “proximate cause” and our decisions therein cited confirmed that statement. The Applegate case also discussed the proposition as to whether proximate cause is a fact question for the jury or one of law for the court, but that discussion need not be reiterated here.
In Alexander v. Wehkamp, 171 Kan 285, 232 P. 2d 440, as to the sufficiency of the trial court’s instruction on preponderance of the evidence where a written contract and a purported subsequent oral modification were involved, this court stated:
“From an examination of the instructions given, as a whole, and the entire record, we are convinced the jury was fairly apprised of the issues involved, and the failure on the part of the court to give plaintiff’s requested instructions did not prejudicially affect his substantial rights.” (p. 290.)
After considering the record before us, part of which has been set out herein, and examining particularly all of the trial court’s instructions, we conclude the issue of proximate cause was sufficiently presented as a question of fact for the jury’s determination. That being true it is unnecessary to cover the interesting subject of the sufficiency of the evidence to make proximate cause a question of law determinable by the court.
The next issue involves the city’s objection to the trial court’s instruction No. 10. We have also set out instruction No. 9, which, along with No. 10, appears to be quite favorable to the city. The first paragraph of No. 10 is a correct statement (McCollister v. City of Wichita, 180 Kan. 401, 403, 304 P. 2d 543) and requires knowledge on the part of the city to put it upon inquiry long enough before the injury to have repaired the defect.
When we examine the record and particularly the evidence of Lawrence Wells in addition to that of Joe Walker, the city cannot be heard to contend that it did not have constructive notice of the defect or knowledge of the defect for a long enough time prior to plaintiff’s injury to repair the defect. See Crawford v. City of Wichita, 141 Kan. 171, 39 P. 2d 911, for a decision in a case similar to the one now before us.
Judgment affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in an action seeking a money judgment by an appellant landowner from the trial court’s order sustaining the state highway commission’s demurrer to his petition for the reason that the court had no jurisdiction of the subject of the action and the petition did not state facts sufficient to constitute a cause of action.
We are not concerned herein with the landowner’s action against the city of Mankato because that matter has been removed by order of the trial court sustaining the city’s motion, on special appearance, to quash service of summons, which was not objected to by the landowner and no appeal has been taken therefrom.
After identifying the parties, describing the landowner’s property, and showing the eminent domain proceeding by the city to condemn a corner of that property, with which we are not here concerned, the petition reads:
“2. That thereafter representatives of the State Highway Commission of the State of Kansas, and contractors of the State Highway Commission commenced work on improving U. S. Highway 36 along South Street by changing the grade thereof and making fills and cuts therein, and repairing, and curb and guttering said South Street.
“3. That prior thereto by City Ordinance No. 280, passed June 3, 1927, the City of Mankato, Kansas, the grade of said South Street had been established and remained without change for some 30 years thereafter, and was considered by all property owners on South Street and the City of Mankato to be the established grade for said South Street. That subsequent to the 4th day of May, 1957, in accordance with plans and specifications of the State Highway Commission for the improvement, widening and altering of said South Street and U. S. Highway 36 aforesaid, the contractors, without, any statutory proceeding by the City of Mankato, to change the grade and without acquiring the right from the adjoining property owners, to change the grade, did excavate portions thereof and fill in portions thereof, from a point being approximately the northwest corner of Block One, Bishop’s Addition to the City limits of Mankato, Kansas, raising the grade of South Street as much as 5 to 6 feet at places, and lowering the grade as much as 4 to 5 feet in places, the exact measurements the plaintiff is unable to state; and immediately in front of the property of the plaintiff the grade of said Highway and South Street was raised from 1 to 6 feet in height; that the change in said grade and raising thereof, severely impaired the ingress and egress therefrom plaintiff’s property, and subjected the office building, residence building and tourist court buildings on the property of the plaintiff above described, to flooding in the summer of 1957 from drainage of water changed thereby, and that during the construction thereof, by reason of the change in drainage and the change of grade aforesaid resulting from deposit of earth along the plaintiff’s property, water was impounded thereon so as to flood the basement and home of the plaintiff and the floors in buildings of several of the cabins thereon.
“4. That in addition thereto, in connection with such improvement, the representatives of the State Highway Commission, its agents and employees, entered upon a strip of land approximately 15 feet wide, the exact measurement plaintiff is unable to state, upon the south line of the above described property and entered into possession thereof, and removed structures thereon, and- deposited earth thereon, and appropriated the same for the right of way of said U. S. Highway 36 along South Street by staking out said right of way upon the private property of the plaintiff; that neither the City of Mankato, Kansas, nor the State of Kansas has acquired, or owns any portion of the strip taken from plaintiff’s property for highway use.”
The foregoing was followed by allegations of damages not now involved.
The commission lodged its demurrer attacking the petition, on. the two grounds above stated. The trial court sustained the demurrer on both grounds and the landowner has appealed.
Here again we have a demurrer testing the sufficiency of a peti tion under G. S. 1949, 60-705, First, Fifth, which invokes certain oft-repeated rules. When a general demurrer is lodged against a petition the pleading is to be liberally construed in favor of the pleader (Trimble v. Spears, 182 Kan. 406, 320 P. 2d 1029); all well-pleaded allegations are admitted (Farran v. Peterson, Administrator, No. 40,936, 185 Kan. 154, 342 P. 2d 180, this day decided) and taken as true; the pleader is entitled to all favorable inferences that may be drawn from the facts pleaded (Merchant v. Foreman, 182 Kan. 550, 322 P. 2d 740). Also, where a petition sufficiently alleges a cause of action on any theory, a general demurrer thereto cannot be sustained. (Richey v. Darling, 183 Kan. 642, 331 P. 2d 281.) In this connection we have further held that in testing the sufficiency of a pleading, we consider only the allegations thereof. (Clark Lumber Co. v. Passig, 184 Kan. 667, 668, 339 P. 2d 280.)
The commission frankly states no question of venue was presented to the trial court and we therefore will not consider it in this appeal. This is supported by the rule that we do not consider matters which have not previously been presented to the trial court. (In re Estate of Cramer, 183 Kan. 808, 816, 332 P. 2d 554.)
The next question is whether the trial court had jurisdiction over the subject of the action. The commission claims that under the general condemnation law of eminent domain (G. S. 1949, 26-101) and the statute determining jurisdiction of actions in rem (G. S. 1949, 60-501) the trial court lacked jurisdiction. Since this is not an eminent domain proceeding, we need not discuss 26-101. With regard to 60-501, two recent decisions of this court draw a definite line of distinction on the question of jurisdiction. The first is Suits v. Mobil Crude Purchasing Co., 182 Kan. 310, 313, 321 P. 2d 167, an action brought in McPherson county concerning oil runs from real estate located in Butler county, and it was there held the trial court had no jurisdiction over the subject of the action because it was for the recovery of an interest created by an oil, gas or mineral lease; for the determination in some form of such right or interest; and to bar the appellees from any right or interest therein. The second case is Schindler v. Ross, 182 Kan. 277, 283, 320 P. 2d 813, where it was in substance said that 60-501 cannot be construed as having application to an action — such as the one there involved — on implied contract to recover money paid under an oil and gas division order through mistake of fact where there is no dispute between the parties participating in the execution of that instrument as to their respective interests under its terms and provisions. (Emphasis supplied. ) Since the highway' construction in our present case is completed and there i can be no dispute between the parties as to their respective interests in the real property or the rights appurtenant thereto, we think the language of the Schindler case is conclusive on the point. Further, in an injunction suit (Provident Mut. Life Ins. Co. v. State Highway Comm., 155 Kan. 351, 355, 125 P. 2d 346) this court reversed the trial court’s order sustaining a demurrer to the insurance company’s petition and stated as follows:
“Were we to grant the specific relief prayed for, the effect would be to close the state highway until such time as the commission could exercise its right of eminent domain, where the only issue would be the amount of the award. In our judgment it is in the public interest no injunction should be granted, but that the cause should be remanded to the trial court in order that it may hear the evidence pertaining thereto and award to the company and against the commission such sum as the company is justly entitled to under the facts and circumstances.” (p. 355.)
See, also, Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535, where another highway improvement project was sought to be enjoined and the result was the same as that in Provident Mut. Life Ins. Co. v. State Highway Comm., supra.
This is an action ab initio for recovery of money because the landowner has lost property or rights therein (which he allegedly originally owned and possessed) by reason of the highway development above set out and thus there can be no issue of his and the commission’s respective interests in the land. Therefore, the rule in the Schindler case is controlling. Here, the Shawnee district court had jurisdiction over the subject matter just as it did in the above-cited life insurnace company case where the land in question was located in Atchison county.
The other ground of the demurrer — that the petition failed to allege a cause of action against the commission — is argued on the basis that the city of Mankato was the only authority that had the power of eminent domain to condemn for the improvement of its city street as a connecting link in the state highway in question.
The petition alleged that prior to January 29, 1957, the commission and the city of Mankato entered into an agreement, the details thereof not being known to plaintiff, for the project here involved and included were those matters alleged in the above-quoted portions of the petition. Such an arrangement for connecting links in certain cities of the third class is within the power of the commis sion (G. S. 1949, 68-412; 68-412a) and it exercised that power not only by entering into the agreement of January 29, 1957, but also by carrying the project to completion.
We agree with the commission that it has no power to enter a city of the third class with a population of more than 500 (Strain v. Cities Service Gas Co., 148 Kan. 393, 396, 83 P. 2d 124) which is the particular kind of city with which we are here concerned and nothing said herein is to be applied to any other municipality by implication so as to extend or diminish any of the commission’s power to institute eminent domain proceedings for condemnation of property or rights therein without the cooperation of that city. However, once the commission has exercised the power granted to it under G. S. 1949, 68-412 and 68-412a, we believe that it must then answer in damages to a landowner whose property and rights therein have been lost by the combined and cooperative efforts of the commission in such a project as is here presented. Where the commission has appropriated land or rights therein for state highway purposes without having obtained the title thereto, by formal condemnation or otherwise, the landowner may waive formal condemnation and may sue upon an implied contract for the value of the property taken. This is substantially the rule stated in State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 132, which was cited with approval in the subsequent case of Atchison v. State Highway Comm., 161 Kan. 661, 663, 171 P. 2d 287.
The question of the difference between the phrases, a “state highway system” and “a state system of highways” was well-settled in State, ex rel., v. State Commission of Revenue and Taxation, 163 Kan. 240, 181 P. 2d 532, and we are not inclined to cover the subject again.
We have noted, not overlooked, other interesting arguments and authorities cited by the parties but a discussion of them would only extend the opinion and would not be determinative of the problems here involved.
Applying the general rules respecting consideration of the sufficiency of a pleading when it is attacked by a demurrer, we conclude the trial court had jurisdiction over the subject of the action and that a cause of action was sufficiently alleged. The result is the trial court erred in sustaining the demurrer on those grounds.
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Per Curiam:
This is an original proceeding in discipline against the respondent, H. Lee Turner. Mr. Turner is a member of the bar of this state. Since 1952 he has been engaged in the practice of law in Great Bend, Kansas.
In the fall of 1973 an amended complaint with four counts was filed against Mr. Turner. At a hearing before a three-man hearing panel of the State Board of Law Examiners, counts I, II and IV were dismissed. As to count III, the panel found respondent had violated the Code of Professional Responsibility, Supreme Court Rule No. 501, 214 Kan. lxxv-ciii, and recommended discipline by public censure.
Count III of the complaint is drawn in the following language:
“In the case of Cheryl K. Smith v. Dorothy I. Cropp, in the District Court of Barton County, Kansas, No. 23680, H. Lee Turner did during the trial of such case, while acting as plaintiff’s counsel, verbally abuse and improperly attack defense counsel and did interject improper statements during the examination of witnesses.”
As to count III the hearing panel concluded that “respondent as attorney for plaintiff in the case of Smith vs. Cropp, District Court of Barton County, Kansas, was in violation of the code of professional responsibility [hereafter referred to as the Code] in that:
“1. He did engage in conduct during the course of that trial [Smith v. Cropp] that is prejudicial to the administration of justice, contrary to the provisions of DR 1-102 (A) (5); and
“2. He did engage in undignified and discourteous conduct which is degrading to a tribunal in violation of DR 7-106 (C) (6).”
The Board of Law Examiners approved the report of the hearing panel, denied a motion for rehearing and recommended that respondent be disciplined by public censure. The respondent has filed exceptions to the report, findings and recommendations of the Board, as is authorized in Supreme Court Rule 208 (c) (2) (214 Kan. lix). In this posture the matter came 'before this court and was set for hearing. Comprehensive briefs have been submitted, oral arguments have been presented, and the cause now stands for decision.
The charge in count III grows out of the respondent’s conduct during trial of a civil action, Cheryl K. Smith v. Dorothy I. Cropp, No. 23,680, in the district court of Barton County, Kansas, the Honorable Herb Rohleder presiding. The plaintiff recovered a large judgment. The defendant appealed to this court where the action was revived against James L. Blakey, administrator of Mrs. Cropp’s estate. On appeal the judgment was reversed, the opinion being reported as Smith v. Blakey, Administrator, 213 Kan. 91, 515 P. 2d 1062. One of the grounds of reversal was misconduct on the part of the plaintiffs counsel, Mr. Turner. We will refer to this case as Smith or the Smith case.
Judging from the files of the present proceeding it appears the state introduced no testimony, either oral or by deposition, offering only the record, the briefs and the opinion in the Smith appeal. The record in that appeal is replete with language used by Mr. Turner which the Board deemed was improper and abusive of opposing counsel, Mr. James Mize. Many of the offensive utterances were in connection with objections interposed during Mize’s examination of witnesses and they culminated in respondent’s final summation to the jury. We will not burden the body of this opinion with a verbatim account, but a representative sampling of respondent’s language as well as verbatim portions of his final summation are attached in a short appendix.
Mr. Turner filed eight exceptions to the Board’s report. They are copiously covered in his brief and pertain to matters both of substance and of procedure. Consideration will be given each, seriatim.
Point one is essentially directed toward the sufficiency of evidence and related peripheral matters. The respondent correctly points out that Supreme Court Rule 207 (1), 214 Kan. lviii, requires that charges of misconduct be established by substantial, clear, convincing and satisfactory evidence. This rule asserts our case law as expounded in In re Ratner, 194 Kan. 362, 366, 399 P. 2d 865, In re Phelps, 204 Kan. 16, 17, 459 P. 2d 172, and earlier cases cited therein. We cannot agree, however, that the evidence before the panel was insufficient to establish the verbal statements on which count III was based. Those statements, alleged to be abusive and improper, were clearly reflected in the appellate record filed in the Smith case.
Respondent argues however that while the Smith appellate record was admitted in the evidence, its contents were hearsay, citing The People v. Amos, 246 Ill. 299, 92 N. E. 857. Amos is easily distinguished since the record in that case contained testimony of witnesses concerning the conduct of the attorney, Amos. The Smith record is a cat of a different breed; it reflects directly what the respondent himself said, not what other parties said he said. The Illinois Supreme Court recognized this distinction in the later case of In re Ellis, 371 Ill. 113, 20 N. E. 2d 96, where a transcript which recorded the attorney’s testimony in a civil action, was admitted as evidencing an admission against interest on his part. The rule espoused in Ellis was followed in In re Nelson, 79 N. M. 779, 450 P. 2d 188, where the respondent objected to the use of his own testimony in a former civil action. The New Mexico court said:
“The objection is not well taken. The transcript was admittedly correct and complete, it is fully proper, and, if admissible for no other reason, it is certainly admissible .as an admission by a party against his interest and therefore competent evidence. . . .” (p. 781.)
Not only was the appellate record in Smith competent and sufficient evidence to support the findings of the panel, but the respondent himself, in his testimony, freely admitted having made many, if not all, the statements attributed to him. As we view the record in this disciplinary proceeding there is no lack of substantial competent evidence on the substantive issue of what statements were made by respondent during the Smith trial.
In his brief, the respondent insists that the state took the position that the reversal of Smith v. Blakey, Administrator, supra, was conclusive as to the issue of “conduct that is prejudicial to the administration of justice.” We know not what stance the state took at the hearing, but we do not understand its present position as being that Smith v. Blakey, Administrator, supra, is res judicata so far as this disciplinary proceeding is concerned. Nor did this court intend, in Smith, to' pronounce judgment as to the respondent’s ethics, as we believe was made clear in the language on page 96:
“. . . We are not concerned in this proceeding with discipline for violations of our Code of Professional Responsibility (Kansas Supreme Court Rule No. 501, 209 Kan. lxxiv), except as the actions which may constitute violations relate to the issue of a fair trial. . . .”
The respondent asserts that fidelity to his client’s cause impelled him to employ harsh tactics. In this connection he has cited the opinions expressed by two eminent and respected members of the district bench, the Honorable Albert B. Fletcher, Jr. and the Honorable C. E. Birney, who testified drat under the attending circumstances — which they indicated were provocative and due in large measure to the failure of the trial judge to keep the trial fully under control — the conduct of Mr. Turner did not contravene provisions of the Code.
True it is, that lawyers are enjoined to act with fidelity to the cause of their clients. Canon 7 of the Code recites: “A Lawyer Should Represent a Client Zealously Within the Bounds of the Law.” Mr. Turner, in representing Mrs. Smith in her lawsuit for personal damages sustained in a car accident, vigorously contended that opposing counsel employed by the insurance carrier to represent the insured was improperly protecting her best interests because of a conflict of interest on his part. Moreover, the respondent asserted that Mize was violating an order in limine.
We will not go into the merits of Mr. Turner’s complaints against Mr. Mize, or to the controversy which boiled between them. Suffice it to say that Canon 7 does not countenance unrestrained zeal on the part of an advocate; his ardent zeal, commendable in itself, is to be exercised within the bounds of the law. We do1 not apprehend, as respondent seems to fear, that tire decision of the Board, logically extended, would subject a zealous advocate to charges of misconduct whenever he might cause or contribute to trial error. The question posed in this proceeding is not whether error inhered in the Smith trial but whether respondent was guilty of unprofessional conduct. The Board found, in effect, that the respondent had exceeded permissive legal limits.
In the disbarment action of In re Macy, 109 Kan. 1, 196 Pac. 1095, Mr. Macy was charged, among other acts of impropriety, with having filed an answer accusing the plaintiff, a Liberal attorney, of criminal conduct. The court’s language is expressive:
“It is an attorney’s duty to protect the rights of his client, but it is likewise an attorney’s duty to refrain from doing an intentional wrong to the adverse party. . . . An attorney at law in the preparation and trial of an action in court represents his client, but he does more than that — he is there, not only as an advocate, but also as a person trusted and authorized by the state to assist the court in determining what is right between the parties before it. He cannot excuse himself by saying that his duty to his client demands that he adopt a line of conduct detrimental to the interests of the public. . . .” (p. 8.)
Certain Ethical Considerations (EC) approved by this court in principle are pertinent at this point:
EC 7-10 The duty of a lawyer to represent his client with zeal does not militate against his concurrent obligation to treat with consideration all persons involved in the legal process and to avoid the infliction of needless harm.
EC 7-37 In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel. Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.
EC 7-38 A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so. A lawyer should be punctual in fulfilling all professional commitments.
These Ethical Considerations set the tone for the conduct expected of lawyers toward trial adversaries. Open disrespect shown for an opposing attorney coupled with personal attacks upon him throughout trial proceedings may not only bring reproach upon the profession of the law but may disrupt the orderly progress of die trial itself, distracting attention from the ultimate objective to be attained, i. e., the arrival at a just decision after a fair trial.
Lawyers are enjoined by DR 7-106 (C) (6) to refrain from engaging in undignified or discourteous conduct which is degrading to a tribunal. As to this requirement, respondent replies he was not discourteous to the trial court. While the record in Smith does not reflect discourtesy to or disrespect for the trial judge, as such, we believe that a “tribunal”, as that term is contemplated by the Code, comprehends more than the judge himself; it includes the entire forum, the entourage, the setting in which the proceedings are being conducted. “Tribunal” is variously defined in both lay and legal dictionaries as the seat of a court; the place where justice is administered; a court or forum of justice. Although respondent’s verbal thrusts were not directed toward the judge, we view them nonetheless as inconsistent with the decorum required in court proceedings. Indeed, inflammatory remarks have no legitimate place in judicial proceedings. In Forsyth v. Church, 141 Kan. 687, 42 P. 2d 975, the plaintiffs counsel in his closing argument, referred to witnesses as liars and ridiculed them. Of such tactics the court said:
"These inflammatory appeals are not in keeping with the decorum that counsel should observe in a court that is settling the rights of parties, and it is condemned as erroneous. . . .” (p. 690.)
We have previously mentioned the testimony of the two district judges who appeared on respondent’s behalf. Both were highly critical of the trial judge in permitting Mr. Mize to continue serving as trial counsel for Mrs. Cropp, and in failing to maintain control over the trial proceedings. Both were of the opinion that under the provoking circumstances which were present the respondent did not exceed the outer limits of propriety.
While provocation may be an extenuating circumstance to be considered in assessing penalty it can hardly be said to justify a violation of the Code. The trial panel concluded that “Notwithstanding the respected opinions of District Judges Fletcher and Birney, and notwithstanding the somewhat questionable position of defense counsel, Mize, in the trial of the case of Smith vs. Cropp, the evidence ... as revealed by the record on appeal and the transcript of the trial in the district court, is clear and convincing that respondent as attorney for the plaintiff . . . was in violation of the code of professional responsibility.” We cannot dispute this conclusion. Members of the Board are themselves lawyers with long experience in trial practice. We believe that they, as well as trial judges, are experts in that area, and that they are entitled to draw on their own expertise as well as considering the opinions expressed by members of the bench.
Mr. Turner next contends he was denied procedural due process. The gist of his argument is, first, that count III did not set forth the charge with sufficient particularity to apprise him of the alleged misconduct and by reason thereof he was unable to prepare for his defense. In the recent case of State v. Alvey, 215 Kan. 460, 524 P. 2d 747, we spoke of a similar contention in this wise:
“Since it is incumbent on an attorney to know the disciplinary rules regulating his profession we must conclude that the failure of the State Board of Law Examiners to set forth the specific disciplinary rules violated by respondent cannot be a basis for avoiding discipline. This is in accord with our statement in State v. Nelson, 206 Kan. 154, 476 P. 2d 240:
“*. . . We must conclude that where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom. It is not required that the complaint contain a reference to the specific canon of ethics which may have been violated.’ (p. 157.)” (p.464.)
“. . . It is not incumbent on the board to notify the respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result. . . .” (p. 466.)
This rule is followed in other jurisdictions. In Bar Ass’n v. Cockrell, 270 Md. 686, 692, 313 A. 2d 816, it was held that a rule providing charges be in writing and be sufficiently clear and specific reasonably to inform the attorney of the alleged misconduct does not require charges be set forth in any certain form or extensive detail.
Neither State v. Berkley, 214 Kan. 571, 520 P. 2d 1255, nor Re Ruffalo, 390 U. S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222, supports the respondent’s claim. In Berkley, the respondents were found guilty of offenses with which they had not been charged, and we entered judgment in their favor.
Ruffalo was found guilty on a count which was added to the original charges after he had testified in the hearing. The added charge was based on Ruffalo’s testimony. In reversing a judgment barring Ruffalo from practice before the federal courts, the United States Supreme Court said he had been deprived of procedural due process.
We believe the language of count III was sufficient to apprise the respondent of the incidents out of which the alleged misconduct arose.
While the panel hearing was in progress, the Smith case had not been tried on remand; it was still pending, and Mr. Mize remained as defense counsel. (We were advised at oral argument the case has since been settled.) Because of the attorney-client privilege, Mr. Turner contends he was prejudiced and deprived of due process, first, in being unable to depose Mr. Mize before trial and second, in being deprived of using Mize as a witness at the hearing. It is true that in attempting to depose Mr. Mize, the respondent was thwarted by repeated objections interposed by Mize’s counsel, invoking the privilege. The record reveals the attorney-client privilege was also invoked at the panel hearing.
Although the Mize testimony may have been unavailable while the Smith case was pending, we believe Mr. Turner is in no position to complain. At the beginning of the panel hearing, repeated offers were made to continue the hearing until after the Smith case “has been finally resolved.” The offers were refused in no uncertain terms, respondent’s counsel declaring at one point, “we must strenuously object to this continuance that is being considered by the panel. . . .” In our opinion, respondent waived any right to object on this ground.
The respondent also moved for a public trial and he complains of its denial. A proceeding in discipline is not an action within the purview of K. S. A. 60-104 providing that trials be conducted in open court. In the early case of In re Burnette, 73 Kan. 609, 85 Pac. 575, we said that the remedy of disbarment was not an action, either criminal or civil, but a special proceeding for the protection of the courts, the legal profession and the administration of justice. An attorney at law is an officer of the court and as such is a part of the judicial system of the state. (State, ex rel., v. Perkins, 138 Kan. 899, 903, 28 P. 2d 765.) Thus, a proceeding to discipline an attorney is not held to punish him but is conducted under the inherent power of the court to provide for the protection of the judicial system and the administration of justice. (In re Gorsuch, 113 Kan. 380, 384, 385,214 Pac. 794.)
In State, ex rel. Oklahoma Bar Association v. Brandon, 450 P. 2d 824, 828, (Okl.) the Oklahoma court stated:
“. . . This court has consistently held that disbarment proceedings are inquiries for the protection of the courts, the public and the profession, and that strict rules of procedure should be relaxed to the end that an attorney’s fitness to continue in the profession should bo determined on the legal and ethical merits.”
Although the rudimentary requirements of due process must be observed in disciplinary proceedings, we are satisfied that a public hearing is not essential. In regard to public hearings in discipline matters, the Supreme Court of Kentucky had this to say:
“We fully appreciate the principle of public trial. There is, however, an erroneous tendency today to equate all rights with those that are guaranteed to a defendant in a criminal prosecution, and we are not convinced that a public trial is necessary in a disciplinary inquiry conducted by the bar association. Publicity cuts both ways. Sometimes the desirabilty of having it is outweighed by the desirability of protection from it, as in juvenile matters. Usually it is the respondent himself whose protection from it is sought in a disciplinary case, but quite often there are others whose protection is equally important. . . . Under the circumstances, we cannot say that public hearing would have been desirable, and we have not been referred to any authority holding that they may be required as a matter of right.” (Kentucky State Bar Association v. Taylor, 482 S. W. 2d 574, 577, (Ky.).
For the fifth exception respondent asserts that the proceedings were in violation of Rule 209 (a) (214 Kan. fix):
“(a) All proceedings, reports and records of disciplinary investigations and hearings other than proceedings before the Supreme Court shall be private and shall not be divulged in whole or in part to the public except by order of the Court.”
The respondent’s contention that privacy was violated strikes us as being somewhat inconsistent with his demand for a public hearing. Be that as it may, respondent maintains the Board violated its own rules in permitting the complainants in other counts of the amended complaint to review the entire complaint which included, of course, count III. It is argued the rule of confidentiality was thereby breached.
No prejudice has been pointed out which can be traced to this alleged breach. That the Board may have circulated the amended complaint among all complainants would not of itself, in our opinion, vitiate either the panel report or the Board’s action adopting the same. Moreover, it might be stretching words to say that in sending the amended complaint to file few persons interested therein would amount to making it public property. We find no merit in point number five.
Respondent next complains he was not afforded the right to confront his accusers. He would thus equate this proceeding to a prosecution for crime. We have already said a proceeding in discipline is not a criminal proceeding. Hence, use of the word “accuser” is hardly justified.
In the California case of In Re Mazuran, 88 Cal. App. 272, 276, 277, 263 Pac. 339, the respondent urged he was denied his constitutional right of confrontation since whoever verified the complaint was not called as a witness. As to this claim the court said:
“We deem the contention of little merit. No- authority supports the claim. Appellant cites the time-honored provisions of the constitution to the effect that every person accused of crime shall have the right to be confronted with the witnesses against him. Without further comment we hold the argument unsound.”
To the same effect, see Ex Parte Messer, 228 Ala. 16, 152 So. 244.
As to this proceeding we note that Earl H. Hatcher, Disciplinary Administrator, signed the amended complaint “by order of the state board of law examiners” and we are advised in Mr. Turner’s brief that in proceedings held November 28, 1973, Mr. Mark Bennett, Chairman of the State Board of Law Examiners stated that the Board was the accuser. We believe it implicit in our rules relating to discipline that the Board of Law Examiners may, on its own authority, inquire into the conduct of an attorney. Rule 204 (b) (214 Kan. Iv) provides:
“(b) It shall be the further duty of every member of the bar of this state to report to the Board of Law Examiners or the Disciplinary Administrator any action, inaction or conduct which in his opinion constitutes probable cause for discipline of an attorney.”
The respondent asserts, however, that the commingling of prosecution and adjudicative functions is a patent denial of due process. We have held otherwise. In Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P. 2d 614, Dr. Morra complained that the Board acted as an investigator, grand jury, prosecutor, judge and jury. With respect to his complaint, we said:
“. • • We believe no prejudice may be presumed from the board’s prehearing investigation or its directing that a petition be prepared. In Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906, we held:
“ 'A predetermination of an issue is not indicated because an administrative board makes an informal preliminary investigation before calling a formal hearing:’ (Syl. |9.)” (p. 109.)
Similar expressions may be found in a recent decision emanating from the most high court in Washington. In Withrow v. Larkin, 421 U. S. 35, 43 L. Ed. 2d 712, 95 S. Ct. 1456, the plaintiff sued the medical examining board of Wisconsin to prevent the board from conducting a hearing to determine whether he had engaged in prohibited acts and whether his license to practice medicine should be temporarily suspended. The basic issue was whether the board could act both in an investigative and an adjudicative capacity. The court held that the combination of judging and investigative functions was not of itself a denial of due process. On page 55, the principle was clothed in this language:
“. . . The mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the board members at a later adversary hearing. . . .”
Much of what we have already said in reply to respondent’s second exception is equally applicable to exception seven, wherein Mr. Turner avows that the phrases “engaged in conduct that is prejudicial to the administration of justice” and “engaged in conduct which is degrading to a tribunal” as being too vague and indefinite to support disciplinary action.
We have previously disposed of the contention that DR 1-102 (A) (5) is unconstitutionally vague; first, in State v. Nelson, supra, and later in State v. Martindale, 215 Kan. 667, 671, 527 P. 2d 703. We see no need at this time to elaborate on what was said in those opinions.
So far as DR 7-106 (C) (6) is concerned, its language strikes us as plain enough to convey to an able trial lawyer the general idea of what is meant. The words employed are in ordinary daily use. Framed by the training and experience of twenty years trial practice the phraseology should not prove mysterious. In Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 765, 408 P. 2d 877, we spoke as follows:
“. . . The test of determining whether a statute is vague and ambiguous is whether the language conveys a sufficient definite warning as to the prescribed [sic] conduct when measured by common understanding and practice. . . .”
Finally, the respondent avers the procedure followed in processing the charges did not conform to Rule 206, that is to say, no initial complaint was filed, no investigation conducted and no copy of a complaint was provided him prior to the amended complaint.
What, if any, irregularities may have inhered in the processing of the complaints forming the bases of counts I, II and IV are of no importance here, for those counts were dismissed. So far as count III is concerned, we find no fatal procedural defect. Supreme Court Rule 206 sets out certain procedural methods of investigating complaints, which may originate from many sources. It seems clear enough, however, from Rule 206 (l) that the Board may conclude from the nature of the complaint that an investigation is unnecessary, in which case the Board may set the matter for hearing.
A determination under 206 (Z) would seem to have been in order so far as count III was concerned. That count concerned conduct which occurred during trial of a civil matter and the trial proceedings were of record. Further investigation would not seem to have been required to establish the nature of the respondent’s statements, or the precise language said to be objectionable, for both were at hand and available in the transcript and the appellate record of the Smith case.
It is therefore by the court adjudged that H. Lee Turner be and he is hereby censured by the court. Costs of this proceeding are taxed to the respondent.
Fromme, J., not participating.
APPENDIX
Throughout the entire trial, the respondent accused defense counsel of (1) being unethical, (2) trying to impeach his own client and proving her a liar, (3) bad faith, (4) trying to impeach honest answers, (5) putting words into the mouths of witnesses, (6) doing what the court had admonished him not to do, (7) playing dirty pool, (8) sandbagging witnesses, (9) trying to beat his client about, (10) abusing witnesses, (11) making untrue statements, (12) being in contempt of court, (13) perversion of justice, and (14) smear type tactics.
Respondent requested the court to admonish counsel and punish Mr. Mize, whom he frequently referred to as “the man from Salina”, a neighboring city.
The following excerpts are from the respondents opening and closing arguments in summation:
“. . . [F]or the past three days you have witnessed an unprecidented [sic] assault by a lawyer against his own client attacking his client’s credibility, trying to brand her as a liar, as concealing facts . . .
“What other tactics have they used in this case? The dirty, filthy insinuations they try to make through witnesses that have been sandbagged and approached and given half truths. They try to infer, you saw the witness yesterday said I heard the conversation something about being at the Normandy Room, dirty, the witness that saw a container in the car that no one else could see through but he knew there was some alcoholic beverage and all for the purpose of the smear type of tactics. ... If those statements in any way contradict the sworn testimony of the witness Mr. Gassoway or Mrs. Gassoway, you can rest assured they would have been up here showing the statements to the witnesses and reading them to you but that is not their way, their way is the dirty, filthy insinuations in trying to evade the responsibility against the interest of their own client in this particular case.
“. . . I am not going to ask for a show of hands on how many of you would like to go on a search party with Mr. Mize for truth and think you will be successful but in your own mind just ask yourselves that question. For example, he made the statement about the lack of wealth of the defendant and he told you that she’s not here this afternoon because she is ill. Of course, she came I think shortly after noon she became ill and was as a matter of fact she was vomiting in a little room with the door open there and I told Mr. Mize about it and he stayed in that seat and did nothing. Cheryl’s mother had to help her. That is the way it is, ladies and gentlemen of the jury.
“He talks about sympathy. What a word to come from Mr. Mize. . . . I am telling you here and now when you go into a jury room you make your hearts as hard as the heart of Jim Mize from Salina, Kansas and scratch sympathy out of your mind. . . .” | [
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Per Curiam:
Defendant-appellant Charles Rodney McMillan was convicted of aggravated battery as defined in K. S. A. 21-3414. His points on appeal are that the instructions given by the court were erroneous in three respects and the court erred in refusing to give an instruction submitting the lesser offense of simple battery.
As to the instructions given, the record does not disclose that objections to any of them were made at the trial. Looking at the instructions as applied to the evidence we find them to be free from error.
On appellant’s point that the lesser offense should have been submitted to the jury, the record shows no evidence to support a finding of common battery. The victim was struck six times on the head with a hammer. The defense was self-defense. Intent to injure was admitted. Appellant was guilty of aggravated battery or nothing. The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
This action involves a dispute over a boundary line between the owners of adjacent properties located in Doniphan County. The trial court found that the land in dispute consisted of approximately one acre and that a boundaay line had been fixed by agreement as claimed by appellee (Margaret L. Landrum [now McLain]) and third party appellees (Cheril McKay and Shirley A. Swartz). Judgment was entered for appellees permanently enjoining appellants (Howard Kyle Taylor and Bradley Jourdon Taylor) from interfering with appellees’ peaceful possession. The controlling issue on appeal is whether there is evidence to support the findings of the trial court.
The plaintiff, Margaret L. McLain, and her two daughters, Cheril McKay and Shirley A. Swartz, are joint owners of all of the Southwest Quarter of Section 14, Township 1, Range 19, lying south and west of the Missouri River. Defendants, the Taylors, own the east fifty acres of the Southeast Quarter of Section 15, Township 1, Range 19, lying adjacent to the north and west of the plaintiffs’ property. The boundary line in dispute is the common line between the two tracts which runs easterly from Kansas Highway No. 7 to the Missouri River at a point where both tracts comer on the west bank of the Missouri River. Plaintiff, Margaret L. McLain, and her husband at the time, Virgil E. Landrum, acquired title to their property as tenants in common by pinchase from Flavel C. Nuzum on May 4, 1963. On the death of Virgil E. Landrum in 1968, Margaret became the owner of an undivided three-fourths interest and her two daughters, Cheril McKay and Shirley A. Swartz, an undivided one-eighth interest each. Defendants purchased their tract from the estate of Earl Dunn in 1971.
For convenience the appellees (Margaret L. McLain and her daughters, Cheril McKay and Shirley A. Swartz) will be referred to as plaintiffs, and their land will be referred to as the east tract; the appellants (Howard Kyle Taylor and Rradley Jourdon Taylor) will be referred to as defendants and their land as the west tract.
Plaintiffs claimed that Virgil Landrum and Earl Dunn, defendants’ predecessor in title, entered into an oral agreement which ratified and confirmed the boundary between the respective tracts as a roadway extending from Kansas State Highway No. 7 to a large cottonwood tree on the bank of the Missouri River. The roadway was identified by testimony and photographs. It was marked by vehicle tracks and a culvert, or tube located in the roadway, about midway between the highway and the river bank. Plaintiffs offered testimony tending to show that the roadway had been recognized as the boundary by Flavel Nuzum, their predecessor in title, and Earl Dunn for many years. Defendants, on the other hand, claimed the land in question consists of about three acres; that it was filled in by accretion; and that the true boundary was a line established by a survey made by D. V. Fehrman, a surveyor, in 1956. The Fehrman line was reestablished by a survey made by the Riddle Engineering Company in 1972. This line was roughly parallel to and about two hundred feet south and east of the roadway. There was no dispute concerning the boundary until shortly after defendants purchased the west tract from the Dunn estate when they caused a portion of the land south and west of the roadway to be plowed and disked. This lawsuit followed.
In a trial to the court, sitting without a jury, both parties submitted considerable evidence much of which was in conflict. In rendering judgment the trial court made findings of fact and conclusions of law which set out all of the relevant facts which the court found to have been established by the evidence.
In findings Nos. 1 and 2 the court found the ownership of the parties to be that described in their respective deeds. Findings Nos. 3 to 10, inclusive, read as follows:
“3. Nuzum and Dunn recognized that the boundary between these two tracts of land was a road from Kansas State Highway Number 7, to the Missouri River, at which point was a large cottonwood tree.
“4. A survey was made of part of Section Fifteen (15) by D. V. Fehrman in 1956, but there was no testimony that this survey was intended to establish a boundary between these two tracts of land and no fence was ever erected, nor was there ever any line established on the ground.
“5. In 1972 the Riddle Engineering Company was requested to reestablish the survey line made by D. V. Fehrman in 1956. Mr. Riddle testified that he was not requested to establish a boundary between these two tracts.
“6. Virgil E. Landrum and Margaret L. Landrum, husband and wife, purchased the real estate described in finding number one from Flavel C. Nuzum and his wife in 1963, and shortly thereafter, Virgil Landrum and Earl Dunn agreed that the road heretofore described would be the boundary between their two tracts.
“7. This line was so considered until shortly after the defendants purchased the tract described in finding number two, at which time, in the spring of 1972, they caused a small portion of ground south and west of this road to be plowed and disked.
“8. Shortly thereafter Margaret Landrum caused a fence to be constructed along the boundary that was agreed to between her husband and Earl Dunn. This law suit followed.
“9. The Missouri River has been stable in this area since about 1911, except for a short period in the year 1933, when the river cut slightly into the bank. At no time did the river ever cut away from the bank.
“10. The land in dispute is approximately one acre and is not accretion land.”
In finding No. 11 the trial court ruled that defendants are permanently enjoined from interfering with plaintiffs’ peaceful possession to that portion of the Southwest Quarter of Section 14, lying south and west of the Missouri River, except that portion of the quarter section lying north and east of the roadway, which the court determined to be the boundary line. Judgment was rendered accordingly.
On appeal defendants raise numerous points of error, most of which are leveled at the trial court’s findings of fact.
In their first point defendants claim the trial court erred in finding that plaintiffs owned the respective undivided interests in the property described. Defendants’ argument on this point is not clear. As we are best able to ascertain from their brief, the point which defendants attempt to make arises from a discrepancy between the description of their land as alleged in the pleadings and admissions made by plaintiffs’ counsel in his opening statement. The description in plaintiffs’ deed to the east tract conveyed all of the Southwest Quarter of Section 14 south and west of the Missouri River. Apparently, plaintiffs’ counsel admitted in his opening statement that plaintiffs actually owned less and were claiming less in that they actually claimed only that part of the quarter section lying south of the roadway boundary line. The west line of plaintiffs’ east tract, if extended to the river, would have included a small triangular tract lying north of the roadway bounded on the west by the west line of the Southwest Quarter of Section 14, and on the north and east by the river. In his opening statement at trial plaintiffs’ counsel admitted they were claiming less than their deed called for. He said:
“. . . [W]e are not including all of the land according to the terms of our abstract, we are telling the Court at this time we are relying upon a lesser amount which was agreed upon between the parties of the two adjacent land owners, the Dunns’ and the Landrums. . . .”
Our examination of the trial court’s memorandum reveals this discrepancy in that in finding No. 1 the trial court found plaintiffs owned all of the quarter section lying west and south of the river. We find nothing in the record indicating that any issue was presented to the trial court concerning this discrepancy, in any event the matter is cleared up in the court’s finding No. 11 and the journal entry of judgment wherein the trial court excepts from plaintiffs’ land that portion of the quarter section lying north and east of the roadway.
An appellate court will attempt to harmonize apparently inconsistent findings of the trial judge and will not read into them an unwarranted inconsistency. Even if findings appear to- be inconsistent, the decision of the trial court may be sustained on the basis of those findings which allow the conclusion reached by the court below, if they are supported by evidence. (5 Am. Jur. 2d, Appeal and Error, § 844, p. 288.) The question for the appellate court is whether the judgment is correct. (General Leasing Corp. v. Anderson, 197 Kan. 327, 416 P. 2d 302; and Foster v. City of Augusta, 174 Kan. 324, 256 P. 2d 121.)
It is clear that the trial court intended to and did establish the mutual boundary running along the roadway extending from Kansas Highway No. 7 to the river bank.
Defendants challenge a number of findings of the trial court on the ground of insufficiency of the evidence upon which the findings were based. In this connection it must be remembered that on appeal it is not the function of the appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. The reviewing court is concerned only with evidence which supports the trial court’s findings, not with evidence which might have supported contrary findings. (Parsons Mobile Products, Inc. v. Remmert, 216 Kan. 256, 531 P. 2d 428.)
When a case is tried to the court and the evidence is heard orally, the trial court’s findings in the case have the force and effect of a jury’s verdict and if supported by substantial competent evi dence the findings will not be disturbed on appellate review. (McAdam v. Firemans Fund Insurance Co., 203 Kan. 123, 452 P. 2d 851.)
Defendants assail the trial court’s finding that the parties’ predecessors in title established the roadway as the mutual boundary by agreement. As previously noted, the trial court was presented with evidence which indicated that the roadway had been treated as the boundary for years. Additionally, testimony established that a mutual oral agreement fixed the boundary at the old road.
Mrs. McLain testified that not too long after she and her husband (Virgil) bought the property in 1963, her husband and Earl Dunn agreed that the boundary was along the old roadway which she pointed out on an aerial photograph, which had been admitted into evidence. Mrs. McLain testified that she, her husband and Earl Dunn were in the front yard of their home; that part of the roadway was visible from where they were standing;, and that they had been talking about the property, crops and so forth, when the two men agreed upon the line. Mrs. McLain further testified that she and her husband chopped brush and bulldozed out trees, up to the roadway; and that when crops were divided all below or south of the road was theirs.
Floyd Edgar Nuzum, a son of plaintiffs’ predecessor in title, testified that he was familiar with the old roadway and the tube or culvert; that when his parents owned the land it was farmed up to the old road and that when he harvested crops for Mr. Alfrey, a common tenant of both landowners, he divided the crops at the road. Nuzum further testified that he served as an appraiser for the Dunn estate and that — "In making the appraisal for the estate, I considered the dividing line between the Landrum and Dunn property to be where the tube is and where Mrs. Landrum now has her fence.”
Defendants produced testimony to the contrary concerning the division of crops, but we believe what has been related demonstrates there was ample evidence to support the trial court’s finding of an agreed boundary fine.
It is the general rule that boundary lines between adjacent properties are to be determined by reference to the deeds and the intention of the parties as reflected by the descriptions of the properties therein. (Fritzler v. Dumler, 209 Kan. 16, 495 P. 2d 1027.) However, as pointed out in Fritzler, there are exceptions to the general rule. The principles applicable to a case such as that at bar, were enunciated in Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019, wherein we held:
“Where parties by mutual agreement fix boundary lines and thereafter acquiesce in the lines so agreed upon, they must be considered as the true boundary lines between them, even though the period of acquiescence falls short of the time fixed by statute for gaining title by adverse possession.
“The owners of adjoining tracts of land may, by parol agreement, settle and permanently establish a boundary line between their lands, which, when followed by possession according to the line so agreed upon, will be binding upon the parties and their grantees. Such an agreement, followed by possession, is not obnoxious to the statute of frauds.” (Syl. f¶ 1 and 2.)
The foregoing principles have been applied by this court in a long line of cases. (See, Moore v. Bayless, 215 Kan. 297, 524 P. 2d 721; Beams v. Werth, 200 Kan. 532, 438 P. 2d 957; In re Moore, 173 Kan. 820, 252 P. 2d 875; Fyler v. Hartness, 171 Kan. 49, 229 P. 2d 751; and Feterson v. Hollis, 90 Kan. 655, 136 Pac. 258.)
It has been held that even though a line agreed to by adjoining property owners may no.t be exactly correct, it becomes the true dividing line between the lands by virtue of such an agreement, even though a subsequent survey establishes, a different line. Such a survey does not determine title to land under controversy. (Moore v. Bayless, supra, p. 300, and cases cited therein.)
Cases in which the evidence was found insufficient to establish an agreement regarding a boundary line are to be distinguished from the present case where an agreement was found to exist by the trial court. (See, Fritzler v. Dumler, supra, and cases cited therein.)
Defendants contend that even if the boundary was established by agreement the agreed line was not sufficiently marked. The rule supporting defendants’ position is expressed in 12 Am. Jur. 2d, Boundaries, § 78:
“It is now a well-settled principle of law that an unascertained or disputed boundary line dividing the lands of adjoining owners may be permanently and irrevocably established by a parol agreement of the adjoining owners. . . . It is, however, essential to the validity and binding effect of such agreement that the boundary line fixed by the agreement be definite, certain, and clearly marked, and that it be made by the adjoining landowners with reference to an uncertain or disputed boundary. . . .” (pp. 614-615.)
An aerial photograph admitted into evidence discloses that the old roadway and cottonwood tree comprising the agreed boundary are clearly marked. The roadway and tube were described by several witnesses. The trial court’s findings evidence its satisfaction that the line was sufficiently established by monuments. Under such circumstances, this court is satisfied that sufficient evidence exists to support the trial court’s determination.
Defendants contend that they owned the strip of land in question by adverse possession. The record fails to indicate that this theory was ever presented to the trial court. Where it does not affirmatively appear that a question raised on appeal was presented for determination by the trial court, this court does not consider it on review. (In re Johnson, 210 Kan. 828, 504 P. 2d 217; and Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798.)
Finally, defendants complain (1) that the trial court improperly admitted into evidence certain photographs of the land in dispute which were offered by plaintiffs; (2) that evidence proffered by plaintiffs of their ownership of land was at variance with the pleadings; and (3) that sufficient evidence does not exist to support the trial court’s findings that the Missouri River has been stable in the disputed area since 1933, that the land in dispute comprises approximately one acre, and that no evidence was introduced which showed that surveys were undertaken to establish boundary lines.
Concerning defendants’ assertion that the trial court improperly admitted plaintiffs’ photographic exhibits, it must be observed that ordinarily the question of admissibility of photographic evidence rests within the sound discretion of the trial judge. (Kirsch v. Dondlinger & Sons Construction Co., Inc., 206 Kan. 701, 482 P. 2d 10.)
Defendants argue that no proper foundation evidence was presented by plaintiffs to support the photographic evidence. Generally, before a photograph may be admitted into evidence its accuracy or correctness must be proved. The verification of a photograph preliminary to its admission contemplates proof that it accurately represents the person, place or thing photographed. State v. Evans, 115 Kan. 538, 224 Pac. 492; and cases cited in 9 A. L. R. 2d in an annotation commencing at page 899.)
In the case at bar Mrs. McLain identified the photographs and testified that they correctly represented the scenes depicted. Mrs. McLain fixed the dates when the photographs were taken and was present when Mr. Brady, her counsel, took them. Such testimony constitutes sufficient verification to allow the trial court to admit the photographs as evidence.
With respect to defendants’ claim of variance between pleading and proof, the record discloses no objection made on this ground at any stage of the trial. Under the provisions of K. S. A. 1974 Supp. 60-215 (b) objection now comes too late. A party impliedly consents to the introduction of issues not raised in the pleadings by his failure to object to the admission of evidence relating thereto. (Moore v. Bayless, supra, p. 302.)
Concerning the court’s finding that the river has been stable in the area since 1911, Floyd Nuzum testified that he had known the land for over fifty years and that — “They stopped the river from cutting in 1911. No part of that land got cut out.”
We are convinced, from our examination of the record, that ample competent evidence exists to support the findings of the trial court in each instance where challenged by defendants.
The judgment is affirmed.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is a condemnation action in which the State Highway Commission appeals from an order granting the landowners’ motion for a new trial.
The facts leading up to the appeal are not in question and will be related solely for informative purposes.
G. Dewey McClay and Vera McClay were the owners of real estate located in Franklin County, which was condemned for highway purposes by the Commission. Vera McClay died subsequent to the institution of the condemnation proceeding. Thereafter Vera Freone Hollinger, the duly appointed administratrix of the decedent’s estate, and McClay appealed to the district court of Franklin County from the award made by the appraisers in the initial proceeding. The case was tried in district court by a jury, which returned a general verdict for the landowners along with answers to submitted special questions. Thereupon the trial court approved the verdict and findings and rendered judgment in accord therewith. Thereafter, and in due time, the landowners filed a motion for a new trial, based on numerous grounds recognized by statute (G. S. 1949, 60-3001). The trial court reserved its ruling on such motion and did not pass thereon until the following term of court, at which time it sustained the motion and in connection therewith made a statement which appears to have been responsible for the appeal subsequently perfected by the Commission from the order granting the landowners a new trial.
As abstracted pertinent portions of the statement made by the trial court, relied on by appellant as affording grounds for reversal of the order granting a new trial, read:
“The Court: In the McClay Appeal, No. 20-541, this case was tried to the jury in last November, 25th and 26th, of 1957. And the motion was argued on April 16th and it has been under advisement since then. This is a case in which the jury returned an award, the appraisers returned an award of something over $10,000.00 and the jury returned a verdict of $6,862.Í0. As I related to the attorneys at the time of the motion for new trial, when they concluded the arguments on the motion for a new trial, during the trial of this case the only witnesses for the Highway Commission as I remember it who went into the matter of values was Mr. Weien. And I detected from his demeanor on the stand, and also from probably some of the previous testimony and the way he had testified in previous cases that he had not disclosed to the jury his full view on the matter of damages. And I felt that so strongly that the next morning I went by his office and discussed it with him and he told me that was the situation. He had testified only as to what he thought the difference in the sale value of the entire tract was and he also had a figure that he thought was damages that he should have revealed to the jury that in his estimation the damages included not only that but 395 rods of fence at a total estimated value of damage of $987.50 and a miscellaneous figure, due to the change in the situation at the little house and so forth, of $1,000.00, which made $1,987.50 that he had that he figured would have been in his estimate of damages that was not conveyed to the jury. And for these reasons I think I will grant a new trial in that case.” (Emphasis supplied.)
Stripped of all excess verbiage the over-all question raised by appellant with respect to the propriety of the ruling on the motion is that since it appears from the foregoing statement the trial court made an independent investigation as to the merits of its ruling, that action was so improper as to compel a reversal of such ruling on appellate review. It may be conceded the action of which appellant complains was irregular and cannot be sanctioned or approved. Even so, under the confronting facts and circumstances, it does not follow, as appellant contends, that action requires or warrants a reversal of the ruling granting a new trial.
The rules of law governing appellate review of claims that trial courts have erred in granting motions for a new trial are well-established in this jurisdiction and universally applied. One of such rules is that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside and grant a new trial. Another is that the court in granting such a motion performed that duty, exercised its independent judgment, and determined whether the verdict should be set aside. Other such rules are to the effect (1) that an order of a trial court allowing a motion for a new trial will not be reversed unless this court is satisfied its action was wholly unwarranted and clearly amounts to abuse of discretion and (2) that the granting of a motion for a new trial rests so much in the trial court’s sound discretion that its action will not be held to be reversible error unless it can be said the party complaining thereof has clearly established error with respect to some pure, simple and unmixed question of law. For just a few cases, citing numerous other decisions, where the foregoing rules are stated, considered, discussed and applied, see Bateman v. Roller, 168 Kan. 111, 211 P. 2d 440; Schroeder v. Texas Co., 169 Kan. 607, 219 P. 2d 1063; Moon v. Lord, 172 Kan. 139, 238 P. 2d 506; Gould v. Robinson, 181 Kan. 66, 309 P. 2d 405.
Nothing would be gained by an extended discussion of other contentions, all founded on the premise to which we have heretofore referred, advanced by appellant in support of its position the general verdict of the jury and the findings made in answers to the special questions should be permitted to stand and the order made setting them aside and granting a new trial should be reversed. It is enough to say that resort to the heretofore quoted remarks of the district judge clearly reveals that he was. dissatisfied with the verdict and special findings of the jury, otherwise he would not have resorted to the unusual procedure of talking to the witness (Weien) in order to make certain that his own recollection, respecting the state of the record and the fairness of the trial had by the appellant, was correct. Moreover, we are satisfied the record makes it appear the sole motive of such judge in talking to Weien was to make certain that all parties had been afforded a fair trial and that after doing so he exercised his independent judgment in determining whether he was dissatisfied with the verdict and the motion for a new trial should be sustained. In such a situation, in the absence of any claim or affirmative showing — and there is none — that the action of the trial judge in granting a new trial was arbitrary, capricious, or influenced by bias or prejudice, we are convinced that application of any one or all of the established rules, to which we have heretofore referred, precludes this court from sustaining or upholding appellant’s claim the trial court committed reversible error in sustaining the motion for a new trial.
In conclusion is should perhaps be stated that in its brief appellant, without stressing the point, directs attention to the fact the motion for a new trial was presented at one term and granted at a subsequent term. No claim is made that such motion was not filed within the time required by statute. Under these circumstances we are at a loss to know why the subject is mentioned. Our decisions hold that where a motion for a new trial has been duly filed, the jurisdiction of the court is not lost by the fact such motion was not considered and determined until after several terms of court had passed (Armourdale State Bank v. Hoel, 120 Kan. 130, 242 Pac. 481; Hoffman v. Hoffman, 156 Kan. 647, 135 P. 2d 887; Barstow v. Elmore, 177 Kan. 30, 276 P. 2d 360; State Investment Co. v. Pacific Employers Ins. Co., 183 Kan. 229, 326 P. 2d 303).
The order and judgment of the district court granting a new tidal is affirmed. | [
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|
The opinion of the court was delivered by
Harman, C.:
Chester Irving was charged with aggravated robbery and possession of a pistol within five years of a felony conviction. He was convicted by a jury of the first offense and acquitted of the latter. His motion for new trial was denied, he was sentenced upon the robbery charge and now appeals.
Evidence for the prosecution revealed that shortly after 9:00 a. m. on Tuesday, March 5, 1974, the Government Employees Credit Union, located at the comer of Topeka and Central avenues in Wichita was held up and robbed by three armed black males. Defendant was not one of the three that entered the Credit Union building; he was charged as a principal in the affair on the theory he actively participated as a driver of the getaway car.
During the robbery a silent alarm at the credit union was activated which was relayed to the Wichita police department. A police radio broadcast was immediately made of the fact a robbery was in progress at the credit union. Two police officers, detectives Burnett and Zettl, who were about four blocks from the scene, responded to the call. As they arrived at the credit union they noticed a police car at the front of the building and they also saw three men enter the nearby alley. The two detectives then drove their automobile around the block and entered the alley from the opposite direction in order to intercept the three they had observed.
When they entered the alley the two detectives saw the same trioi walking southward toward them. As the detectives were leaving their car the three men started back toward the opposite direction. The detectives identified themselves as police officers and ordered the men to stop. One of the three drew a pistol from his coat and fired at the detectives, who returned the gunfire, and the three then ran west between two buildings toward Topeka avenue. Detective Burnett went southward back down the alley to Third street, then proceeded west on it toward Topeka while Zettl proceeded northward in the alley in the police car, meanwhile broadcasting events on his radio. Zettl next observed the three robbers return to the alley and again proceed southward toward Third street. The three then jumped into' the back seat of a cream colored Pontiac parked at the curb next to the alley on the north side of Third street. The car headed west on Third street. Meanwhile a third officer, Detective Glynn, in response to police broadcasts, had approached the intersection of Third and Topeka in a panel truck where he saw Detective Burnett shooting at the cream colored Pontiac. Glynn turned his vehicle so as to block the intersection and was struck by the Pontiac. The four occupants of the latter were apprehended. Defendant Chester Irving was the driver of the Pontiac. The three occupants in the back seat were Aaron W. Devine, Willie McKinney (also referred to as McKenzie) and defendant’s brother, William W. Irving.
Defendant testified in his own behalf: The weekend prior to the robbery while washing his car at his home he overheard his brother William, Devine, McKinney and a Ray McConnecky (also referred to in the record as McConnethy) planning a robbery; he did not participate in the discussion or the planning; that evening he asked his brother, who was younger than he, if he were really serious about participating in the robbery; his brother assured him he was not going to go through with it; on the morning of the robbery defendant left home for his classes at Butler County Junior College at El Dorado; his route took him by the shop where his brother William worked; he stopped to see if William would do some work on his car; however, William was not at work and he became worried that his brother might be participating in the robbery; he decided to miss his first-hour class at school and proceeded to the area of Topeka and Central, the vicinity in which he had overheard the robbery was to occur; there he was looking for a red Chevrolet driven by Ray McConnecky so that he could persuade his brother to desist from crime and return to his work; his brother had recently participated in two robberies with McConnecky; he drove down Central avenue past Topeka but did not see McConnecky’s vehicle; he then circled the block intending to come back north on Topeka in a further effort to locate the red car; when he got near Topeka he remembered it was a one-way street going in the opposite direction so he parked his car west of the alley on the north side of Third street; he saw the detectives’ vehicle proceed northward up the alley and thereafter he heard voices and shots; he saw the two detectives go in opposite directions; later he heard more gunfire; after a short interval his brother, McKinney and Devine “dived” into the back seat of his car and said, “Take off, one of us has been hit”; one shot hit the windshield; he drove off with the sole purpose of getting away without anybody getting hurt and then talking the three into surrendering to the police; he had no gun and no prearranged plan to meet the three men on Third street,
Defendant’s brother William, who pled guilty to the robbery, testified that Ray McConnecky took him, McKinney and Devine to the credit union that morning and was to meet them at the back door after the robbery; when the three emerged following the holdup McConnecky was not there; they decided to go down the alley to find a cab; he first noticed his brother Chester’s car from a distance as it drove by and later saw it parked on Third street; he had no idea the car would be parked there; the three robbers had the four guns that were found in the back seat of defendant’s car; defendant had not participated in planning the robbery.
Defendant-appellant’s principal point on appeal is that the court’s instructions No. 2 and No. 6 were deficient because neither of the words “knowingly” nor “intentionally” was used in them. He argues that omission of these terms authorized the jury to convict one who unknowingly or unintentionally aids in the commission of a crime. Appellant acknowledges he did not at trial object to tibe instructions upon, this ground but urges he may now assign their inadequacy as error under K. S. A. 22-3414 ( 3) because they were clearly erroneous.
Appellant correctly points out that in order to be guilty of aiding and abetting in the commission of crime the defendant must willfully and knowingly associate himself with the unlawful venture and willfully participate in it as he would in something he wishes to bring about or to make succeed (State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P. 2d 703; K. S. A. 21-3205 [1]).
The instructions complained of are as follows:
“No. 2. To establish the charge against defendant named herein, the state must prove each of the following elements:
“1. That one or more of the persons named in the Information took money belonging to the Government Employees Credit Union from the presence of employees of said credit union.
“2. That such taking was by threat of bodily harm to said employees.
“3. That one or more of the persons named in the Information were armed with a deadly weapon.
“4. That the defendant aided the perpetration of said robbery in the capacity of driver of a get-away car.
“5. That this occurred on or about the 5th day of March, 1974 in Sedgwick County, Kansas.
“No. 6. If two or more persons jointly participate in the Commission of a crime, all participants are equally guilty without regard to the extent of their participation.”
The instructions were not phrased in the language of K. S. A. 21-3205 (1) as they might well have been in accord with our suggestion in State v. White, 211 Kan. 862, 864, 508 P. 2d 842, 844. That statute provides:
“Liability for crimes of another. (1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.”
See also PIK Criminal, 54.05.
The failure to mention the words “knowingly” or “intentionally” in the two instructions complained of does not of itself, however, warrant the grant of new trial. The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions in the case (State v. Ingram, 211 Kan. 587, 506 P. 2d 1148).
The trial court here also gave the following instructions:
“No. 1. In Count 1 of the Information the state charges that on March 5th, 1974, the defendant, along with William Irving, Aaron Devine and Willie McKinney, did commit the crime of Aggravated Robbery by taking money belonging to the Government Employees Credit Union at 405 East Central, Wichita, Sedgwick County, Kansas, from the presence of employees of said Credit Union, by threat of bodily harm to the person of said employees and while armed with dangerous weapons, specifically, a ,3£ caliber revolver, a .38 caliber revolver, a .44 caliber revolver, and a .410 caliber shotgun pistol.
“The state alleges that the defendant Chester Irving’s participation in this robbery was in the capacity of driver of a getaway car. [Emphasis supplied.]
“No. 5. The intent with which an act is committed, being but the mental state of the person committing it, direct proof of such intent is not required, but it may be proved by any competent evidence, direct or circumstantial. Such intent, however, must be established by the weight of evidence required by these instructions.”
It is true the conduct upon which appellant was convicted was of a nature wherein it was the intent which made his behavior, otherwise innocent, criminal. Considered as a whole, we think the jury was so instructed. Had the matter been called to the court’s attention the instructions might have been amplified on this point. As it was, the jury was twice told appellant was charged as participating in the robbery as driver of a getaway car. In the instructions it was not stated that appellant had simply driven an automobile from one place to another at the time in question — his role was specifically pinpointed, albeit in conclusory terms. Robbery was defined. Instruction No. 5 focused attention upon the element of intent, or knowledge, with which an act is committed and how that intent may be shown. No. 6 referred to joint participation. We think all these instructions, taken together, sufficiently advised the jury as to what had to be shown in order to convict appellant. They cannot be said to be clearly erroneous.
Appellant relies heavily on the ultimate ruling in State v. Schriner, supra, but there the instruction on aiding and abetting was a clear misstatement of the law since it stated defendant could be convicted whether the aid was intentional or unintentional. Such is not the import of the instructions here. Appellant was not prejudiced by them.
Appellant’s other contention is that his counsel’s closing argument to the jury was improperly limited by the trial court. All the court did in this respect was to limit the argument to evidence admitted at trial. The limitation went to counsel’s allusion to testimony on a collateral matter which had already been excluded by the trial court. No complaint is made with respect to the initial exclusionary ruling. Argument of counsel is to be confined to the questions at issue and the evidence relating thereto and such in ferences, deductions and analogies as can reasonably be drawn therefrom. It is improper for counsel in his argument to the jury to comment on evidence which was excluded by the court when offered. There was no impropriety in the ruling complained of.
The judgment is affirmed.
approved by the court.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant-appellant (Robert S. Curtis) appeals from jury convictions of attempted burglary (K. S. A. 21-3715), possession of burglary tools (K. S. A. 21-3717), speeding (K. S. A. 1973 Supp. 8-532, Repealed, LaWs of 1974, Ch. 33, Sec. 8-2205), eluding an officer (K. S. A. 8-504, Repealed, Laws of 1974 Ch. 33, Sec. 8-2205), and felony theft (K. S. A. 21-3701).
The arrest of defendant resulted from a series of events occurring during the night of April 10-11, 1973. At 11:30 the night of April 10, a light blue 1967 Ford automobile was reported stolen by the owner — George H. Gower of Wichita. The automobile had been taken from the parking lot of the Seneca Bowl in Wichita. In the early morning horns of April 11, Officer Bob Odell of the Cowley County Sheriff’s Department was patrolling in the City of Burden, about thirty-five miles southeast of Wichita. While on patrol, Officer Odell discovered that the hinge pins had been removed from the rear door of Henderson’s Drug Store in Burden. Odell also found pry marks on the door, some debris and an army duffel bag. Odell picked up the items and as he continued his patrol he observed a 1967 blue Ford automobile turning east on Highway 160. Odell pursued the automobile turning on his red light and siren. Odell got close enough to the blue Ford to observe the license tag number and what appeared to be three silhouettes in the automobile. Odell pursued the blue Ford at a high speed east on Highway 160 about six miles to Cambridge where it turned north on a county road headed toward Latham. Odell testified that approximately five miles north of Highway 160 the blue Ford left the road, went through a barbed wire fence, and came to a stop on the Ferguson ranch. Odell stopped his automobile about one hundred feet behind the Ford. Odell could not identify the occupants as they left the automobile, because of the dirt and debris thrown into the air by the speeding automobile. Odell then radioed for assistance from other officers. Officer James Lazelle soon arrived and he and Odell searched the area and took photographs of the abandoned Ford automobile. Odell and Lazelle proceeded back toward Burden and on the way, at a point about three miles east of Burden, they found a black attache case which contained various burglary tools. Odell testified that, while he was in pursuit of the blue Ford, he had seen what appeared to be a case thrown from a window of the Ford at a point about three miles east of Burden.
In the meantime, Officer Wallace Parks of the Butler County Sheriff’s Department was on patrol in the vicinity of Douglass, about twenty miles west of Latham. Parks received a radio transmission concerning the blue Ford fleeing east from Burden. Parks was directed to patrol an area south of Latham. Parks continued to patrol until about 7 a. m., when he was informed, by another officer by radio, that a single unknown individual had stopped at the Calvin residence and asked for gasoline. Parks was informed by the other officers, who had talked to Mrs. Calvin, that the unknown individual had left the Calvin residence with Mr. Calvin and his son in the Calvin pickup and that they were proceeding north toward Latham.
Parks testified that he was well-acquainted with the Calvins, knew the location of their residence, and knew the route which would probably be taken by the Calvins if they proceeded north from their place — Parks stationed himself accordingly. He recognized the Calvin pickup as it approached and turned on the red light on his patrol car. As the Calvin pickup came to a halt, Officer Parks approached with his drawn pistol and ordered the unknown suspect, who was seated between the Calvins, to step out of the vehicle. After a pat down search, in which Parks removed several items including a pair of gloves from the subject’s person, the subject was arrested and was later identified as defendant Curtis. While Parks was engaged in the “frisk” or “pat down search” of defendant, Verdie Cox, of the Cowley County Sheriffs Department, arrived at the scene.
Officer Bill Brooks, who participated in the search of the Latham area, was called as a witness for defendant. Brooks testified that he participated in the arrest of two other individuals in the Latham area around 10:30 or 11:00 a. m., the morning of April 11, 1973. The two individuals were arrested in connection with the Henderson Drug Store incident.
Defendant specifies three points of error on appeal: (1) Erroneous admission of certain physical evidence taken from defendant as a result of a search and seizure made in violation of defendant’s constitutional rights; (2) submission of an erroneous instruction pertaining to defendant’s liability for crimes committed by another; and (3) the trial court erroneously instructed the jury and restricted defense counsel concerning the prosecution’s burden of proof.
In their briefs both parties made numerous references to the trial transcript which necessitated our calling for the transcript which we have at hand.
Defendant’s first point centers on the admission into evidence of the gloves taken from him at the time of his arrest. Flecks of paint were found on the gloves which, according to Officer George Love, of the Wichita Police Department, matched the color paint samples removed from the door of the Henderson Drug Store. Officer Love had been employed in the Wichita Pólice Forensics Laboratory for thirteen years. He had previously made microscopic paint examinations and color comparisons. He did not make a chemical analysis of the paint samples in question, but only a microscopic examination to ascertain if the samples matched in color. Officer Love’s failure to make a chemical analysis goes to the weight and credibility of his testimony, rather than to the question of its admissibility.
Defendant’s basic contention concerning the admission of the gloves is that they were the fruit of an unlawful search and seizure. Defendant argues that the evidence failed to establish probable cause to justify the arrest of defendant and that the use of the gloves taken from defendant’s person as a product of a search, following an unlawful arrest, denied defendant the constitutional safeguards of the Fourth and Fourteenth Amendments to the Constitution of the United States and Section 15 of the Bill of Rights to the Kansas Constitution. Defendant raised the issue by a pretrial motion to suppress which was denied by the trial court. Defendant again objected to the admission of the gloves at trial.
Officer Parks was the only witness at the hearing on the motion to suppress. His testimony at trial was essentially the same as that given on the motion to suppress. At trial, testimony of other officers tended to corroborate the testimony of Parks concerning the knowledge possessed by him at the time of the arrest. In overruling defendant’s motion to suppress the trial court found:
“2. That Officer Parks had probable cause to make an arrest and further at the time he transferred the custody of the Defendant to the Officer from Cowley County, that they had the right to inventory his personal effects and take into custody the personal effects that they found on him since it was a lawful arrest.
“3. That the Court further finds that under all the circumstances as testified to by Officer Parks, the radio, stranger in the vicinity, and the fact that he had known the Calvins for quite some time, gave further impetus to the probable cause factor involved and further the testimony of Officer Parks as to the condition of the clothing of the Defendant and his knowledge of the terrain of the area further added impetus to his knowledge of probable cause.”
At the outset, it should be noted that in the instant case we are concerned with probable cause for a warrantless arrest under K. S. A. 22-2401, as distinguished from the lesser requirements of a stop and frisk authorized by K. S. A. 22-2402. Obviously, Officer Parks had sufficient knowledge to meet the requirements of 22-2402 in stopping the Calvin pickup, but as we pointed out in State v. Jackson, 213 Kan. 219, 515 P. 2d 1108, the reasonable suspicion required under 22-2402 does not rise to the level of probable cause required by 22-2401. In Jackson, wherein we were dealing with stop and frisk, the officer had no prior knowledge concerning the commission of any crime, nor had he observed any conduct on the part of the subject which would reasonably arouse suspicion. Our decision in Jackson is of no aid in resolving the issue presented by the facts herein.
The basic question presented is whether Officer Parks had probable cause to arrest defendant. K. S. A. 22-2401 (c) (1) provides, inter alia, that a law enforcement officer may arrest a person when he has probable cause to believe that the person has committed a felony. The provisions of the statute referred to simply codify the existing case law of this jurisdiction authorizing the warrantless arrest for a felony if the officer has probable cause. (See discussion in Vol. 20 Kansas Law Review “Arrest Under The New Kansas Criminal Code,” by Keith G. Meyer, pp. 685, 707.)
In State v. Lamb, 209 Kan. 453, 497 P. 2d 275, we noted the similarity in evidentiary requirements with respect to probable cause to support a warrantless arrest and that required for the issuance of a search warrant by a magistrate, we said:
“Evidence sufficient to support probable cause for an arrest on the part of an arresting officer is also sufficient to support a finding of probable cause by a magistrate in the issuance of a search warrant.” (p. 467.)
In resolving questions of probable cause, the so-called “prudent man” test is well-established in this jurisdiction as the proper standard. (State v. Wood, 190 Kan. 778, 378 P. 2d 536; State v. Blood, 190 Kan. 812, 378 P. 2d 548; State v. Brown, 198 Kan. 473, 426 P. 2d 129; State v. Kelly, 203 Kan. 360, 454 P. 2d 501; and State v. Lamb, supra.) In Brown we stated the basic rule in these words:
“. . . An arrest without a warrant, to support an incidental search, must be made with probable cause. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man’s believing that a crime has been committed at or before the time of arrest. . . .” (p. 477.)
In Lamb the subject of probable cause was discussed in depth in the light of our own decisions and those of the United States Supreme Court, particularly Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407; Henry v. United States, 361 U. S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168; and Carroll v. United States, 267 U. S. 132, 69 L. Ed. 543, 45 S. Ct. 280, 39 A. L. R. 790. The scope and thrust of the prudent man rule are delineated in Lamb wherein we held:
“Probable cause, which a magistrate must find to warrant the issuance of a search warrant, refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. It is not necessary that the evidence giving rise to . such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not. It is only necessary that the evidence lead the magistrate to believe that guilt is more than a possibility, and it is well established that the belief may be predicated in part upon hearsay information.” (Syl. ¶ 3.)
In the more recent case of Adams v. Williams, 407 U. S. 143, 32 L. Ed. 2d 612, 92 S. Ct. 1921, the court noted that probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. Further in the opinion the court quoted with approval a previous statement appearing in Brinegar v. United States, 338 U. S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, reh. den. 338 U. S. 839, 94 L. Ed. 513, 70 S. Ct. 31:
“ ‘In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. . . ” (p. 149.)
In the instant case the evidence discloses that Officer Parks, at the time defendant was ordered out of the Calvin pickup, possessed reliable information (1) that an attempted burglary had been committed; (2) that three suspects were pursued from the scene; (3) that the suspects abandoned their automobile on the Ferguson ranch; (4) that an unidentified individual had stopped at the Calvin residence, asked for gasoline for his automobile and left in company with Mr. Calvin and his son in the Calvin pickup; (5) that defendants pants were wet and muddy; and (6) that the terrain between the Ferguson ranch and the Calvin residence was such that a person must wade a creek and walk through mud.
Singly, none of these circumstances are of great significance, but considered together, we believe they are sufficient to justify Officer Parks, at the time he stopped the Calvin pickup, in believing that defendant had participated in the attempted burglary at Burden, The facts recited were known to Officer Parks when defendant exited the Calvin pickup. We are aware of the rule that facts, which may have appeared to an officer after an arrest, do not make lawful that which was unlawful prior thereto. Neither party pinpoints the exact time of the arrest. Parks testified that after he had completed the search of defendant’s person, defendant inquired what was going on and at that point Parks informed defendant he was under arrest for attempted burglary. Officer Parks testified that as he was frisking defendant Mr. Calvin volunteered information concerning defendant’s conduct which would have added to probable cause and may have been considered as contemporaneous with the normal processes incident to arrest and custody. (United States v. Edwards, 415 U. S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234.) However, the record does not indicate that the trial court considered the information volunteered by Mr. Calvin in finding probable cause, and neither do we.
The mere presence of a stranger in the vicinity, of course, is insufficient, as defendant argues, to supply probable cause, but the chain of circumstances shown by the evidence herein, all of which Officer Parks had knowledge, was sufficient information to lead a reasonable officer to believe that guilt was more than a possibility. (State v. Lamb, supra; Draper v. United States, 358 U. S. 307, 3 L. Ed. 2d 327, 79 S. Ct. 329.) The total information possessed by Officer Parks constituted a basis for much more than mere suspicion on his part.
The existence of probable cause for an arrest is, in the first instance, a substantial determination to be made by the trial court from the facts and circumstances of the case. The quantum of information which constitutes probable cause for an officer to make an arrest must be measured by the facts of each particular case. (Wong Sun v. United States, supra.) In determining whether probable cause for an arrest exists, all the information in the officer’s possession, fair inferences therefrom, and observations made by him, are pertinent; and facts may be taken into consideration that would not be admissible on the issue of guilt. (5 Am. Jur. 2d, Arrest, § 48, pp. 740-741.) In the instant case the trial court heard the testimony and considered the evidence on the motion to suppress and again at trial. We believe the record supports the trial corut’s rulings in both instances.
Defendant’s second point is predicated upon the giving of an aiding and abetting instruction (PIK [Criminal] 54.05) in response to a question submitted by the jury after it had retired for deliberation. The jury’s question was “does any degree of participation involve guilty in the crime as charged.” Defendant concedes that the mere fact the information failed to allege that defendant was being charged with aiding and abetting does not preclude a jury verdict finding him guilty as a principal even though the evidence may disclose only accessorial conduct. Defendant’s position in this regard is not clearly defined — it appears that he is actually arguing that because of insufficient evidence the instruction should not have been given.
Defendant relies upon State v. White, 211 Kan. 862, 508 P. 2d 842, wherein the aiding and abetting instruction given was one of the grounds for reversal. An examination of the White opinion reveals that the error was not in the giving of the instruction, but the omission of the key word “intentionally.” No such omission occurred in the case at hand. Defendant’s argument that the evidence was insufficient to justify an aiding and abetting instruction is answered by our decision in State v. Sharp, 202 Kan. 644, 451 P. 2d 137, cert. den. 393 U. S. 1100, 21 L. Ed. 2d 791, 89 S. Ct. 896. Sharp acted in concert with several other persons in perpetrating a robbery and burglary. The exact extent of Sharp’s participation was not shown, but there was evidence from which an inference of his participation could be drawn. We upheld Sharp’s conviction, noting that it has long been the law that one who aids and abets in the commission of an offense may be charged, tried and convicted as a principal. In the instant case there is evidence that defendant acted in concert with two other persons in the attempted burglary and the events which followed. Under familiar rules governing appellate review we find no error in the giving of the instruction in question.
In his third and final point, defendant contends the trial court erroneously instructed on the prosecution’s burden of proof. The instruction was PIK [Criminal] 52.02 which we have approved on numerous occasions. (See State v. Wilkins, 215 Kan. 145, 523 P. 2d 728; State v. White, 213 Kan. 276, 515 P. 2d 1081; State v. Taylor, 212 Kan. 780, 512 P. 2d 449; and State v. Larkin, 209 Kan. 660, 498 P. 2d 37.)
Defendant makes a further argument on this point that the trial court unduly restricted defense counsel in final summation by not permitting counsel to use the phrase “beyond a reasonable doubt” in his argument concerning the burden of establishing defendant’s guilt. The court, however, allowed counsel to tell the jury that the state had the burden of proving to its satisfaction that no reasonable doubt exists and that the jury could not convict if a reasonable doubt did exist in the minds of the jurors. The court’s language more nearly corresponds with that used in PIK [Criminal] 52.02, however, the court may have been overly technical in confining counsel’s argument so strictly within the words of the instruction. We discern no practical difference in the effect or meaning of the terminology in question. Telling the jury that it cannot convict if a reasonable doubt remains as to any of the claims made by the state conveys the same meaning as to burden of proof as requiring proof beyond a reasonable doubt.
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant landowners ask for a rehearing and a reversal of the decision previously rendered affirming this appeal upon the ground that where an appellant does not specify as error the overruling of his motion for a new trial, trial errors specified are not subject to appellate review, and under such circumstances, the appeal reaches this court as if no motion for a new trial had been filed (Green v. State Highway Commission, 184 Kan. 525, 337 P. 2d 657).
The landowners first contend the rule to which this court has consistently adhered, that where the overruling of a motion for a new trial is not specified as error, trial errors will not be reviewed, is inconsistent with modern principles of freedom from technical niceties in perfecting and presenting cases on ajppeal and defeats the purpose of courts in rendering substantial justice, and should be abandoned. In making the contention, the landowners concede the rule in question is well founded in the precedents of this court, but assert the time has come for serious reappraisal of its foundation and urgently request the court to discard it from procedure for appellate review.
In their brief in support of the petition for rehearing, the landowners have traced the history of the rule applied by this court in disposing of the present appeal. That rule was first adopted in Carson v. Funk, 27 Kan. 524, and was taken from the state of In diana (Woodall v. Greater, 51 Ind. 539; Lingerman v. Nave, 31 Ind. 222). In tracing the growth of the rule through the American Digest System, the landowners assert the only other states which have followed it are Illinois, Nebraska, Oklahoma, South Dakota and Texas, and that it has been subsequently discarded as a meaningless technicality which served no substantial purpose by Illinois, Nebraska, South Dakota and Texas, leaving only three rigid adherents to it, namely, Indiana, Kansas and Oklahoma.
Without prolonging the opinion on this point, suffice it to say this court adheres to and reaffirms the long established rule that to obtain appellate review of alleged trial errors in an appeal from an adverse judgment and an order overruling a motion for a new trial, it is necessary to specify as error, in compliance with rule No. 5. of this court, the overruling of the motion for a new trial, and in the absence of such an assignment of error, appellate review is limited to the question whether the judgment is supported by the pleadings and findings of fact, and inquiry will not be made of specifications pertaining only to alleged trial errors. It is unnecessary to cite our numerous decisions applying this rule, but a list of them may be found in 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 181, and 2 West’s Kansas Digest, Appeal and Error, §719 [10].
The landowners next contend their specification of error No. 2 presented a question of law which was not a ground for a motion for a new trial, hence, the rule in question applied by this court in the previous decision was improper. The specification reads:
“2. The jury allowed no damages for the access taken although it was undisputed that the main entrance used by appellants to the pasture to the south from US 40 was taken, and that all access to the zoned commercial comer of US 40 and K 13 was taken plus additional access 100' to the north and 50' to the south thereof.”
The landowners’ contention is based upon the theory that access rights were taken in the-eminent domain proceeding, which had a value as a matter of law and that a verdict which allowed nothing for the taking of such rights without payment of compensation cannot stand.
In the previous opinion it was held the specification in question pertained to the sufficiency of evidence to support the verdict and judgment, hence it was a trial error and not subject to appellate review since the overruling of the motion for a new trial was not specified as error. The question is a close one and not free from doubt, but we think the landowners’ contention that the specification presented a question of law and was subject to appellate review without the necessity of specifying as error the overruling of the motion for a new trial, cannot be sustainéd upon that basis for the reason that the jury made an allowance in its verdict for the value of the land taken and for damages to the land not taken. The latter allowance must have, of necessity, included damages for loss of rights of access to the land remaining. Evidence of damage was presented to the jury by both parties and the allowance of damage to the land remaining included damage for loss of rights of access (Simmons v. State Highway Commission, 178 Kan. 26, 283 P. 2d 392).
Under the circumstances here obtaining, the petition for rehearing is denied. | [
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The opinion of the court was delivered by
Kaul, J.:
This case arises out of a tax foreclosure action instituted by the plaintiif-appellee, Board of County Commissioners of Stevens County. The property in controversy is one-fourth of the mineral interests in a quarter section of land located in Stevens County.
The defendant-appellant, Anticlinal Royalty Company (hereafter referred to as Anticlinal), was the original owner and delin quent taxpayer. At the sheriff’s sale on July 23, 1973, the mineral interest was bid in for $3,500.00 by appellee-intervenor, Clyde Beymer, Jr. The sale was confirmed on August 3, 1973. On November 27, 1973, George Forbes, as receiver for Anticlinal, filed an application to open the judgment and also an answer to plaintiff’s petition in the foreclosure action. In his answer as receiver, Forbes alleged that he had been contacted by a stockholder of Anticlinal, that proceedings had been initiated in the district court of Tulsa, Oklahoma, wherein he was appointed receiver of the Anticlinal Corporation on November 16, 1973. It was alleged that Anticlinal was incorporated in the State of Oklahoma in 1930; that one Guy M. Martinet was president of the corporation and majority stockholder therein. The answer further alleged that the corporation became inactive in 1950, but that Martinet kept in contact with Republic Natural Gas Company of Dallas, Texas, the predecessor of Mobil Oil Company of Dallas, Texas, the present operator of the lease in question. Guy Martinet died a resident of Milwaukee, Wisconsin, in 1963, and after that date Richard L. Novotny, an attorney representing the estate of Mr. Martinet, was in contact with Mobil Oil. Anticlinal based its claim for relief on two theories — ■ (1) That it was never served with summons in said action other than by newspaper publication which was inadequate for the reason that plaintiff had failed to make a reasonable effort to ascertain the address of Anticlinal or its agent; and (2) that the description of the interest foreclosed in the foreclosure proceedings did not adequately describe the mineral interests of Anticlinal. The adverse rulings of the trial court on each of its two theories for relief are challenged by Anticlinal in this appeal.
Following the filing of Anticlinal’s application and answer, Mr. Beymer and Lynn C. Stewart and Katharine S. Shell, who had purchased a one-third interest each in the mineral interest from Beymer, filed motions to intervene which were sustained by the trial court on January 8, 1974. The matter was then set down for trial. The parties submitted considerable evidence which was essentially undisputed.
Mr. Forbes testified that Anticlinal apparently owned mineral interests in both Stevens and Morton counties; that it had been dormant since 1950; that Guy Martinet had been a stockholder in his lifetime, but did not own a controlling interest in the company; the corporation’s records had been destroyed; and that there were no records or other showing of any current directors or officers, nor a resident agent in either Oklahoma or Kansas. Mr. Forbes further testified: “I don’t know how you could get personal service on anyone in authority with this corporation, no.” The county treasurer and an abstractor testified concerning the county records bearing upon the matter. The county attorney of Stevens County, Mr. Jeff Johnson, testified concerning his efforts to obtain service upon Anticlinal.
Concerning the county attorney’s efforts to obtain service upon Anticlinal, the trial court found:
“The record shows that Mr. Jeff Johnson, the County Attorney of Stevens County, Kansas, conducted the tax foreclosure suit on behalf of the County and that with respect to the mineral interest in question, the County Attorney caused a Mrs. Lilly White, of the L. L. Morgan Abstract Company, to make a search with respect to the whereabouts of the Anticlinal Royalty Company, who was the record owner of such mineral interest. Mrs. White checked the original recorded mineral deed to Anticlinal Royalty Company and the rendition sheets in the County Treasurer’s Office and reported to the County Attorney an address for Anticlinal Royalty Company of 311 Masonic Building, Shawnee, Oklahoma, ‘c/o Guy Martinet’. Mrs. White also found an address in Milwaukee, Wisconsin for a Guy Martinet regarding the mineral interest in the County Treasurer’s Office, however, this address did not refer to Anticlinal Royalty Company (contrary to applicant’s proposed finding No. 8) and was not reported to Mr. Johnson, the County Attorney. Mr. Johnson proceeded to attempt to obtain personal service on Anticlinal Royalty Company, the owner of the mineral interest, and return was received showing no service in Oklahoma, the only address shown for defendant Anticlinal Royalty Company. The County Attorney thereupon attempted to determine if the corporation had a resident agent in the State, of Kansas and was notified by the Secretary of State of Kansas that the company had no resident agent. The lack of a Kansas resident agent for the corporation was also corroborated by the testimony of Mr. George Forbes, the recently appointed Receiver for the company. Thereafter the County Attorney proceeded to obtain publication service on Anticlinal Royalty Company.”
We turn to Anticlinal’s contention that the publication service employed by the county failed to provide notice of the foreclosure proceedings as required by law. K. S. A. 79-2801, et seq., and K. S. A. 1974 Supp. 79-2804, et seq., provide a full, complete and comprehensive procedure for the foreclosure of fax liens and the sale of real estate thereunder. (Pierce v. Board of County Commissioners, 200 Kan. 74, 434 P. 2d 858.) K. S. A. 79-2801 provides that summons shall issue and be personally served or publication made as provided in other cases under the code of civil procedure.
K. S. A. 1974 Supp. 60-307 of the code of civil procedure de lineates the cases in which service by mail or publication is permissible. The instant case falls within the provisions of subsection (a) (3) which reads:
“In actions which relate to or the subject of which is real or personal property in this state, where any defendant has or claims a lien or interest, vested or contingent, therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, or for partition or for foreclosure of a lien, and such defendant is a nonresident of the state or a foreign corporation or where plaintiff with due diligence is unable to make service of summons upon the defendant within the state.” (Emphasis supplied.)
The record shows the county attorney attempted personal service on Guy Martinet and Anticlinal at its address in Shawnee, Oklahoma. This was the only address of Anticlinal appearing upon the Stevens County records. The summons was returned “not known at this address.” The county attorney then, through the Kansas Secretary of States Office, sought to ascertain whether there was a resident agent for Anticlinal in Kansas. Unable to effect personal service or to locate Anticlinal, or a resident agent thereof, the county attorney proceeded with publication service permitted in this case by the provisions of 60-307 (a) (3). A proper affidavit for service by publication was executed and filed in compliance with the provisions of the statute. We believe the record supports the trial courts ruling that publication service on a foreign corporation in this case was in compliance with pertinent statutes and met the constitutional requirements of notice set forth in decisions of this court.
In the recent cases of Chapin v. Aylward, 204 Kan. 448, 464 P. 2d 177, and Pierce, supra., we dealt with actions brought by individuals to vacate a tax foreclosure sale and held that service by publication, under the facts in each case, was insufficient to meet the requirements of constitutional due process. In this connection we held in Pierce, supra:
“Where the names and addresses of adverse parties are known or easily ascertainable, notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of due process under the 14th Amendment to the federal Constitution or § 2 of the Bill of Rights of the Kansas Constitution.” (Syl. f 6.)
In Chapin we followed our holding announced in Pierce, but recognized this qualification:
“. . . We do not mean to imply — nor has the supreme court of the United States ever declared — that constructive service by publication will never satisfy constitutional requirements of due process. Indeed, there un doubtedly are many instances where the notice provided by publication service is the only method possible. . . .” (p. 455.)
We believe the rule of Pierce and Chapin is applicable herein to the extent that where the delinquent taxpayer is a foreign1 or domestic corporation and its address, or that of an officer, partner or a resident, managing or general agent (K. S. A. 1974 Supp. 60-304 [e]) is readily ascertainable notice of pending proceedings by publication service, alone, is not sufficient to satisfy the requirements of constitutional due process.
In the instant case, however, there was no address ascertainable for Anticlinal or a partner, officer, or agent thereof. The corporation had been dormant for more than twenty years. True, there was an address of Martinet in care of Novotny, but no claim is made that service upon Anticlinal could have been made by means of this address. There is no showing that either Novotny or Martinet had any official capacity or agency connection with Anticlinal. In fact, as the trial court pointed out, Mr. Forbes testified there was no way that service could be had upon the corporation1.
Anticlinal suggests that Mobil Oil, present operator of the lease, should have been notified. The record shows that Mobil Oil possessed no more knowledge concerning Anticlinal and its officers than did the county officials. Mr. Forbes testified that Mobil Oil had been impounding royalties because it did not know whom to pay them to.
The fact that Anticlinal became a dormant corporation and had no resident agent in either Kansas or Oklahoma is due to the fault of the owners of the corporation. The only address of Anticlinal known to plaintiff was the Shawnee, Oklahoma, address. No other address for Anticlinal, its officers or agents was ascertainable, thus, the trial court’s ruling in this regard must be affirmed.
We turn next to Anticlinal’s contention that the publication notice did not adequately describe its mineral interest. In this connection 79-2801 provides that when notice of a foreclosure sale is given by publication, that notice must contain a description of the real estate. The criteria for determining the sufficiency of a real estate description used in a tax foreclosure proceeding is set forth in K. S. A. 79-2316, which reads in pertinent part:
“. . . All of such descriptions which shall indicate the real estate intended with ordinary and reasonable certainty and which would be sufficient between grantor and grantee in an ordinary conveyance, shall be sufficient.”
Anticlinal’s property was described in the tax foreclosure proceeding as follows:
“An undivided 40 acre interest in and to all of the oil, gas, and other minerals in and under the SE/4 of Section 3 in Township 34 South of Range 39 West 6th P. M. in Stevens County, Kansas.”
Anticlinal’s interest as shown by the mineral deed is described as follows:
“. . . An undivided one-fourth interest in and to all oil, gas and other minerals in and under, and that may be produced from the following described lands situated in Stevens County, State of Kansas, to-wit:
“Southeast Quarter (SE M) of Section Three (3) in Township Thirty-Four (34) of Range Thirty-Nine (39), West of the 6th P. M., containing 160 acres, more or less. . . .”
Anticlinal argues the description used by the county varies to such an extent from the deed description that it fails to describe its interest. Anticlinal also contends the terminology used in the description inadequately apprised prospective bidders of the property’s real value and, thus, prevented it from bringing a fair price. These points are not well-taken. The wording used in the published description of Anticlinal’s interest, although not precisely that employed in the mineral deed, is sufficiently definite to permit identification and conveyance.
K.S.A. 79-2316 (then appearing as G. S. 1947 Supp. 79-2316) was referred to in Board of County Comm’rs of Cherokee County v. Smith, 169 Kan. 623, 220 P. 2d 131, a tax foreclosure action wherein it was said that the settled law of this state is that a tax deed must be such that with ordinary and reasonable certainty it can be determined what has been sold. (See, also, Marion County Comm’rs v. Clark, 157 Kan. 132, 138 P. 2d 449; and Kruse v. Fairchild, 73 Kan. 308, 85 Pac. 303.) There is no indication that the purchaser (Mr. Beymer) did not know what he was buying. In fact, we are informed in his brief that it is common knowledge within the oil arid gas business that parties who are engaged in buying and selling mineral interests and royalties oommonly refer to mineral acres and royalty acres.
The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from an order of the district court denying a motion by the plaintiff mother to modify the original divorce decree awarding custody of the parties’ minor children to the defendant father during the school year. Plaintiff contends there has been such a change in conditions that the welfare of the children requires a change of custody, and that the trial court abused its discretion in ruling plaintiff failed to sustain the burden of proof.
Delores Marie Lewis (plaintiff-appellant) and William Hudson Lewis (defendant-appellee) were married on August 13, 1961. Roth parties were well educated and at one time or another they had been employed as school teachers. Two children were bom of their marriage, William Rradley in 1965, and Jacquelyn Sue in 1968.
On December 29, 1971, plaintiff filed a petition for divorce on the ground of incompatibility, and in conjunction therewith sought an equitable division of property, support, alimony, attorney fees, and exclusive custody of the two minor children. Defendant answered by denying the various allegations of plaintiff and by filing a cross-petition for divorce on the grounds of adultery, ex treme cruelty, and gross neglect of duty. Defendant further alleged plaintiff was not a fit person to have custody of the children and requested he be awarded permanent custody of both children.
Prior to a hearing on the merits, defendant amended his cross-petition to include the ground of incompatibility. Plaintiff withdrew her petition and the trial court granted defendant a divorce on the ground of incompatibility. After having been fully advised in chambers as to the type of evidence both parties would present concerning their relative fitness as parents, as well as the fact plaintiff would be teaching school beginning in August, 1972, whereas, defendant would be giving up his teaching career to work on his farm near Atwood, Kansas, and having in mind at all times the welfare of the children, the court ordered custody of the children to be divided among the parents. The defendant husband was to have custody during the school year and the plaintiff wife was to have custody during the summer vacation, both periods of custody being subject to liberal visitation rights, by the other party. A short time later the original order was more precisely defined as to the weekend visitation rights as a result of a stipulation and agreement entered into by the parties and approved by the court.
Following the divorce, plaintiff began teaching school in Edson, Kansas, and defendant quit his teaching job to work on the family farm.
In February, 1974, almost two years later, plaintiff filed a motion to modify the original custody order, alleging changed circumstances in the following respects:
“(i) That the plaintiff is now married, residing on a farm home near Colby, Kansas and that the environment at said home is conducive to the health and welfare of said minor children.
“(*») That the plaintiff is no longer teaching school and her sole and only duties are that of a housewife and further, that she desires, as their natural mother, to have said minor children in her home in order to guide and direct them through their tender years.
“(in) That the present custody arrangement is not conducive to the health, mental well-being and welfare of said minor children for the reason that the defendant herein is fully occupied with his present occupation and said children need the security that can be provided by their natural mother.
“(iv) That the plaintiff has reconciled her former life style which plaintiff alleges was brought about by the gross incompatibility with the defendant herein.
“(v) That plaintiff has at all times material herein been ready and willing to assume full time the duties of a mother and desires that this Court, which has continuing jurisdiction over said minors, to return said children to her custody, with reasonable rights of visitation to their natural father, the defendant herein.
“(vii) Plaintiff states that there has been no finding by this Court that the plaintiff herein is unfit to have said custody.”
After the hearing on the motion the trial court found plaintiff failed to sustain the burden of proof. The court concluded that plaintiff failed to show the welfare of the children required a change of custody, that the children were progressing and maturing normally under the original custody arrangement, and that the welfare .and best interests of the children required the existing arrangement be maintained.
It is from the denial of this motion that plaintiff appeals, contending she should have been awarded custody of the children since she was the natural mother, and there was no finding at any time by the trial court that she was unfit to have custody. The issue here is whether the trial court abused its discretion by refusing to modify the custody order based on the alleged changed circumstances.
We are not concerned with the question of the propriety of the trial court’s action in granting the original custody order. A decree awarding custody of a child is res judicata with respect to the facts and circumstances existing at the time of the decree. (Bierce v. Hanson, 171 Kan. 422, 233 P. 2d 520.) This is an action brought to modify a custody order which had been in effect for nearly two years. The trial court is vested with continuing jurisdiction to modify a custody order when justified by a change in circumstances. (Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Travis v. Travis, 163 Kan. 54, 180 P. 2d 310.) Refore a custody order will be modified the movant has the burden' of showing the child can be better cared for if the requested change is granted. (Burns v. Burns, 177 Kan. 116, 276 P. 2d 308.) This question is subject to the sound judicial discretion of the trial court after consideration of all the facts and circumstances shown by the evidence, and on appellate review its decision will not be disturbed by this court unless there is a clear showing of an abuse of discretion. (Kimbell v. Kimbell, 190 Kan. 488, 376 P. 2d 881; Hardenburger v. Harden-burger, 216 Kan. 322, 532 P. 2d 1106.)
Here, we have an action brought by the natural mother seeking a change in custody, relieving the father of the right to the children during the school year. In a long line of cases we have held where the issue of custody of minor children lies between the parents, the paramount question for determination is what best serves the interests and welfare of the children, and all other issues are subordinate thereto. (Dalton v. Dalton, 214 Kan. 805, 522 P. 2d 378; Patton v. Patton, 215 Kan. 377, 524 P. 2d 709; Moran v. Moran, supra.)
Plaintiff stresses the fact she is the natural mother of the children and has never been declared unfit. On the other hand, defendant contends a proper interpretation of our prior decisions is that a trial court is vested with discretion to award custody of children to the father even though their mother may not be found unfit to have custody. This court has always recognized the value of maternal love and care where children are of tender age, and, absent a finding of unfitness, a mother is ordinarily entitled to the custody of a child of tender years. (Bierce v. Hanson, supra.) There is no fixed rule, however, requiring the custody of a minor child be awarded to its mother rather than to its father. (Moudy v. Moudy, 211 Kan. 213, 505 P. 2d 764.) As stated in Moudy, the real issue is which parent will do a better job of raising the children and provide a better home environment. Where all other things are equal, children of tender age will normally be placed with their mother. (Erikson v. Erikson, 211 Kan. 155, 505 P. 2d 688.)
In Bierce, the trial court denied a motion by the mother of a young child to change the custody from the father to the mother. The mother appealed, making much the same argument as plaintiff herein. In affirming the ruling of the trial court we reviewed the evidence offered to show changed circumstances and stated we would not reverse an order of this character merely because we might entertain some doubt concerning the wisdom of the order.
Similarly, in the case of Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746, the trial court awarded custody of two minor children to their father. It did not find the mother to be unfit to have custody of the children. The mother appealed, arguing that since she had not been found unfit, it was an abuse of discretion to award the children to the father. This court affirmed the trial court in the following language:
“Thus, in the situation presented by the instant appeal, it was unnecessary to find one parent unfit before the other parent could be awarded custody. The fact that the trial court gave custody to the father, without finding the mother to be unfit, is not an abuse of judicial discretion so long as such decision is in the furtherance of the best interests of the children.” (p. 533.)
A brief review of the relationship of the parties in the instant case might be helpful to better understand the situation confronting the trial court. Although the parties were married for nearly ten years, it appears from the record that the final years of the marriage were marked by disharmony and mutual incompatibility. Plaintiff admitted she was having an extramarital affair with her present husband, Alvin Depe, prior to her divorce and while she was still living with defendant. In her own words, she led a life that was “less than moral” and she “didn’t set a good example for anyone then.” In December, 1971, the parties separated, with plaintiff moving into an apartment of her own. After several months defendant moved the children to his home in Atwood, Kansas, which-has been their principal residence since that time. Less than a year after her divorce plaintiff married Depe and moved to his farm near Colby, Kansas, approximately thirty miles from defendant’s farm near Atwood.
In support of her motion plaintiff emphasized the fact she was no longer teaching and would be able to give her full attention to the welfare of the children. She argues that over the last few months the children have been placed with a baby sitter by defendant for increasing periods of time. She further complains the present custody arrangement subjects the children to an unnecessary amount of shuttling back and forth between the parties’ separate homes.
Despite these arguments, there was ample testimony to support the finding of the trial court that the children were progressing and maturing satisfactorily under the existing custody arrangement. In fact, plaintiff testified she was not criticizing defendant’s care of the children, as she knew he loved the children and she never doubted his ability to care for them. She further testified defendant had been principally responsible for raising the children for quite a long time and during the past two years defendant had seen to it that the children were well cared for, clean, and growing emotionally. Although the son, Brad, was emotionally scarred by the divorce, plaintiff felt both children had become much more secure during the two years following the divorce and had adjusted to the situation. She also admitted that during the summer of 1972, she had been unable to handle her son and as a result she took him back to Atwood and left him with defendant.
Defendant testified that he takes the children to church, cares for them, feeds them, and looks after them when they are living with him. He is a member of the Methodist church, belongs to the Rotary, and is involved in Boy Scouts with his son. Defendant testified that he supervises the childrens bath each evening and puts them to bed. In the morning he gets them up and fixes their breakfast. He has attended all the parent-teacher conferences and has never missed a school function in which his son participated. Although defendant admits he has not had much of a personal life since the divorce, he appears willing to sacrifice it in order to care for the children.
Considered as a whole, the record is conclusive that the children are being well cared for by defendant and that under the present custody arrangement the children have adjusted to a difficult situation and are progressing normally. It was within the discretion of the trial court to decide whether the best interests and the welfare of the children would be served by changing the original custody order. We cannot say, under the circumstances shown, that the court has abused its discretion, nor was its determination against the best interests of the children, even in view of the changes which have taken place since the original order.
As a further attack on the original custody order of the trial court, plaintiff contends the effect of such an order is to create a “divided custody” situation which is necessarily detrimental to the welfare of the two children and an abuse of discretion by the trial court.
We have heretofore considered this question under circumstances similar to the instant case. In Travis v. Travis, supra, the father was awarded a decree of divorce on the ground of gross neglect of duty, and custody of the four-year-old son was alternated between the parents, with the mother having custody during the school year and the father having custody during the summer vacations. We held the trial court had not abused its discretion in so ordering and reasoned as follows:
“. . . Of course, it may be said easily that shunting a child back and forth every few days or alternating its custody frequently is, as a matter of law, against the best interests of the child and an abuse of discretion. But that was not the order made. The periods of custody fixed are comparatively long. The trial court had the parties and the witnesses before it, it had the grave responsibility of determining the best interests of the child, and being aware of its power to change its order at any time, may well have concluded to make the order as it did and see what would develop. . . .” (p. 61.)
Although a court charged with the duty of awarding custody of a minor child clearly has the power to alternate or divide the periods of custody between the parents, it is generally agreed that divided custody should be avoided whenever reasonably possible. (See, generally, 92 A. L. R. 2d 696.) We recognize the frequent shifting from one home environment to another could easily be detrimental to the emotional and physical well-being of any child. We do not agree with plaintiff, however, that the court’s order amounts to a frequent shifting of custody. Under the express provisions of the custody order, the mother is to have custody of the children during their summer vacation from school with weekend visitation by the father, and the father is to have custody of the children during the school year with weekend visitation by the mother. In essence, the children are principally in one home for nine months of the year and the other for three months of the year. Under all the circumstances, we do not feel such changes in the environment of these children would be against their best interests. Such an arrangement permits the children to have a close relationship with both parents while providing them with the stability of having their principal home in Atwood with their father, and the opportunity to spend their vacations on the farm with their mother.
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant was tried and convicted on two counts relating to drug offenses committed on or about September 13, 1973. In the first count he was charged with possession with intent to sell and selling marijuana. The second count charged conspiracy to sell L. S. D. A third count alleged felonious assault. His conviction on this count is not involved in the present appeal.
Five points are set forth in the statement of points. Number three has been abandoned and we take no further note thereof. In point one which, incidentally, was not orally argued, the de fendant complains that the state was permitted to endorse the name of an additional witness on the information, that of Fred Cooper, who had fingerprinted the defendant and his companions. The record indicates the state filed its motion December 3, 1973. The motion was noticed up for hearing December 7, 1973, and was granted on that date. Trial was commenced December 9, 1973.
No objection to the endorsement appears in the record. Nonetheless we shall restate our well settled rule. The late endorsement of witnesses rests in the sound judicial discretion of the trial court and its ruling will not be overturned in the absence of a showing of abuse, the test being whether the substantial rights of the defendant have been prejudiced. (State v. Blocker, 211 Kan. 185, 189, 505 P. 2d 1099; State v. Foster, 202 Kan. 259, 447 P. 2d 405; State v. Johnson, 210 Kan. 288, 295, 502 P. 2d 802.)
No prejudice is brought to our attention in this case. The defendant knew of the state’s application at least six days before it was granted and knew of its allowance two days before trial was to commence. This forewarning should have afforded defense counsel ample time to interview Mr. Cooper prior to his being called as a witness. In the absence of any showing to the contrary, we reject the point.
The remaining points of error are directed toward the instructions. We need not spend a great amount of time with them, however, for no objections thereto were interposed at the trial. To the contrary, the record reveals that counsel for defendant spoke in these very words, in responding to inquiry made by the court: “Defendant Collins has no objections to the instructions submitted.”
Our cases lay down the rule that instructions to which no objections are made at the trial level become the law of the case and are not to be considered on appeal unless they are clearly erroneous. (See cases collected in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 344; 2 Hatcher’s Kansas Digest [Rev. Ed.] Criminal Law, § 420.)
We shall look at the challenged instructions in the light of our rule. In instructions six and seven the trial court informed the jury as to the “procuring agent” theory of defense. The availability of this defense in narcotics or drug cases was recognized by this court in State v. Osburn, 211 Kan. 248, 505 P. 2d 742, in which we said that where the accused acted as the procuring agent for the purchaser in obtaining narcotics, and not for the seller, he can be found guilty of possessing the drugs but not of selling them. This principle has been reaffirmed in State v. Fitzgibbon, 211 Kan. 553, 507 P. 2d 313. (See, also, State v. Wheeler, 215 Kan. 94, 100, 523 P. 2d 722.)
When construed together, as instructions must be, instructions six and seven do not appear clearly erroneous. We believe, in fact, they are quite adequate in presenting the procuring agent theory as it exists in our law.
In the other instruction which is questioned, the trial court instructed that count one, which charged the defendant with both possession with intent to sell, and the sale of marijuana, included the lesser included offense of simple possession. The point attempted to be made here is that possession of marijuana is not a lesser included offense of sale of marijuana, and hence, that the instruction is clearly enroneous.
It is true we have held that simple possession of marijuana is not a lesser included offense of the sale of that drug. (State v. Woods, 214 Kan. 739, 522 P. 2d 967; State v. Nix, 215 Kan. 880, 529 P. 2d 147.) Those cases, however, can be of small comfort to this defendant.
Count one charges the defendant with two separate and distinct crimes, sale of marijuana and possession of marijuana with intent to sell, both being felonies under the law (the matter of duplicity seems never to have been raised). While possession of marijuana, which is designated a misdemeanor in K. S. A. 65-4125 (a) (now K. S. A. 1974 Supp. 65-4127b (a), is not a lessor included offense of sale of marijuana, we have no doubt it is a lesser included offense of possession of marijuana with the intent to sell, which is named in K. S. A. 65-4125 (6) (now K. S. A. 1974 Supp. 65-4127b (&), as a class D felony. Such, indeed, is the thrust or import of our recent decision in State v. Culbertson, 214 Kan. 884, 522 P. 2d 391.
A crime may be said to be a lesser included offense where all of its elements are necessary elements of the greater crime which is charged. (State v. Giddings, 216 Kan. 14, 531 P. 2d 445; State v. Woods, supra.) Simple possession of marijuana is a classic example of a lesser included offense in relation to possession of marijuana with the intent to sell.
We find no error in the judgment of the court below and the same is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
This is an action for damages for malicious prosecution of a civil suit. Trial to a jury resulted in a judgment for plaintiff from which defendant has appealed.
Plaintiff Deanna Carnegie alleged in her petition that on July 29, 1970, defendant Gage Furniture, Inc., maliciously instituted a replevin action against her for recovery of a color television set at a time when she was not in default under an installment contract to purchase the set and because of the groundless suit she incurred legal expense and suffered a neurosis which resulted in partial physical paralysis and expenses for medical and psychiatric care. She sought $100,000 compensatory and $100,000 punitive damages.
Defendant Gage Furniture in its answer denied the replevin suit was groundless or maliciously instituted and alleged that any expenses and damages incurred by plaintiff did not result from its acts.
Upon issues thus joined a jury rendered a general verdict for plaintiff for $45,000 compensatory damages, upon which judgment was entered. Posttrial motions were overruled and this appeal ensued.
The testimony adduced at trial revealed the following: On November 12, 1969, plaintiff-appellee entered into an installment contract to rent and/or purchase a color television set from Martin Amusement Company for the sum of $287.00. Sales tax of $8.61 added to the purchase price made a total contract figure of $295.61. Monthly payments by appellee of $25.00 were to be applied 40% to rental of the TV and 60% to its purchase. Martin was to repair and service the set throughout the term of the contract. The contract was written in summary fashion on Martin’s printed duplicate sales order forms and was signed by appellee. Appellee testified that although the written contract did not reflect it, her monthly payments were to be due around the 18th of the month land that all payments after the first six were to be applied 100% toward the purchase of the set.
Appellee made $25.00 payments in November and December, 1969, and in January and February, 1970. She made no payment in March but contacted Martin Amusement and assured it she would make her April payment. Appellee made a further $25.00 payment to Martin in April, 1970. Some time in March or early April, 1970, Martin assigned its rental-purchase contract with appellee to appellant Gage Furniture. On April 16, 1970, appellant sent a card to appellee that her April rental payment was overdue. The notice also contained a statement that appellee would be subject to a 50‡ per day late charge. Upon receipt of this notice appellee telephoned appellant’s offices and advised she had sent her April payment to Martin. She expressed discomposure at the reference to the 50‡ late charge. Following this conversation appellant contacted Martin and learned it had received a payment, which payment was then forwarded and received by appellant on April 17,1970.
Subsequently appellee had a conversation with appellant’s vice-president, Carl L. Lewis, about entering into a new contract concerning the TV set — she wanted her obligation with appellant and her balance in writing as she was concerned that her arrangement remain the same. Appellee was told to furnish the contract. Appellee then contacted a law student, gave him her records and all the information concerning the transaction and he in turn typed the following instrument:
“CONTRACT OF SALE
“Vendor, Tom Dick and Harry’s hereby .agrees to sell, and Purchaser, Mrs. Deanna Carnegie, agrees to purchase one Heath Kit Color T. V. for the balance remaining on a contract between Martin Amusement and Deanna Carnegie, which contract has been assigned to Tom Dick and Harry’s, said balance is-hereto agreed to be $205.61. Payments are to be in the amount of $25 per month to be paid on or before the 18th of every month. The parties hereby agree that the remaining purchase price of $205.61 includes any computation of interest and that no additional interest whatsoever will be added to this sum.
“In the event of a default in making payments by Mrs. Carnegie, she will be allowed an additional 30 days to come forward with payment and until this additional period elapses, will not be deemed to be in breach of this contract.
“Vendor shall repair said T. V. in agreement with past rental contract as agreed previously, to the above contract, after which Mrs. Carnegie will be responsible for repairs.”
Appellee took the contract to appellant’s office where on May 5, 1970, it was signed by her and appellant’s vice-president. The instrument was not dated. On the same day appellee made a $25.00 payment to appellant which appellant credited as a rental-purchase payment under the old Martin contract (it is the application of this payment which really forms the crux of this lawsuit). Appellee testified she thought she was making this May 5th payment as the first one due under the new purchase contract. Appellant’s testimony was that this payment was to apply on the balance due on the old Martin contract, being the sixth and reducing the amount due on it to the sum of $205.61 ($295.61 less six purchase-price payments of $15.00 or $90.00). On May 5, 1970, appellant gave appellee a receipt for this $25.00 payment which read “Rental on TV” and appellee accepted it without demurral.
On June 2, 1970, appellee returned to appellant’s store to make another payment. A dispute arose between her and appellant’s vice-president because he had written the word “rental” on her proposed receipt. Appellee insisted she would not accept such a receipt because she was purchasing, not renting the TV. There was some dispute as to exactly what occurred but in any event angry words were exchanged and appellee picked up her money and left without making a payment. Appellee went that same day to the buyer protection division of the attorney general’s office with her grievance, which agency wrote two letters and made a telephone call to appellant concerning the affair.
Appellee made no further payments on the contract until July 9, 1970, at which time she paid $25.00. Thereafter appellee made a $25.00 payment each month until the balance owing was fully paid.
Meanwhile, on July 29, 1970, believing that appellee was two payments in arrears under her contract appellant, upon advice of its then legal counsel, Mr. John Bell, filed a replevin action in magistrate court. Appellee became very disturbed when deputy sheriffs attempted to execute the replevin order, she retained an attorney and posted a redelivery bond so she might retain possession of the TV set. As a result of her distress over the attempted repossession she suffered physical and mental disability, diagnosed as anxiety neurosis with conversion symptoms, and underwent extensive medical and psychiatric treatment.
Trial to the magistrate judge was held in the replevin action on December 15, 1970. This resulted in a judgment for appellee on the judge’s conclusion that the suit had been commenced prior to default by reason of the thirty day grace period. Appellant then filed a motion for new trial which, after hearing, was granted. The second trial in magistrate court was heard by a different judge on April 27, 1971. This judge also held for appellee on his conclusion appellee was not in default by reason of her June 2d tender of payment. At the time of the second trial appellee had paid appellant in full in continued monthly payments the amount asserted by it to be due and owing under the May 5th contract. After the conclusion of the first trial appellant was threatened with a malicious prosecution suit on appellee’s behalf and it tried the replevin case a second time in an effort to establish that it had probable cause to commence the action. One magistrate court judge did testify that in his opinion appellant had probable cause to institute the replevin suit.
On appeal appellant’s principal point is that it had probable cause as a matter of law to bring the replevin action and the trial court erred in submitting the case to the jury. The point was preserved at trial level by motions for directed verdict and for judgment notwithstanding the verdict.
At the outset it may be noted that in order to maintain an action for malicious prosecution the plaintiff must prove that the defendant instituted the proceeding of which complaint is made, that defendant in doing so acted without probable cause and with malice, that the proceeding terminated in favor of plaintiff, and that plaintiff sustained damage; plaintiff must prove both malice and lack of probable cause and unless each is proved, plaintiff’s claim must fail; further, the inquiry as to the want or existence of probable cause is limited to the facts and circumstances which were apparent at the time the prosecution was commenced; and where facts are in dispute the issue of probable cause is for the jury to determine but where there is no factual dispute it is a question of law for the court (see Stohr v. Donahue, 215 Kan. 528, 527 P. 2d 983, and cases therein cited).
In 52 Am. Jur. 2d, Malicious Prosecution, § 51, these definitions of “probable cause” appear:
“. . . With reference to civil actions, probable cause has been said to be such reason supported by facts and circumstances as will warrant a cautious man in the belief that his action and the means taken in prosecuting it are legally just and proper; or a knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. A definition sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish, for the complete legal idea expressed by the term ‘probable cause’ is not to be gathered from a mere definition. However, notwithstanding the different wordings of the many judicial definitions referred to, there seems to be sufficient substantial agreement among them to warrant the statement that the standard of conduct for beginning or continuing any proceeding, whether civil or criminal, is that of a reasonable or ordinarily prudent man placed in the same situation as the defendant. That is, if a reasonable man would have believed and acted under the circumstances as the defendant did, there would be probable cause; otherwise not.
“Probable cause does not mean sufficient cause. One need not be certain of the outcome of a criminal or civil proceeding to have probable cause for instituting such action. The test is rather whether there was reasonable cause.” (pp. 217-218.)
It is generally held that where one in good faith seeks the advice of legal counsel and under such advice institutes an action against another, he does not thereby render himself liable to an action for malicious prosecution (54 CJS, Malicious Prosecution, §52, p. 1018). However, when a defendant seeks to rely on the advice of counsel to establish probable cause for instituting an action it must appear that he fully disclosed to counsel the facts surrounding the charge as well as those which can be learned by reasonable effort (Railroad Co. v. Brown, 57 Kan. 785, 48 Pac. 31).
Appellant’s argument that probable cause existed as a matter of law may be summed up in this fashion: The contract signed on May 5, 1970, was ambiguous in that it was undated and did not refer to the payment made on that date or say how it would be applied and that by any reasonable interpretation and from appellee’s own admissions and conduct it had to be applied as the sixth payment under the old Martin rental-purchase contract and any reasonable person in appellant’s position would so understand and act accordingly; that appellant received no payment for the months of May or June (any tender in June did not amount to payment for that month and did not bar bringing an action on the debt) and appellant was justified in believing appellee was in default; and further appellant sought and relied upon advice of counsel and filed the replevin suit as recommended by counsel.
On this issue appellee counters that the jury determined that appellant started the replevin suit without probable cause and there was sufficient evidence to support its finding because in three respects appellant did not lay all the facts before its counsel and cannot rely on his advice to establish probable cause for bringing the suit in that: (1) Appellant did not fully inform counsel as to what transpired on June 2, 1970, when the dispute over wording of the receipt occurred and did not inform him of appellee’s tender of a payment; (2) appellant advised Mr. Bell the new contract was made on April 17, 1970, rather than on May 5, 1970, thus misrepresenting that appellee had made only one payment on a contract which commenced on April 17, 1970; and (3) in July prior to the time the replevin suit was filed on July 29, 1970, appellant failed to disclose to Mr. Bell that appellee had made a $25.00 payment on July 9, 1970. In connection with this third item the record on appeal does establish that, in its written information furnished to Mr. Bell concerning appellee’s account, appellant failed to disclose to him that she had made a $25.00 payment on July 9th. We are unable to see how any confusion respecting the date of the new contract has any bearing on the issue of probable cause as argued by appellee.
Respecting the matter of tender, a substantial dispute in the replevin action developed over the June 2, 1970, confrontation between appellee and appellant’s vice-president. Although the magistrate court eventually ruled that appellee made a bona fide tender of payment on that date, at the time the suit was initiated no such determination had been reached. Evidence received at the trial of the instant action supported differing versions of the June 2d meeting. Appellee testified she placed $25.00 on appellant’s counter and was treated offensively in her good faith attempt at payment; appellant’s testimony was that appellee declined to leave the payment despite efforts to please her by writing the receipt any way she wanted it. There was -undisputed testimony that attorney Bell was informed by appellant of the incident.
The parties’ theories under the evidence thus are as follows: Appellee asserts that under her new contract with appellant she made a payment for the month of May (the May 5th payment), she admits she did not make a June payment because she was rebuffed but points out the undisputed fact she made a payment on July 9th, so that at the time the replevin suit was filed (July 29, 1970) she could not from any reasonable viewpoint be more than one payment in default but the replevin suit was filed within the thirty day grace period allowed by the contract for default of one payment. Appellant says that under the records of appellee’s account including both contracts, and her actions, it was reasonably justified in concluding she was delinquent at least one payment for more than the thirty day grace period at the time the replevin suit was instituted, and that such was in fact the case. Appellant’s theory is premised on the fact the May 5th payment was actually to apply on the old Martin contract, as evidenced by the records and testimony in the case, SO' that on July 29th when suit was filed there had been only one $25.00 payment made to take care of three payments which had become due under the new contract: On May 18th, June 18th and July 18th. Thus it appears the point of difference is the application to be made of the May 5th payment.
Appellee testified she turned over all her receipts and information to the law student selected by her and he arrived at the figure of $205.61 which he typed in as the balance to be paid under the purchase contract prior to the time she took it to appellant’s office. Appellee was unable to state how that particular figure was arrived at. She was confronted on cross-examination with the fact that 60% of the six $25.00 payments she was to make on the con tract prior to her being credited with the full 100% of payments toward purchase, amounted to $90.00 and further that $90.00 deducted from the total price of $295.61 of her Martin contract left the sum of $205.61, the exact amount of her new purchase contract. Her only response was that the law student had determined the amount from the information she had given him and she did not remember how it was done. The law student did not testify. Among the records produced by appellee at the trial were the notice form and the envelope she had received from appellant in April concerning the then missing April payment. On the back of these exhibits, which presumably were among those turned over by appellee to her student lawyer, there were figures indicating that the sum of $75.00, the amount paid by appellee prior to May 5, 1970, on the purchase of the TV set, had been subtracted from $295.61, the Martin contract price, apparently in an effort to determine the balance of the purchase price then due, leaving the remainder as the sum of $220.61. Appellee was unable to testify who had done this figuring or why, although these were records that had remained in her possession.
The fact remains, of course, that if the new contract was simply a continuation of the previous arrangement with Martin as testified to by appellee, there had to be a sixth $25.00 payment made to bring the remainder down to the $205.61 figure ($295.61 minus 60% of $150.00 equals $205.61). Consequently the May 5th payment had to be the sixth or April payment on the Martin contract, in accord with appellant’s version of events. Appellee does not suggest any other way by which the contract price of $205.61 could be reached and manifestly there is none. Appellee testified she selected the 18th of each month as the time each payment was to be made. On May 5th she accepted without protest a receipt marked “Rental on TV” at a time when a payment on the new contract was not yet due. This court has frequently recognized that admissions made by a party are the strongest kind of evidence. The proposition of law to be applied under these circumstances has been stated as follows: A verdict cannot be upset if there is any evidence in the record to support it, where such issue is presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross-examination of the party (Hallett v. Stone, 216 Kan. 568, 534 P. 2d 232). Admissions derived from a party’s own conduct may likewise be so considered.
The only conclusion to be drawn from appellee’s admission that she wanted a continuation of the Martin contract, her testimony that the purchase price of the new contract was to be the sum of $205.61 as derived from the records and information given by her to the law student, and her conduct in accepting the May 5th receipt marked “Rental on TV,” is that the May 5th payment was to be applied on the Martin rental-purchase contract and not to the new one. There was then no dispute on the matter to submit to the jury. This being so; it follows that, as a matter of law, there were sufficient grounds under all the circumstances for appellant, acting as a reasonably cautious person, to believe appellee was in default under her purchase contract at the time the replevin suit was instituted — three payments had become due, only one had been paid. The issue of want of probable cause should not have been submitted to the jury and the trial court erred in denying appellant’s motions for directed verdict and for judgment notwithstanding the verdict.
Appellee argues there was a want of probable cause shown by reason of evidence adduced by her that appellant’s counsel had said she had given them a hard time and they were “after” her. This may well have been evidence of malice but malice is not the same thing as the failure to act as a reasonable person would in the circumstances, that is, malice is not in itself the same thing as want of probable cause, although a want of probable cause may be evidence of malice (52 Am. Jur. 2d, Malicious Prosecution, § 47, p. 215). As already indicated, a plaintiff must prove both malice and lack of probable cause and unless each is proved the plaintiff’s claim must fall (Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P. 2d 269). Here appellee’s claim must fall because she did not prove lack of probable cause.
One further matter remains for consideration — taxation of the costs for reproducing the record on appeal. Much of this record consists simply of the reporter’s transcript of the proceedings. Some unnecessary exhibits were included. The situation developed when appellant narrated the testimony of seven witnesses, appellee counter designated a narrative'of eleven which included duplication of five of those submitted by appellant; neither party was satisfied with the designation of the other and yet neither was willing to emend the narrative of the other, or to submit his own to such emendation, by substituting verbatim testimony considered essential. The parties came to an impasse which the trial court was not able wholly to resolve, with the result a record on appeal of 496 pages costing $1,491.73 was filed. Our rules for preparing a record on appeal contemplate cooperation between counsel in its preparation which was totally lacking here (Rule 6 [c] and [e], 214 Kan. xxiii-xxiv; see also Blaes, “Another Look at Civil Appellate Procedure”, Kansas Judicial Council Bulletin, Dec. 1965, p. 68, 70-75). Our conclusion is that the parties have been equally at fault. Each has presented a narrative of testimony somewhat slanted and incomplete; each declined to emend by substitution and an appropriate narrative; and appellee designated some matter which was irrelevant to the points on appeal. Accordingly, the costs of reproducing the record on appeal will be assessed one-half to each party.
The judgment is reversed.
approved by the court.
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The opinion of the court was delivered by
Owsley, J.:
Defendants have filed a motion for rehearing challenging the finding of subject matter jurisdiction and the finding of in personam jurisdiction over Signal Properties. We find nothing in the motion that we did not consider in the original appeal, and the motion is therefore denied. We are publishing this opinion in order to correct an error in referring to the basis of in personam jurisdiction. We stated in the original opinion that plaintiffs relied on K.S.A. 60-308 (b) (1) (now K.S.A. 1974 Supp. 60-308 [b] [1]) to obtain jurisdiction over Signal Properties. The reference to 60-308 (b) (1) was incorrect; in fact, the plaintiffs obtained service of process on Signal Properties in the manner authorized by K. S. A. 1970 Supp. 60-304 (f) (now K. S. A. 1974 Supp. 60-304 [/]). In our original opinion we approved the jurisdiction thus acquired. We wish to emphasize that this court’s approval of the extension of jurisdiction over Signal Properties was based on the application of the “alter ego” doctrine and the exercise of in personam jurisdiction over Signal Companies.
We adhere to the original opinion except as herein modified to show the correction in the statute upon which plaintiffs relied to obtain in personam jurisdiction over Signal Properties.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
On motion of the appellee, Santa Fe, a rehearing was granted and counsel were given the opportunity to submit additional briefs and to present additional oral arguments. The same basic issues were presented which were covered in the original hearing. Counsel for the appellee has, however, directed the court’s attention to a recent case, Emporium Capwell Co. v. Community Org., 420 U. S. 50, 43 L. Ed. 2d 12, 95 S. Ct. 977, as support for its position that labor disputes involving an interstate railroad fall within the exclusive jurisdiction of the Railway Labor Act (45 U. S. C. A. § 151, et seq.) and therefore lie outside the jurisdiction of the Kansas Commission on Civil Rights.
We have considered Emporium Capwell Co. and have concluded that it does not support appellee’s position but in fact recognizes the rights of minority employees to seek the protection of remedies afforded by civil rights acts in addition to remedies provided by a labor relations act. Emporium Capwell Co. involved complaints by employees of racial discrimination directed against their employer. Their union invoked the contract grievance procedure recognized by the National Labor Relations Act and demanded a joint union-management “Adjustment Board” to consider the grievance. While arbitration was underway several employees, who felt the union- management effort was inadequate, picketed the employer against the advice of the union. After a warning by the employer to desist or be fired, the picketing continued. The employees involved were fired and they immediately filed a complaint with the National Labor Relations Board which complaint covered the same grievances which were being asserted by the union. The Supreme Court held that the employees could not bypass the contractual bargaining procedure simply because they were dissatisfied with the unions efforts. The rationale of the decision was that the efforts of the union should not be undermined by permitting dissident employees to invoke a parallel contract grievance procedure. It is important to note that in the course of the opinion the Supreme Court stated that the employees could still pursue their remedies either by means of conciliation through the offices of the Equal Employment Opportunity Commission or by means of federal court enforcement at the instance of either that agency or the party claiming to be aggrieved. The case now before us is distinguishable on its facts from Emporium Capwell Co. Here there was no active arbitration being pursued by the union, nor have employees who might be involved here acted in violation of the rights of their employer by illegal picketing. We find nothing in Emporium Capwell Co. which precludes the Kansas Commission on Civil Rights from carrying out an investigation of claimed discrimination in this case.
The court has considered the briefs and the rearguments of counsel and has concluded the original opinion should be adhered to.
Schroeder and Fontron, JJ., adhere to the original dissenting opinion.
Fromme, J., not participating on rehearing. | [
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The opinion of the court was delivered by
Schroedeh, J.:
The question here presented, for the first time in Kansas, is whether unqualified Social Security disability payments made for the benefit of minor children because of their fathers total disability constitute a satisfaction of child support payments required by a divorce decree.
The uncontroverted facts surrounding this controversy are not complicated and are summarized.
Harold Eugene Andler (defendant-appellant) and Shirley May Andler (plaintiff-appellee) were married on August 12, 1956. Three sons were bom to this marriage before tragedy struck Harold. On June 22, 1969, an automobile accident resulted in a spinal cord injury which totally disabled Harold, paralyzing him from the chest down.
Thereafter on October 9, 1969, Shirley filed an action for divorce. Harold executed a voluntary entry of appearance and on December 11, 1969, the parties were granted a divorce. The divorce decree granted custody of the three minor children to Shirley. The decree further ordered Harold to pay to Shirley, through the clerk of the district court of Shawnee County, $160 per month for the children’s support and maintenance, beginning on January 1, 1970.
Because of his disability Harold is currently unemployed. With the exception of one short period of time he has not been able to draw any salary since the accident. His only source of income has been a $249 per month Social Security disability benefit which he began receiving in January 1970, after his divorce was final. Harold has remarried. He and his present wife have purchased an 80 acre farm which is their homestead. The purchase price was $48,000 with a down payment of $12,000. Of this down payment $3,000 came from Harold and his present wife’s savings and the remaining $9,000 came from an informal loan from Harold’s mother, to be repaid as he is capable. The farm requires monthly payments of $330 which are made from Harold’s $249 per month disability payment, and from his present wife’s salary of $140 per week. They also receive $400 per year from pasture rental, and $80 per month rent from a garlow, when rented.
The Social Security Administration provides benefits for minor children whose parent(s) is (are) disabled. The minor children are considered beneficiaries of the benefits earned and paid for by their parents under the Social Security Act. The money given under this program is an unqualified grant of money to be used as the minor’s guardian determines. (42 U. S. C. A. 402 [d] [1].) In January 1970, one month after the divorce, Shirley commenced receiving for the benefit of the three minor children $221.10 per month disability benefits from the Social Security Administration pursuant to this legislation. These payments were not received, and apparently were not even contemplated, at the time of the divorce. However the $221.10 per month disability benefits which Shirley has consistently received since January 1970 exceeds the $160 per month child support which Harold was ordered to pay in the divorce decree.
Harold, who had consented to the $160 per month child support payments, made four payments in that amount for the months of January, February, March and April of 1970. Thereafter his savings were exhausted and he terminated these payments because he had no money with which to make them. However, as indicated, the $221.10 disability benefits to Shirley for the benefit of the minor children have continued since January 1970.
On August 13, 1973, after accepting $221.10 per month Social Security disability benefits for over three years, Shirley filed a motion in district court for a citation in contempt against Harold for failure to pay child support as decreed and to determine the child support in arrearage.
After hearing the matter the trial court found that no payments were made by Harold since April 1970, as required by the divorce decree and that each of the unpaid installments when due became a judgment against Harold. It did rule that Harold not be found in contempt of court for failure to make the child support payments as ordered on December 11, 1969, and it further ordered that child support payments henceforth be terminated “for the reason that the plaintiff is receiving Social Security disability payments for the benefit of the minor children of the parties in an amount in excess of that ordered by this court.”
In a memorandum announcing its decision the trial court said:
“The Court is most reluctant to hold that defendant in the instant case is still obligated for the past due and unpaid child support installments. Such a ruling appears to be harsh and bordering on the unconscionable. However, I have reluctantly* concluded that this Court possesses no power to change or modify the original order for past due installments for the support of the minor children of the parties.”
In support of the trial court’s decision, the appellee contends the mere fact that the children received Social Security payments does not constitute a satisfaction of the child support judgments which were not personally paid by the appellant. The appellee further contends that the children were entitled to the Social Security pay ments by an act of Congress and that their entitlement existed without regard to any support judgment entered by the district court.
The appellant contends the Social Security payments should constitute a satisfaction of the child support judgments, and that it would be inequitable for the court to determine, as a matter of law, that a judgment presently exists for all amounts of child support which were due under the decree and not personally paid by the appellant.
The trial court advanced four reasons for its decision in favor of Shirley, the appellee herein. One reason was that the payments were not made through the clerk of the district court as directed. Generally speaking, a divorced father is required to make child support payments as directed by the district court in the divorce decree, and he should not be permitted to vary the terms of the decree or the manner of payment to suit his convenience, or otherwise disregard the court’s order. (Ediger v. Ediger, 206 Kan. 447, 451, 479 P. 2d 823.) Special considerations of an equitable nature, however, may justify a court in crediting child support payments made directly to the wife, to the children or to others on the children’s behalf on due and unpaid child support, although made at variance with the technical requirement that they be made through the clerk of the district court, when that can be done without injustice to the divorced mother. (Ediger v. Ediger, supra; Dorsey v. Dorsey, 28 Colo. App. 63, 470 P. 2d 581 [1970]; Martin v. Martin, 59 Wash. 2d 468, 368 P. 2d 170 [1962]; and Gould v. Awapara, 365 S.W. 2d 671 [Tex. Civ. App. 1963], See also, 27B C. J. S., Divorce, § 321 [1], p. 636; and Annot., 47 A. L. R. 3d 1031 [1973].) But payments made in excess of amounts required to be made for child support are considered gratuitous. (Ediger v. Ediger, supra.)
In Ediger payments were to be made through the clerk of the district court. In weighing the equities the court held that failure to strictly observe the requirement of payment through the clerk of the district court did not prevent the divorced father from receiving credit. The payments made to the daughter in college were held to constitute substantial compliance with the support order.
The trial court’s conclusion that a judgment for the appellee “appears to be harsh and bordering on the unconscionable” leaves no doubt that the equities here lie in favor of the appellant. The appellee received $221.10 per month for a period of 41 months from May 1970, to September 1973, totaling $9,065.10, against and in satisfaction of child support payments of $160 per month for the same period, totaling $6,560, plus accrued interest. (But see, Cohen v. Cohen, 246 So. 2d 581 [Fla. Ct. App. 1971], appeal dismissed 255 So. 2d 524 [Fla. 1971].)
A second reason advanced by the trial court for its decision was that the Social Security disability benefits were not contemplated at the time of the divorce, and consequently the parties did not at that time intend that the disability payments would constitute satisfaction of the child support payments. Whether the disability benefit payments constituted satisfaction of appellant’s child support obligation is a question of law to be resolved by the courts, and is not dependent upon the intention of the parties. (State, ex rel., v. Doolin & Shaw, 209 Kan. 244, 497 P. 2d 138.)
A third reason advanced by the district court for its decision was that the Social Security Administration would have paid the $221.10 per month disability benefits to appellee for the benefit of the minor children without regard to any divorce decree provision ordering the appellant to make child support payments. It is axiomatic that even a divorced father has a continuing obligation to support his minor children. (In re Estate of Sweeney, 210 Kan. 216, 500 P. 2d 56.) Thompson v. Thompson, 205 Kan. 630, 470 P. 2d 787, recognizes that gratuitous contributions from relatives, friends, charities, governmental agencies or a stepfather will not reduce or diminish the father’s obligation to furnish child support. It is apparent the trial court considered the Social Security benefits as gratuitous payments not satisfying the appellant’s child support obligations.
Social Security benefits paid to the appellee for the benefit of the parties’ minor children as the result of the appellant’s disability may not, however, be regarded as gratuitous. On the contrary, the payments received by the appellee are for the children as beneficiaries of an insurance policy. The premiums for such policy were paid by the appellant for the children’s benefit. The purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a father insures against his possible future disability and loss of gainful employment by providing for the fulfillment of his moral and legal obligations to his children. This tragedy having occurred, the insurer has paid out benefits to the beneficiaries under its contract of insurance with the appellant, and the purpose has been accomplished.
The United States Congress has seen fit to place the federal government in the role of insurer in order to afford members of the work force the protection and security of insurance against future disability. The fundamental nature of the Social Security system is a form of insurance in every sense of that word. Benefits paid out by a governmental insurer, under a policy of insurance for which the insured has paid premiums, are no more gratuitous than benefits paid out by a private insurance company. The United States Supreme Court had occasion to examine the nature of the Social Security system in Flemming v. Nestor, 363 U. S. 603, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960). After noting that the Social Security system is “social insurance,” the court continued:
“. . . [Piersons gainfully employed, and those who employ them are taxed to permit the payment of benefits to the retired and disabled, .and their dependents. Plainly the expectation is that many members of the present productive work force will in turn become beneficiaries rather than supporters of the program. . . .
“. . . The ‘right’ to Social Security benefits is in one sense ‘earned,’ for the entire scheme rests on the legislative judgment that those who in their productive years were functioning members of the economy may justly call upon that economy, in their later years, for protection. . . .” (pp. 609, 610.)
The federal district court in Roston v. Folsom, 158 F. Supp. 112, 121 (E. D. N. Y. 1957) recognized that Social Security is in the nature of insurance and that the terms “insured,” “insurance” and ‘beneficiary” are used throughout the act. In fact, 42 U. S. C. A. §402 (d) is entitled “Child’s insurance benefits,” and uses that term throughout.
The insurance concept here in issue was considered by the federal district court in Schmiedigen v. Celebrezze, 245 F. Supp. 825 (D. D. C. 1965) where the court said:
“. . . [T]he payments prescribed by them [the Social Security Act] are not gratuities or matters of grace; they are not public assistance; they are not welfare payments. On the contrary, the law created a contributory insurance system, under which what in effect constitute premiums are shared by employees and employers. Consequently, in spirit at least, if not strictly and technically, the employee, who throughout his working life has contributed part of the premiums in the form of deductions from his wages or salary, should be deemed to have a vested right to the payments prescribed by the statutory scheme, which in effect comprises the terms of his insurance policy. He has earned the benefits; he is not receiving a gift. . . .” (p. 827.)
Recause of the unconditional nature of Social Security disability and old age benefits, other courts have held they constitute a satisfaction of a child support order when paid to the divorced mother for the benefit of the minor children. (Horton v. Horton, 219 Ga. 177, 132 S. E. 2d 200 [1963]; and Cash v. Cash, 234 Ark. 603, 353 S. W. 2d 348 [1962]; but see Fowler v. Fowler, 156 Conn. 569, 244 A. 2d 375 [1968].)
We hold where a father who has been ordered to make child support payments becomes totally and permanently disabled, and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under the divorce decree. The father is entitled to credit, however, only up to the extent of his obligation for monthly payments of child support, but not exceeding it. Here the excess of $61.10 paid each month must be regarded under the divorce decree as a gratuity to the children. While the $61.10 is not a gratuity in the sense that it represents the childrens vested right under the insurance concept of the Social Security system, it nevertheless is a gratuity under the divorce decree to the extent it exceeds the amount ordered in the divorce decree.
Military benefits to dependents of divorced servicemen provide a persuasive analogy. It has repeatedly been held monthly benefits received by the divorced wife pursuant to an allotment for the benefit of dependents authorized by her former husband who is in the military service discharges his accruing liability under a divorce decree. Hinton v. Hinton, 211 Ark. 159, 199 S. W. 2d 591 (1947); Kipping v. Kipping, 186 Tenn. 247, 209 S. W. 2d 27 (1948); Brooks v. Brooks, 204 Ga. 412, 49 S. E. 2d 881 (1948); Loomis v. Loomis, 221 Ark. 743, 255 S. W. 2d 672 (1953); Palow v. Kitchin, 149 Me. 113, 99 A. 2d 305 (1953); and Hopwood v. Hopwood, 169 Neb. 760, 100 N. W. 2d 833 (1960). The government’s military benefits are not considered a gratuity to the dependent children, but are part of an inducement for enlistment paid for by continued military service, Kipping v. Kipping, supra.
The foregoing was recognized by this court in Koons v. Koons, 190 Kan. 65, 372 P. 2d 62. There allotment benefits were not made under the divorce decree, but were made under federal statutes and army regulations, and the defendant, a divorced father serving in the military, was properly given credit for those allotments. If credit may properly be given for army allotments, the trial court’s refusal, as a matter of law, to give credit for Social Security benefits herein cannot be reconciled.
A fourth reason advanced by the trial court for its decision was that the appellant did not assert the payment of $221.10 per month disability benefit to the appellee as a basis for terminating his $160 per month child support payments, and that the appellant made four child support payments through the clerk of the district court after the disability benefits commenced. It is apparent the appellant was unaware of his legal remedy, if any, when he made the first four child support payments. His failure to immediately assert such remedy does not waive his right to seek relief in a case such as this. The appellant asserted a good faith effort, and clean hands under equitable principles, until he had exhausted his financial resources. Under the circumstances here presented the four payments of child support in the amount of $160 each must be regarded as gratuities for the children. (Ediger v. Ediger, supra.)
In Loomis v. Loomis, supra, one of the military allotment cases, the divorced father made nine monthly child support payments without realizing the government allotment was satisfying his child support obligations. Yet those nine child support payments did not prevent the government’s allotments from constituting a satisfaction of child support payments.
Here the four child support payments made by the father do not prevent the Social Security disability benefits paid to the mother from constituting a satisfaction of child support obligations.
Since the payments made by the Social Security Administration by reason of the appellant’s disability for the benefit of the minor children were in excess of the amount specified in the divorce decree for child support, they constitute satisfaction of child support obligations under the divorce decree. Accordingly, there were no past due installments for child support payable when the trial court heard the appellee’s motion.
The judgment of the lower court insofar as it finds the appellant not guilty of contempt is affirmed, but in all other respects the judgment is reversed.
Fromme, J., not participating- | [
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Prager, J.
Affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This lawsuit started out as an action by the plaintiff, Kansas City Structural Steel Company, to collect the balance due on account from the defendant, L. G. Barcus & Sons, Inc. It ended up being tried on a counterclaim filed by defendant against the steel company for breach of contract. The trial court entered judgment against the steel company on the Barcus counterclaim in the amount of $173,285. The steel company has appealed from that judgment.
Kansas City Structural Steel Company is a corporation engaged in manufacturing, supplying and erecting heavy structural steel. L. G. Barcus & Sons, Inc. is a general contractor engaged in the design and construction of roads, bridges and appurtenances thereto. The home offices of both companies are located in Kansas City, Kansas. For convenience the companies will hereafter be referred to as K. C. Steel, steel company, or plaintiff on the one hand, and Barcus or defendant on the other. The defendant, Travelers Indemnity Company, which is not involved in this appeal, was the bonding company for Barcus.
In September, 1968, the State of Kansas awarded Barcus a contract to widen the existing bridge on Seventh Street in Kansas City, Kansas, and to build two new ramps at the southern end of the bridge. This was known locally as the 7th Street project. The contract called for completion of the job within 250 working days and provided for payment of $280 per day liquidated damages in the event the project was not completed within that time.
Prior to being awarded the contract, Barcus had discussed structural steel prices with the plaintiff and had received verbal quotations. On September 24, 1968, K. C. Steel submitted a written proposal to Barcus confirming the prices orally quoted. A purchase order for structural steel was executed by Barcus and submitted to the steel company November 5, 1968. The order is shown to have been accepted by K. C. Steel through the signature of Robert H. Dill, its vice-president of sales.
At the commencement of the trial the court, on stipulation of counsel for both parties, entered judgment in favor of plaintiff on its account against defendant in the amount of $144,781.35, and the case proceeded to trial by the court on defendant’s counterclaim. We are advised that the plaintiff’s judgment against the defendant has since been paid. Hence, Travelers Indemnity Company has made no appearance in this court.
Defendant’s counterclaim is predicated on the plaintiff’s alleged failure to deliver structural steel according to the shipping schedule included in the purchase order. That portion of the purchase order reads:
“In that time is of the essence in the prosecution of this contract, it is agreed that the shipping schedule will be as follows:
“Starting approximately June 15, 1969 with completion approximately August 15, 1969.”
According to the record, the project was substantially completed, so far as carrying traffic was concerned, in December 1970, although some handrailings appear to have been installed sometime the following April. It is not open to question that there was some delay in delivery, and the record reflects a good deal of argument pro and con as to what caused the delay and K. C. Steel’s responsibility therefor. No one disputes that a strike of ironworkers occurred in the Kansas City area about April 1, 1969, and lasted until the middle part of July; that it closed down the unionized ready-mix concrete plants in the area, including the plant from which Barcus obtained its concrete to build the piers and abutments; that Barcus ceased pouring concrete shortly after April 1, and the steel company, when its president became aware of the stoppage, cut back its production of structural steel for the 7th Street job. There was crimination and recrimination between the steel company and Barcus as to why Barcus stopped pouring the piers; why the cutback was ordered; why Barcus was not notified of the cutback until early May and what effect it had on the progress of the work. All in all it would appear there was at least some lack of communication between the two companies. Be that as it may, delivery of structural steel was begun not later than early September, 1969, K. C. Steel having been told in the meantime that delivery would be wanted six weeks after the strike ended. Deliveries appear to have continued regularly during the remainder of the work. The record reflects there were other causes contributing to work delays, including changes made by the state in the plans and specifications for the project. Disputes also arose between the contracting parties at the trial as to whether the defendant was ready to take the steel when it was available for delivery.
We believe it would prove fruitless, however, to dwell further on the numerous points of conflict existing between the parties during this litigation. The work was finally finished in 232 working days as computed by the state — this being well within the time allotted for completion. As a consequence, the state assessed no penalties against Barcus.
During the latter part of 1970 the defendant got behind in pay- merits due plaintiff, despite numerous attempts on plaintiff’s part to effect collection. Eventually, on May 6, 1971, the steel company billed Barcus for the entire balance due in the amount of $132,489.65 (later established by stipulation as $144,781.35). Ten days later, and for the first time Barcus had mentioned the subject, K. C. Steel was billed for $173,285 in damages claimed to be due for added expense incurred by Barcus caused, so it was said, by plaintiff’s delay in delivering structural steel.
The plaintiff has asserted a number of defenses in opposition to defendant’s counterclaim and has raised several points on appeal. However, throughout the entire course of litigation, the steel company’s primary reliance appears to be placed on the exculpatory clause contained in the Barcus purchase order. It reads as follows:
“All of the terms and conditions of the plans and specifications and contract documents between the Owner and the Purchaser which are applicable to the materials to be furnished under this Purchase Order shall become a part of this purchase, as if written herein; provided, however, Kansas City Structural Steel Company shall not be responsible for any damages for any delay in its performance unless such delay is not excusable thereunder or is not of the type for which an extension of time may be granted thereunder and unless such delay is the sole cause of delay to the Purchaser for which the Purchaser is assessed and pays damages thereunder.”
K. C. Steel’s argument amounts to this: Inasmuch as the project was completed within the number of working days contemplated by the state as set out in the prime contract, and since the state has assessed no damages against Barcus for any delays, the proviso in the foregoing clause precludes Barcus from claiming damages from K. C. Steel. The validity of this contention depends on the proper construction of the exculpatory clause.
Before we proceed further note should be taken of the fact that the exculpatory proviso is part and parcel of the clause which incorporates into the Barcus purchase order all the terms and conditions of the plans and specifications and contract documents between the state, which is designated in the clause as Owner, and Barcus, the prime contractor, which is designated as Purchaser.
The proviso itself was not ignored by the trial court in entering judgment for Barcus, but the construction placed upon it appears to us as open to serious question. The following findings set forth in the journal entry indicate the rationale on which the court found in favor of Barcus:
“This Court finds:
“I. That the ‘ Steel Co. shall not be responsible for any damages for any delay in its performance unless such delay is not excusable thereunder.’
OR
“2. ‘is not of the type for which an extension of time may be granted thereunder AND unless such delay is the sole cause of delay to the Purchaser for which the Purchaser is assessed and pays damages thereunder. ’
“Since Barcus was neither assessed nor required to pay any damages to the State, this portion of the contract does not concern us and the Court so finds.
“We must then consider the questions of whether there was a delay by Steel Co. in its performance and, if so, whether ‘such delay is not excusable thereunder.’ ”
Having arrived at these findings, the court proceeded further to find there was delay in performance on the steel company’s part and that the delay was not excusable. Hence, judgment was entered in favor of Barcus for the full amount requested.
While we make no pretense of being accomplished grammarians, it is our opinion the trial court has mispunctuated the proviso in the process of misconstruing it. Despite diligent search, we find no period or other punctuation mark placed before the disjunctive word “or” in the exculpatory proviso, nor do we find that the words “or” and “and” are capitalized as the trial court has seen fit to do in its findings. The court’s restructuring of the proviso imports a different meaning than the one we would ascribe to it.
As we read the clause, while it may not be perfectly phrased, damages cannot be claimed unless (1) the delay is not excusable under the prime contract or (2) is not of the type for which an extension of time can be granted under that contract, and in neither case may damages be claimed unless the delay is the sole cause of delay for which Barcus is assessed and pays damages under the prime contract. In other words, the second subordinate phrase beginning with “unless” refers to and modifies the preceding two types of delay described.
As the plaintiff points out in its brief no reason has been advanced for the parties to have distinguished between the two types of delay so far as relieving plaintiff from liability for damages is concerned. Under the court’s construction, as we read it, liability for delay which is not excusable under the state contract would be -unlimited while liability for delay for which no extension of time could be granted under that contract would be limited. We see no valid reason for the distinction. K. C. Steel also suggests that were we to interpret the proviso as the trial court has done, the second “unless such delay” would be meaningless, which is to say, the Barcus interpretation would be stated more clearly were the second “unless such delay” omitted entirely. We believe this is so.
The word “unless” is a subordinating conjunction in common usage, connecting a dependent or subordinate clause of a sentence with the main or primary clause. Subordinate sentence elements are said to modify the sentence as a whole. (Porter G. Perrin, Writer’s Guide and Index to English [3d Ed.] 479.) “Repeating a conjunction at the beginning of each element”, Professor Perrin points out, “gives distinctness to each element, avoids possible confusion, and gives the advantage of clear-cut parallelism.” (Id., 479.)
A brief discussion as to the use of unless is found in Graham v. Elevator Co., 115 Kan. 143, 144, 222 Pac. 89, an action in which an attorney’s lien was involved. In that case the court said:
“. . . The meaning of ‘unless’ is: ‘Upon any less condition than (the fact or thing stated in the sentence or clause which follows): . . .’ (Webster’s International Dictionary.) Unless the condition be met, there can be no lien.”
So here, unless the condition of Barcus being assessed damages for delay under its contract with the state is met, there can be no liability on the part of K. C. Steel to pay damages for whatever delay, if any, it may have caused.
In support of the trial court’s interpretation of the exculpatory provision, the defendant cites authority to the effect that “or” is not a conjunctive, but a disjunctive, word. With this authority, we can have no quarrel. However, the “or” of the clause here in question has been placed in the first part of the proviso' between the two types of delay for which damages may be awarded. On the other hand, the conjunction “and” is used later in connection with the second dependent clause introduced by “unless.” In the Perrin work it is said that “and is the most used connective joining two or more elements in a series. In its typical use, the elements are of equal grammatical rank.” (p. 429.)
The exculpatory provision, construed in a grammatical context, relates the payment of damages by the steel company to damages assessed against Barcus under the prime contract. No delay damages were charged against the Barcus firm, and none were paid. Moreover, not a single delay which was noted by the state’s inspectors, although not charged against Barcus, was for late delivery of structural steel.
Before leaving this aspect of the case it may not be amiss to suggest that the defendant’s long delay in asserting a claim for delay damages may have been due to a belated construction of the damage clause, a construction not advanced by Barcus while work was in progress or until the steel company, a considerable time thereafter, presented its bill for payment.
We conclude that under the exculpatory clause either type of delay, i. e., inexcusable delay in performance, or delay of a type for which no extension of time may be granted, must have resulted in assessment of damages to Barcus before Steel would become liable to Barcus in damages.
Barcus contends, however, that unless the exculpatory clause be given the construction adopted by the trial court, the same would be unconscionable and would offend provisions of the UCC, quoting K. S. A. 84-2-719 (3), in part, and citing comments thereunder. Section 84-2-719 relates to contractual modification and limitation of remedy. So far as pertinent, subsection (1) is to the effect that an agreement may limit the measure of damages recoverable. Subsection (3) reads as follows:
“(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.”
The Kansas Comment reads in part:
“This section generally leaves the parties free to shape their own remedies by contract and to limit or modify the remedies authorized by this article. It is the policy of the Code, however, that at least minimum adequate remedies must be available. . . .”
In the Official UCC Comment the following language is found:
“1. Under this section parties are left free to shape their remedies to their particular requirements and reasonable agreements limiting or modifying remedies are to be given effect.
“However, it is of the very essence of a sales contract that at least minimum adequate remedies be available. . . .
“3. Subsection (3) recognizes the validity of clauses limiting or excluding consequential damages but makes it clear that they may not operate in an unconscionable manner. Actually such terms are merely an allocation of unknown or undeterminable risks. . . .”
The exculpatory clause before us does not totally exclude liability for damages in case of a breach, although there is respectable authority that even total exclusion of consequential damages may be the subject of a valid provision in a commercial sales agreement entered into at arms’ length. (K & C, Inc. v. Westinghouse Elec. Corp., 437 Pa. 303, 263 A. 2d 390; Dow Corning Corporation v. Capitol Aviation, Inc., 411 F. 2d 622, 626, 627; Bakal v. Burroughs Corp., 74 Misc. 2d 202, 343 N. Y. S. 2d 541, 544.) In the instant case, it is true, K. C. Steel’s liability for damages was severely limited by the exculpatory clause, but the same limitation was included in a prior contractual arrangement between the same parties and was inserted by Barcus itself in the present purchase order. Accordingly, both parties were familiar with the contents of the clause — it was, in fact, no stranger to either one.
The policy of the law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced. Contracts freely arrived at and fairly made are favorites of the law. (Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 426 P. 2d 60.) None of the parties here involved were neophytes or babes in the brambles of the business world. Both companies, it would appear, dealt in projects involving considerable sums of money; both operated substantial business enterprises; and there is no suggestion that their businesses were not capably managed and profitably operated. The trial court did not find the limitation on damages imposed by the exculpatory clause was unconscionable, and we cannot view it as such. The limitation imposed was not total and was agreed upon by parties standing on equal footing.
The judgment of the district court is reversed with directions to enter judgment for the plaintiff on the defendant’s counterclaim.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is by the State of Kansas from a pretrial order sustaining the defendant’s motion for discharge. The motion was predicated on the state’s delay in filing charges against the defendant, Henry Royal.
There is little, if any, dispute as to the facts. The state alleges that on two occasions, November 16 and November 19, 1973, the defendant possessed for sale and sold marijuana, a controlled substance. The two sales were allegedly made to an undercover agent, Bob Allen, who was connected at the time with the Johnson County sheriffs office.
A complaint was issued May 3, 1974, and the defendant surrendered himself on May 22, having learned the police were looking for him, and after conferring with his attorney. A preliminary hearing was commenced June 11 and completed July 1, at which time Mr. Royal was bound over to the district court for trial. Mr. Allen testified for the state at the hearing.
Prior to arraignment, the defendant filed his motion for discharge. An evidentiary hearing was held at which two witnesses appeared: the defendant and Detective Davies, the supervisor of the county drug unit. Bob Allen did not testify. The trial court made findings of fact and conclusions of. law and determined that the defendant should be discharged.
From the evidence adduced at the pretrial hearing the trial court found that the defendant “does not remember having previously seen” Mr. Allen prior to the time he testified at the preliminary hearing; that Allen had reported the alleged sale of marijuana on November 26; that Detective Davies could have arrested defendant for the offenses on the dates they allegedly occurred but intentionally and deliberately elected not to do so; that Davies’ memory was not as good now as it was on November 16, that he hadn’t the slightest idea of what he did on that date unless he would refer to his notes, and he did not remember when he turned the information over to1 the district attorney’s office; and that Davies had on many occasions in the past made arrests on seeing crimes committed, such as sales of marijuana, without a chemical analysis.
Other pertinent portions of the court’s opinion are as follows:
"The court determines as a matter of law that a police officer, upon learning that a felony has been committed, has a duty to take steps necessary to effect the arrest of the felon, without unnecessary delay.
“The court determines as a matter of law that in accordance with the holding in the case of Ross against the United States, 349 Fed. 2d 210, decided in 1965, and the case of People against Hernandez, 166 N. W. 2d 281, decided in 1969, and other cases of similar import, that procedural due process requires a timely arrest in order to allow a defendant the use of his memory to determine the existence of res gestae witnesses and to prove his defense.
“The court further determines as a matter of law that in the absence of an affirmative and convincing explanation of a delay in making an arrest where the defendant is prejudiced in making a defense, it must be presumed that due process is violated.
“The court further determines that delay in making an arrest in a narcotic case can only be tolerated and not be the basis for a finding of lack of due process when, 1,. the delay is explainable, and by explainable the court is interpreting that term to mean justifiable; 2. When it is not deliberate; and 3, when no undue prejudice attaches to the defendant.
“In this case the court determines that the delay in making the arrest is not justifiable, that it is deliberate and intentional, and that prejudice attaches to the defendant by reason of the delay.”
The state lists six points of error in challenging the court’s decision. In a general way it may be said they refer to' the pretrial nature of the hearing, to certain findings of the court and to the legal basis on which the court concluded that due process had been violated.
Although this court has had no occasion to consider the effect of delays occurring prior to the filing of formal charges, the question is not exactly new or novel. It has cropped up a good many times in other jurisdictions, especially in the courts of the federal judicial hierarchy. As we read the various cases dealing with the subject they tend to divide generally along three lines.
First, there is authority that a delay occurring between the time of an offense on the one hand, and the indictment or filing of a complaint on the other, is controlled by the applicable statute of limitations, not by the guarantees of speedy trial written in the Sixth Amendment. (United States v. Judice, 457 F. 2d 414 [5th Cir.]; United States v. Harris, 412 F. 2d 471 [6th Cir.]; Lothridge v. United States, 441 F. 2d 919 [6th Cir.].)
In Nickens v. United States, 323 F. 2d 808, the court spoke in this wise:
“Appellant’s claim relating to the delay between the date of the offense and the commencement of criminal prosecution is not covered ... by the Sixth Amendment, but rather it relates to the running of the applicable statute of limitations. (Citing cases.)” (p. 809.)
It is only fair to say at this point, however, that the state “does not take the extreme position that [it is] restrained only by the statute of limitations.”
A second and less restrictive rule — and on which the trial court hung its hat — was applied in Ross v. United States, 349 F. 2d 210, and People v. Hernandez, 15 Mich. App. 141, 170 N. W. 2d 85. In the Ross case the court observed that the record showed “(1) a purposeful delay of seven months between offense and arrest, (2) a plausible claim of inability to recall or reconstruct the events of the day of the offense, and (3) a trial in which the case against appellant consists of the recollection of one witness refreshed by a notebook.” On the basis of that record the court held due process had been infringed. The court went on to say, however:
“. . . Without attempting to define the precise reach of the Fifth Amendment in this context, a due regard for our supervisory responsibility for criminal proceedings in this jurisdiction requires in our view, the reversal of this conviction.” (p. 216.)
Before leaving Ross, which was decided by a divided court, two to one, we should mention that the decision has generally been regarded as being based primarily on “an exercise of [its] supervisory power.” (Powell v. United States, 352 F. 2d 705.) In United States v. Sanchez, 361 F. 2d 824, the second circuit Court of Appeals said Ross “grew out of the courts concern over a pattern of cases and its desire to carry out its function of ‘supervisory responsibility for criminal proceedings’ involving the District of Columbia Metropolitan police force.” The same view is expressed in Dancy v. United States, 395 F. 2d 636, where the court stated:
“. . . We regarded Ross more as a challenge to the police than as a license — a challenge to exhibit some awareness of the very real dangers of misidentification lurking in the narcotics undercover agent practice, and to endeavor consciously to devise methods and procedures which would reduce those dangers as much as possible consistent with effective law enforcement.” (p. 638.)
The Hernandez case phrases the rule in somewhat different language. In ruling that procedural due process was lacking, the Michigan court spoke in these words:
“. . . We recognize that a delay may not be unusual in narcotics and counterfeiting oases, in order to allow proper inquiry into the whereabouts and sources of the contraband; however, where some prejudice is shown, as it is shown in this case, it can be permitted and not be the basis for a finding of lack of due process only where the following elements are present and shown clearly and convincingly to the trier of fact: (1) when the delay is explainable, (2) when it is not deliberate, (3) where no undue prejudice attaches to the defendant.” (p. 147.)
On a factual basis Hernandez is readily distinguishable from the case at hand. There, the defendant was referred to as “an uneducated, illiterate man who neither reads nor writes the English language” — quite a different type of individual than a high school graduate such as Royal, with two courses taken at a junior college. Moreover, the alleged sale was not to the undercover agent but to a known narcotics dealer whom the agent had recruited, and who purportedly paid defendant $250 in marked money which was not recovered upon his arrest some forty-two days later.
A third approach is mirrored in United States v. Marion, 404 U. S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455, where the federal Supreme Court recognized a relationship existing outside of the Sixth Amendment between the requirements of due process and inordinate preaccusation delay. The Marion case rests on the proposition that due process rights may be said to have been denied by reason of preaccusation delay, where it is shown that actual prejudice resulted to the defendant in his ability to conduct his defense and that the government intentionally delayed prosecution to gain a tactical advantage over him. This rationale finds expression, albeit somewhat obliquely, in the following language in the opinion:
“. . . [lit is appropriate to note here that the statute of limitations does not fully define the appellees’ rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees’ rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. . . .” (p. 324.)
It seems worthy of mention that the court had this to say in regard to the element of prejudice:
“. . . Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.” (pp. 325, 326.)
See, also, People v. Allen, 38 Ill. 2d 26, 230 N. E. 2d 170; People v. Alvarado, 258 C. A. 2d 756, 66 Cal. Rptr. 41.
Marion has been followed, not surprisingly, by two- recent cases from the tenth federal circuit, United States v. Beitscher, 467 F. 2d 269, and United States v. Tager, 481 F. 2d 97. We quote from the latter case:
“Complaint is also made that the 18-month delay between the date of the commission of the offense and the presentation of the evidence to- the grand jury was a prejudicial delay. In United States v. Beitscher, 467 F. 2d 269, 272 (10th Cir. 1972), we held 'the rights of a defendant under the due process clause of the Fifth Amendment are not violated in the absence of a showing of actual prejudice resulting from the pre-indictment delay and that the delay was purposefully designed to gain tactical advantage or to harass the defendants.’ We do not believe either of these elements was present in this case.” (p. 100.)
We consider the views expressed in tire Marion, Beitscher and Tager cases to be the better reasoned and more judicious approach to follow in dealing with due process problems stemming from preaccusation delay. Under the rule laid down in those cases two questions must be considered in testing whether there has been an impermissible encroachment on due process rights: (1) Has the delay prejudiced the accused in his ability to defend himself, and (2) was the delay a tactical device to gain advantage over him? Affirmative answers to both questions need be supplied before it may be said that criminal charges should be dismissed.
In answering the second part of the equation the trial cotut must determine the reason underlying the delay — the purpose of the state, and its intent in delaying the filing of formal charges. It is not enough, under what we may refer to as the Marion rule, that delay be deliberate and intentional; the end to be achieved must be looked into. Was the delay necessary to effective enforcement of the law? Could it have been avoided? Or was the delay simply a device to harass and place the defendant at a disadvantage?
In a Note on The Right to a Speedy Trial, appearing in 20 Stanford Law Review 476, the author makes this observation:
“As a general rule, the government should be required to initiate the criminal process as soon as it has decided to prosecute an individual and has sufficient evidence to secure an indictment. An exception to this general rule might be created for those instances in which the police are conducting an undercover investigation, a practice common in narcotics cases. The police might be justified in maintaining the effectiveness of an undercover agent by delaying the arrest of one individual while the agent gathers information on others. However, such a delay would have to be balanced against the interest of the defendant in being informed of the charges against him.” (p. 500.)
Several arguments are advanced by the state in opposition to the trial court’s ultimate conclusions. Two of them have already been answered, i. e., that the trial court erred in adopting the rule set out in Ross v. United States, supra, rather than that found in United States v. Tager, supra. We have agreed the latter is the better rule and should be followed and applied in this jurisdiction.
Applying the rule in Marion and Tager the state maintains that while its delay in filing the complaint against Royal was intentional, it occurred, not to harass or take advantage of Mr. Royal, but as a procedure necessary to root out and eliminate the illegal drug traffic in Johnson County. The evidence was undisputed to that effect, we might say, and the trial court erred in using the Ross-Hernandez yardstick.
The state takes issue with the trial court’s determination that an officer “on learning that a felony has been committed, has a duty to take steps necessary to effect the arrest of the felon without unnecessary delay.” If it be the sense of this conclusion that an officer, on learning of an offense, must immediately arrest the suspect, we think the court went too far. In United States v. Deloney, 389 F. 2d 324, the court considered this question and spoke as follows:
"It is apparent that some pre-indictment delay usually is necessary to the effective prosecution of certain crimes such as counterfeiting or narcotic offenses. In such cases there is a great necessity, in the public interest, to use undercover agents and informers in order to reach the source of the contraband. Some delay is inevitable.” (pp. 325, 326.)
The state further argues the court should have deferred its ruling on defendant’s motion until after trial of the case. The record discloses no objection by the state to hearing the motion as a pretrial matter. Thus the point is not properly before us for determination. Alleged errors will not be considered on appeal unless objected to at the proper time. (Brown v. App, 1 Kan. 582 [2d Ed.]; Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998; McGaughey v. Haines, 189 Kan. 453, 370 P. 2d 120.)
Near the bottom of the barrel of the state’s complaints, error is charged in the court’s having found as a fact, and without corroborating evidence, that defendant did not remember seeing Allen before the preliminary hearing. We find no merit in this contention. The trial court was the finder of the facts and entitled to judge the worth and reliability of defendant’s testimony in such respect. Whether the defendant’s bare assertion that he did not remember was sufficient to support a finding of prejudice is not before us.
For reasons set out in the opinion this case must be reversed with directions to set aside the order of dismissal and proceed with the trial in accordance with the views expressed herein.
It is so ordered.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from an order of the district court sustaining a motion for summary judgment.
The controversy arises from the crash of a chartered aircraft carrying members of the 1970 Wichita State University football team, members of the faculty and university supporters. The plaintiff-appellants are either surviving passengers or personal representatives of those killed in the crash. Defendant-appellee, Wichita State University Physical Education Corporation, is a nonprofit, nonstock corporation organized under the laws of the state of Kansas. This corporation was formed to conduct the business and other transactions of the intercollegiate athletic programs of Wichita State University. The chronology of events giving rise to this action follows:
On July 21,1970, an Aviation Services Agreement was executed by Golden Eagle Aviation, Inc., and Wichita State University for the period commencing September 11, 1970, and ending November 14, 1970 — the scheduled 1970 football season. The agreement was executed by Bruce J. Danielson on behalf of Golden Eagle, and by Bert Katzenmeyer, Athletic Director of Wichita State University, on behalf of that institution. It was attested to by Floyd W. Farmer, Secretary of Wichita State University Physical Education Corporation, Inc. The agreement was attached to the opinion in a companion case, Brown v. Wichita State University, 217 Kan. 279, 540 P. 2d 66.
Under the terms of the agreement, Golden Eagle was to provide a qualified flight crew and other ancillary services for the aircraft to be used by Wichita State University in transporting the members of its football team and other personnel to scheduled games at other universities. Wichita State University was to lease the aircraft described in the agreement as “One Douglas DC-6B” from a third party and to provide passenger liability insurance as prescribed by federal regulations.
On Friday, October 2, 1970, members of the Wichita State University football party departed Wichita, Kansas, in two Martin 404 aircraft for Logan, Utah, for h football game with Utah State University scheduled for Saturday, October 3, 1970.
When the Martin 404 aircraft, No. N464M, took off from Denver, Colorado, an intermediate stop, it was 2,900 pounds in excess of the allowable taking-off weight as prescribed by aircraft specifications of the Federal Aviation Administration. (1 Natl. Trans. Safety Bd., 1028 [1971].) The plane crashed into a mountainside near Silver Plume, 16 miles west of Georgetown, Colorado.
The registered owner of the plane that crashed was Jack Richards Aircraft Company, Inc. No written agreement had been executed with respect to the lease of the plane to Wichita State University for this flight. Written agreements leasing aircraft of Jack Richards to Wichita State University for the first two away games of the 1970 football season had been signed by Mr. Katzenmeyer on behalf of the University. Those leases had been executed prior to each flight.
Golden Eagle Aviation, Inc., and Jack Richards Aircraft Company, Inc., were organized pursuant to the corporate laws of the state of Oklahoma. The record indicates that as a result of an investigation into the operation of Golden Eagle occasioned by the plane crash, Golden Eagle’s air taxi/commercial operator certificate was revoked by the Federal Aviation Administration. That revocation was sustained on appeal by the National Transportation Safety Board. (1 Nat’l. Trans. Safety Bd., 1028 [1971].)
After the plane crash, it was ascertained Wichita State University had not purchased the passenger liability insurance as required in its contract with Golden Eagle. Liability insurance requirements for air taxi operators engaged in transportation are set by regulations of the Civil Aeronautics Board. (14 C. F. R. 298.41 et seq. Subpart D.) The minimum limits of liability coverage are seventy-five thousand dollars ($75,000) for any one passenger, and for each occurrence an amount equal to the sum produced by multiplying $75,000 by seventy-five percent (75%) of the total number of passenger seats in the aircraft. (14 C. F. R. 298.42 [a] [1].)
Three separate lawsuits were filed. Each lawsuit involved multiple plaintiffs and named as defendants Wichita State University and the Wichita State University Physical Education Corporation, Inc. The plaintiffs alleged several causes of action sounding in both tort and contract. The three lawsuits were consolidated by the district court.
On December 26, 1972, defendant Wichita State University filed a motion for summary judgment which was granted by the district court. On appeal to this court, in Brown v. Wichita State University, supra, we reversed and remanded. In so doing, K. S. A. 46-901, 902 were struck down as unconstitutional because they granted immunity to state governmental entities for both governmental and proprietary acts. As a result, Wichita State University, a state institution, could be liable for its proprietary acts. This court took judicial notice that intercollegiate football, as presently carried on, is big business — a commercial activity which is a principal source of athletic income at many universities — and is a proprietary function. Likewise, that the transporting of football players to an away intercollegiate football game is also a proprietary function. The governmental immunity protecting Wichita State University from plaintiffs’ tort claims was thereby removed. This court further held that Wichita State University Physical Education Corporation was a mere instrumentality of the University, and the acts of the corporation were, therefore, the acts of the University. We held the provisions of K. S. A. 1974 Supp. 76-721 requiring Board of Regents’ approval of university contracts did not render the executed and partially performed Aviation Service Agreement invalid.
On May 4, 1974, prior to our decision in Brown v. Wichita State University, supra, defendant Wichita State University Physical Education Corporation moved for summary judgment, and the district court sustained the motion. Plaintiffs perfected an appeal, and the propriety of the district court’s action is now before us.
The district court in its journal entry, after introducing the parties and their counsel, simply stated:
“The Court, having heard the arguments of counsel and being duly advised in the premises, it is
“Ordered that the motion be sustained and that the action be dismissed at the cost of the plaintiffs.”
In reviewing the case, this comí: is handicapped by the lack of any indication by the district court as to what were the genuine issues upon which the case was decided.
The appellants suggest:
“While defendant raised several points in its motion for summary judgment, plaintiffs are unable to tell this Court on what basis the trial court ruled in defendant’s favor. The only comment made by the trial court at the time of the ruling was that he ‘just personally’ didn’t think the University or the appellee could be held liable in this case. Because of the trial court’s lack of specificity in sustaining the motion, plaintiffs will discuss each of the points raised below. . . .”
This does not leave an appellate court much to work on when the validity of a summary judgment is challenged on the basis that genuine issues of material fact exist. In Scott v. Day and Zimmerman, Inc., 216 Kan. 458, 532 P. 2d 1111, it was said:
“. . . By its own terms 60-252 (a) exempts summary judgment from its requirement that the trial judge state the controlling facts, this, of course, for the reason rendition of summary judgment is improper if the controlling facts are in dispute (it has been said that findings may well be helpful in making clear the basis for the trial court’s decision and in indicating what that court understood to be the undisputed facts on which summary judgment was granted [9 Wright & Miller, Federal Practice and Procedure: Civil §2575, pp. 692-693]). . . .” (l.c. 459.)
Rule 116 of this court relating to appellate practice is broader than Section 60-252 (a) in that it requires in all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by 60-252, briefly state the legal principles controlling his decision. (Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442.) It may be said that the entering of summary judgment is also a contested matter and that when considered with Section 60-256 (d) the district court should state what it considers to be the controlling facts and the legal principles upon which summary judgment was granted. Otherwise, this comí: upon appellate review will be required to explore and consider every possible legal theory which may be said to be involved in the summary judgment. Judges of a court of record, unlike a jury which may render an unreasoned decision in a general ver diet, must, under our statute and Rule 116, “go on the line,” so to speak, and render a “reasoned decision” — that is, assign reasons for the decision rendered.
On many occasions this court has announced the rules governing summary judgments under the provisions of K. S. A. 60-256.
In one of our earlier cases, Herl v. State Bank of Parsons, 195 Kan. 35, 403 P. 2d 110, we stated:
“On the hearing of a motion for summary judgment there should be no attempt to resolve conflicting questions of fact. The party who moves for a summary judgment has the burden of establishing without a doubt that there is no genuine issue of fact (Warner v. First National Bank of Minneapolis, 236 F. 2d 853, certiorari denied, 352 U. S. 927, 77 S. Ct. 226, 1 L. Ed. 2d 162). Any doubt as to the existence of such an issue is resolved against the movant (Zompos v. United States Smelting Refining and Min. Co., 206 F. 2d 171). The pleadings are to be liberally construed in favor of the party opposing the motion (Purity Cheese Co. v. Frank Ryser Co., 153 F. 2d 88). He is to be given the benefit of all reasonable inferences to be drawn from the evidentiary matter and all facts asserted by the party opposing the motion and supported by affidavits or other evidentiary material must be taken as true. . . .” (l. c. 37.)
In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964 we warned that a summary judgment proceeding is not a trial by affidavits or depositions, and the parties must always be afforded a trial where there is a good faith dispute over the facts; a plaintiff cannot be compelled to submit his evidence in the form of affidavits in resistance to a motion for a summary judgment and have the issues determined by such motion. In the opinion it was said:
“A mere surmise or belief, no matter how reasonably entertained, that a party cannot prevail upon a trial, will not justify refusing him his day in court with respect to material issues which are not clearly shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. It must be shown conclusively that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law. (Ford v. Luria Steel & Trading Corp., 192 F. 2d 880 [8th Cir. 1951].)
“A summary judgment upon motion of the defendant should therefore never be entered except where the defendant is entitled to its allowance beyond all doubt, and only where the conceded facts show the defendant’s rights with such clarity as to leave no room for controversy, with all reasonable doubts touching existence of a genuine issue as to a material fact resolved against the movant, and giving the benefit of all reasonable inferences that may reasonably be drawn from the evidence to the party moved against. (Realty Investment Co. v. Armco Steel Corp., 255 F. 2d 323 [8th Cir. 1958].) (l. c. 211, 212.)
In Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, this court stated:
“In the final analysis a court should not determine the factual issues on a motion for summary judgment but should search the record for the purpose of determining whether a factual issue exists. If there is a reasonable doubt as to the existence of a material fact a motion for summary judgment will not lie. No matter how the explanation of the rule is phrased we always return to the language of the rule, there must be left ‘no genuine issue of any material fact.’
“The proper application of the rule leaves but two rather simple questions for determination, i. e., what is a ‘genuine issue’ and what is a ‘material fact?’ The answer as to what constitutes a ‘genuine issue as to any material fact’ appears to account for most of the voluminous opinions on the question.
“It may be said that an issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. . . .” ([. c. 575.)
We have continued to hold that before summary judgment may be granted the record must show that there remains no genuine issue as to a material fact. Kern v. Miller, 216 Kan. 724, 533 P. 2d 1244; Essmiller v. Southwestern Bell Tel. Co., 215 Kan. 74, 524 P. 2d 767; Vaughn v. Murray, 214 Kan. 456, 521 P. 2d 262; Sly v. Board of Education, 213 Kan. 415, 516 P. 2d 895; Weber v. Southwestern Bell Telephone Co., 209 Kan. 273, 497 P. 2d 118; Harter v. Kuntz, 207 Kan. 338, 485 P. 2d 190.
In passing, we note the rule as announced in Ebert v. Mussett, 214 Kan. 62, 519 P. 2d 687. There, it was said:
“Generally, summary judgment may be granted when the record before the court shows conclusively there remains no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court that a party cannot prevail upon a trial will not warrant summary judgment if there remains a dispute as to a material fact. A material fact is one on which the controversy may be determined. . . .” (l. c. 65.)
The record indicates the district judge granted summary judgment because he “‘just personally’ didn’t think the [defendants] could be held hable.” Such a surmise or belief on the part of the district court will not warrant a summary judgment. It may well be the district court believed the basis for its sustaining Wichita State University’s motion for summary judgment, i. e., that K. S. A. 46-901, 902 barred the plaintiffs’ tort claims, and that K. S. A. 1974 Supp. 76-721 rendered by the Aviation Services Agreement invalid because it was not approved by the Board of Regents, was equally applicable to the appellee’s motion for summary judgment in the instant case.
The appellants’ petitions pleaded causes of action sounding in both tort and contract. The tort claims are based on the theories of negligence, breach of express and implied warranties and strict liability. Plaintiffs specifically pleaded the crash was “caused by the negligence, carelessness, wrongful and unlawful acts of the defendants, by their authorized agents, servants and employees in the operation, control, maintenance and leasing of said civil aircraft.” The contract claims are based upon the third party beneficiary doctrine and relate to the failure of defendants to procure passenger liability insurance as required by the Aviation Services Agreement and pertinent federal aviation regulations.
On the state of the record before us it cannot be said as a matter of law that Golden Eagle was an independent contractor. Conflicting inferences may be drawn from the facts presented which make the matter appropriate for the trier of fact. Even if it is determined Golden Eagle was an independent contractor, plaintiffs’ recovery against Wichita State University is not necessarily precluded. Several factual questions, including but not limited to the following, bear on this issue which should be developed at a trial: whether Wichita State University was negligent in its selection of Golden Eagle; whether agents of Wichita State University and Golden Eagle were concurrently negligent in causing the plane crash, and whether Golden Eagle, Wichita State University, or both, were responsible for the plane being 2,900 pounds overweight upon take off at Denver. See, 1 Nat’l Trans. Safety Bd., 1028 (1971).
Tinning to plaintiffs’ contractual claims, it may be said the contract, on its face, appears to be clear and unambiguous and its terms not subject to alteration by parol evidence. As indicated, Golden Eagle was certified as an air taxi operator and was required by pertinent regulations to procure liability insurance as such operator. The fact it had not been certified as a commercial operator of large aircraft to engage in the carriage of persons for compensation or hire in air commerce (1 Nat’l Trans, Safety Bd., 1028, 1031 [1971]) did not preclude its obligation to procure appropriate passenger liability insurance in accordance with pertinent federal statutes and rules and regulations. The plain meaning of paragraph 6 of the contract appears to be that Golden Eagle transformed its legal duty to obtain passenger liability insurance, to a contractual duty assumed by Wichita State University to obtain such insurance for the express benefit of the passengers. Such agreement, to assume the legal responsibility of another, is lawful and enforceable.
The appellee contends that Wichita State University never intended to comply with the terms of the contract and that the contractual duty on the part of the University to obtain insurance was waived by Golden Eagle. The issue of waiver was not before this court in Brown v. Wichita State University, supra (see Syl. ¶ 20 [4]). Whether there was a waiver of any of the terms of the written contract which would defeat rights of the third party beneficiaries would certainly be a matter of conjecture under the record before us. The appellee’s reliance on Stanfield v. McBride, 149 Kan. 567, 88 P. 2d 1002, is not well taken.
Since it appears that many questions of fact must be determined which are not subject to summary disposition, the judgment is reversed and the district court is directed to proceed with the trial of the issues.
Fromme, J., not participating.
REPORTER’S NOTE:
Case No. 47,363 and Case No. 47,706 consolidated and rehearing granted. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover damages for the breach of a contract. Both parties have appealed, and they will be referred to in this opinion as plaintiffs and defendants.
This case was before this court on an appeal from an order of the district court sustaining defendants’ motion for a judgment on the pleadings. The judgment of the district court was reversed. (Stephenson v. Peterson, 131 Kan. 690, 293 Pac. 497.) The case was tried to the court without a jury on the pleadings, reviewed and sustained by this court on the former appeal. The principal facts were agreed to. The plaintiffs, the owners of a farm in Pottawatomie county, some time prior to March 1, 1925, leased the farm to the defendants under an oral lease. By the terms of the lease the defendants were given the use and occupancy of the land until March 1, 1926, on which date they covenanted and agreed to deliver the possession thereof to the plaintiffs. On February 5, 1926, the plaintiffs sold the farm to Arthur Pate, a farmer who at that time lived in Shawnee county, and by the terms of the contract of sale, which wa.s in writing, they agreed to deliver possession of the farm to Pate March 1, 1926. At about the time of the sale the plaintiffs notified the defendants that they had sold the land, and the purchaser desired possession on the expiration of the lease. The defendants refused to comply with the terms of their lease and held the possession of the land. The plaintiffs then entered into an agreement with Pate, the purchaser, to the effect that they would pay the expense of the necessary litigation to recover the possession of the farm. A forcible detention action was filed by Pate which was finally tried in the district court, and resulted in a judgment in favor of Pate on April 21,1926. From this judgment the defendants appealed to this court, gave a supersedeas bond and held the possession of the farm until March 1, 1927. The action was afterwards dismissed in this court for the reason that the defendants had vacated the farm on March 1, 1927, and the question thereby became moot. Under an agreement with Pate to the effect that payment would be without prejudice to any claims for damages, Peterson paid crop rental of the value of $1,409, for the year ending March 1, 1927. Thereafter Pate brought an action against the plaintiffs in the district court of Riley county to recover damages for the breach of the contract of sale, which resulted in a judgment in favor of Pate and against the plaintiffs for the sum of $1,441, and costs $59.60. The plaintiffs paid the judgment to Pate and took an assignment of the supersedeas bond given in the forcible-detention action. The plaintiffs filed an action in the district court on the supersedeas bond, which provided that Peterson would pay rent and damages caused by waste beginning March 1,1926, and ending at the time of the surrender of the possession of the farm. In this action final judgment was rendered against the plaintiffs.
There was also evidence to the effect that the plaintiffs obligated themselves to pay an attorney fee of $250 in the forcible-detention action brought by Pate against the defendants, and that they were also charged an attorney fee of $350 in defending the action brought by Pate against them on the contract of sale. The court on this evidence rendered a judgment in favor of the plaintiffs and against the defendants for the sum of $1,510.50, which was the amount of the judgment, including interest and costs, rendered against the plaintiffs in favor of Pate in the district court of Riley county. The court refused to allow the attorney fees as an element of damage.
The defendants devote a considerable portion of their brief to a reargument of the questions decided by this court on the former appeal. It was there held that the plaintiffs could maintain the action; that it was predicated on a breach of the lease contract and not on a judgment, and that the action on the supersedeas bond was not res judicata with respect to the damages sought in this action. These questions have been determined and will not be reconsidered on this appeal.
It is argued by the defendants that in the former appeal the condition of the supersedeas bond was not before the court, but that it is now here on the agreed statement of fact and is to the effect “that the Petersons should pay rent and damages caused by waste beginning with March 1, 1926, and ending at the time of the surrender of possession,” and since the bond covered the entire period of the unlawful withholding of the possession the judgment on the bond was a complete adjudication of the rent. An examination of the opinion in the former case reveals that the court considered this question. In the opinion it is said with reference to the supersedeas bond:
“ . . . which bond was conditioned, as required’ by statute (R. S. 61-1011), that defendants should not commit or suffer waste and should pay double the value of the use and occupation of the real estate from March 1, 1926, to the date of the. delivery of the premises, ...” (Stephenson v. Peterson, supra, p. 691.)
The bond was dated May 7, 1926, and the court concluded that while the terms of the bond purported to cover the entire time of the unlawful possession the statute only obligates the sureties to pay from the date of the bond. “But it seems quite clear that the issues in the two cases might be entirely distinct. The liability on the bond was from the date of the bond to the time of surrendering possession. (R. S. 61-1011.)” (Stephenson v. Peterson, supra, p. 694.) The question was fully considered and decided against the contention ofi the defendants, and it will not be disturbed by this appeal.
The only question for the court’s consideration on defendants’ appeal is whether there was competent evidence to support the cause of action stated in the petition. The undisputed facts are that the lease contract expired March 1, 1926, on which date the defendants agreed to surrender possession of the farm; that the plaintiffs, relying upon this agreement, entered into a contract of sale with Pate wherein he agreed to deliver possession of the farm to them on March 1,1926; that the defendants breached their contract and unlawfully held possession of the farm until March 1, 1927; that the plaintiffs were forced to defend an action brought by Pate on the contract of sale and ultimately required to pay a judgment in the amount of $1,500.60. This judgment was offered and received in evidence. The defendants argue that this was error, contending that the judgment was not an adjudication binding on the defendants in this case because they were not parties to the action in which the judgment was rendered. The fallacy of the defendants’ argument is in the fact that this action was bottomed on a contract and not on the judgment. The judgment was merely evidence of what the plaintiffs were required to pay by reason of the breach of the lease contract on the part of the defendants. The law is well established that where the tenant breaches the lease and unlawfully holds the possession of the -premises the landlord may recover damages to the extent of the natural and necessary consequences of his unlawful act. (36 C. J. 63; Stephenson v. Peterson, supra.) The defendants had the right to offer any testimony they might have in mitigation of the damage, which would include any evidence that would tend to show the action was not properly defended, or that items of damages were allowed which were not directly caused by the breach of the lease contract. The judgment was prima jade proof of the damage and the defendants appear to have been content to rest their case on such proof. The judgment was properly admitted in evidence. (Vanderpool v. Burkitt, 113 Or. 656.)
It is contended on the part of the plaintiffs, who have brought the question here by ci’oss appeal, that the court erred in refusing to allow the attorney fees and expenses in the prosecution of the action against the defendants by Pate and in the defense of the action brought against the plaintiffs by Pate. The evidence is that the plaintiffs agreed to pay the expenses of the action brought by Pate to recover the possession of the land which the defendants unlawfully held; that they .obligated themselves to pay an attorney fee of $250, and that a reasonable attorney fee for the defense of the action brought by Pate, against the plaintiffs was $350. The record indicates, that the defendants do not question the amount of the attorney fees, but base their objection entirely on the legal ground that attorney fees were not a proper element of damage. The trial court appears to have adopted the theory of the defendants and disallowed these items. The plaintiffs argue that these expenses were caused directly by the failure of the defendants to deliver possession of the land.
In the case of Smith v. Bottomley, 30 Haw. 853, the court held:
“In such a case the lessors may recover as damages the cost of judicial proceedings necessary to secure possession from the subtenant, including counsel fees for services rendered in the action brought for the purpose, and the value of the use and occupation of the premises during the period when the subtenant remained wrongfully in possession.” (Syl. 112.)
In the case of Burchfield v. Brinkman, 92 Kan. 377, 140 Pac. 894, the court held:
“In an action on the covenants of warranty in a deed conveying certain hotel property, possession of which was withheld by the vendor’s tenant, who claimed to be in for a term of years, but who was in fact a mere tenant from month to month, it is held that the measure of damages was the loss occurring to the plaintiff as the natural, direct and proximate result .of the breach which would include the necessary and reasonable expense of a forcible' detention action which the plaintiff had brought to obtain possession, the attorney’s fee therein, and also what the possession of the tenant was fairly and reasonably worth.” (Syl. ff 1.)
Where a landlord, relying upon the fulfillment of the lease by the tenant, enters into a contract for the sale and possession of the premises on the expiration of the lease, such landlord may recover from the tenant any and all damages which may fairly be considered as the natural and proximate result of the breach of the contract of sale brought about by the unlawful acts of the tenant. The attorney fee of $350, which the plaintiffs obligated themselves to pay in defending against the action brought by Pate on the contract of sale, was certainly an element of damages which was the natural consequence of the breach of the contract of sale. There can be no question but that the plaintiffs are entitled to recover this sum as damages. The attorney fee paid in the prosecution of the forcible-detention action was a voluntary arrangement entered into by the plaintiffs and Pate to obtain the possession of the land. The plaintiffs were bound to avoid a breach of the contract of sale and to do what they could to mitigate the damages resulting therefrom. The forcible-detention action was a summary procedure and if its purpose had been accomplished Pate would have been in possession of the land shortly after the judgment was rendered in the district court on April 21, 1926, and he would not have been in a position to have recovered a large sum of damages from the plaintiffs by reason of the delay in delivering possession of the premises. The agreement with Pate to pay the expenses of this litigation appears to have been made in good faith and in an honest effort to avoid a breach of his contract and resulting damages. Under such circumstances we hold that the payment of the attorney fee of $250 was an element of damages which may fairly be considei-ed as the natural and proximate result of the unlawful acts of the defendants. It necessarily follows that the plaintiffs are entitled to recover a further judgment against the defendants of $600.
The judgment of the district court is modified in that it is ordered and directed to enter a further judgment in favor of the plaintiffs and against the defendants in the sum of $600. In all other respects the judgment of the district court is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Sloan, J.:
This is an appeal from an order of the district court sustaining on review an order of the public service commission. The judgment of the district court was entered December 15, 1931. An appeal was taken to this court on March 28, 1932, and on the next day orders were made by this court staying all proceedings under the judgment of the district court until the hearing and determination of the appeal. Thereafter a motion was filed by the appellee to set aside the stay orders entered by this court on the ground that the orders were issued ex parte, without notice, and for the purpose of staying and suspending an order of the public service commission. Briefs have been filed on this motion and we shall determine the validity of 'the stay orders made by this court without reference to the merits of the appeal.
On October 3, 1931, the public service commission ordered the construction of a switch track in Kansas City, Kan., by the appellee, crossing a switch track of the appellant. On the application of the appellant the order was modified in some particulars on October 16, 1931. From this order the appellant appealed to the district court of Wyandotte county and that court, on December 15, 1931, found that the order made by the public service commission was lawful and reasonable, and entered a judgment sustaining the order.
The order of the public service commission was made under and by virtue of R. S. 66-161, which authorizes the commission after hearing to determine “the manner of such crossing and the terms upon which the same shall be made and maintained.” This statute, as it was originally enacted, provided a procedure for an appeal to the district court. The procedure was modified by subsequent legislation {In re Luttgerding, 83 Kan. 205, 110 Pac. 95), culminating in the enactment of R. S. 66-118. This statute not' only provided for a review of the orders of the commission in an action in the district court, but also for an appeal to this court, and that the order of the district court remain in effect unless stayed by this court. The legislature of 1929 adopted an act “providing for rehearing and for review of orders or decisions of the public service commission,” and repealed R. S. 66-118. This statute, which is now R. S. 1931 Supp. 66-118a eti seq., provides an entirely new and complete procedure for the review of decisions made by the public service commission, including appeals to this court. {Wichita Gas Co. v. Public Service Com., 132 Kan. 459, 295 Pac. 668.)
It is provided that:
. . No court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided.” (R. S. 1931 Supp. 66-118d.)
“. . . No order so staying or suspending an order or decision of the commission shall be made by any court of this state otherwise than on five days’ notice and after a hearing, and if a stay or suspension is allowed the order granting the same shall contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage.” (R. S. 1931 Supp. 66-118g.)
This court has inherent power to issue such orders as may be necessary restraining the performance of any act which might interfere with the proper exercise of its rightful jurisdiction {C. K. & W. Rld. Co. v. Comm’rs of Chase Co., 42 Kan. 223, 21 Pac. 1071), and a grant of appellate jurisdiction implies the power to make all orders that will preserve the subject of the action and give effect to the final determination of the appeal. {Kjellander v. Kjellander, 90 Kan. 112, 132 Pac. 1170.)
In the case of Bank v. Cement Co., 83 Kan. 630, 112 Pac. 332, a justice of this court, on application, granted an order staying all proceedings in the district court pending the determination of an appeal which prevented the sale of property held under attachment. On a motion to set aside the order, the court said:
“As the only question raised concerns the power to make such an order under the circumstances, the motion must be denied. The statute provides that during the pendency of the appeal the supreme court ‘may make an order suspending further proceedings in the court below.’ ” (p. 632.)
The original jurisdiction of this court is defined by the constitution, but it has only “such appellate jurisdiction as may be provided by law.” (Const., art. 3, § 3.) Thé legislature has the power to grant, limit and withdraw the appellate jurisdiction of this court and to provide a procedure for the exercise of the jurisdiction granted. The litigant has no vested right in an appeal which may not be abolished by the legislature. (Coal Co. v. Barber, 47 Kan. 29, 27 Pac. 114; Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539; Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251; Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233; Begley v. Missouri Pac. Rld. Co., 128 Kan. 790, 280 Pac. 902; Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818.) Where appellate jurisdiction is provided by law the court has inherent power, in the absence of an express prohibition, to make any order that may be necessary to the effective exercise of such jurisdiction and that will preserve the subject of the action and give effect to the final determination of the appeal.
In the enactment of R. S. 1931 Supp. 66- 118a et seq. the legislature provided a procedure complete in itself for the adjudication of all orders and decisions made by the public service commission, and by the express terms of that statute the power of this court to restrain or stay the orders of the commission can only be exercised in compliance with the statute relating to notice and hearing. (R. S. 1931 Supp. 66-118g.) It necessarily follows that since the orders in question were made ex parte and without notice, the court exceeded its power, and the motion to set aside the order should be allowed.
It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for injuries sustained by plaintiff and caused by the alleged negligence of defendant through its failure to put up sufficient warning lights and signs to apprise motorists of an excavation it had made on the public highway.
On the afternoon of April 8, 1931, defendant made an excavation on highway No. 15 in Dickinson county for the purpose of constructing a culvert. The excavation extended the full width of the north- and-south road, and was four to six feet deep and seven or eight feet wide. That evening defendant placed a barricade on the highway about forty-five feet south of the excavation and a similar barricade about the same distance north of it. Each barricade consisted of a cross made of two-by-four scantlings standing upright in the middle • of the road and two two-by-six planks which were laid across the road. In the center of the road one end of each plank rested in the cross made of the scantlings, and together these planks formed an obtuse angle of a triangle whose base was the width of the traveled part of the road. Defendant did not place on the road any other warning signs or lights, nor did it set any m'ark to indicate the temporary detour necessitated while the culvert was being constructed.
About eight o’clock the same evening plaintiff drove northward over this highway in a Ford roadster at a speed which he estimated at thirty to thirty-five miles an hour. He testified that he could stop his car in seventy-five feet when traveling at that speed. He also testified that his auto,lights were burning and that they would permit him to see objects for a distance of fifty feet ahead of him— “a little further, maybe.” The evening was dark and rainy and he did not see the barricade as he approached the excavation from the south; his car struck it and his lights were extinguished; he drove into the excavation and sustained injuries to himself and damages to his car.
This lawsuit followed. The main defense of present concern was plaintiff’s contributory negligence. At the trial, after plaintiff rested, defendant’s demurrer to the evidence was sustained.
Later and during the same term plaintiff moved to set aside the judgment, which motion was sustained. The court said:
“The demurrer was sustained on the theory that the plaintiff’s evidence showed facts which as a matter of law constituted contributory negligence. It was upon the theory that the barrier on the highway could have been seen by the driver of the automobile, and had he been driving at such speed that his car could have been stopped within the range of his vision, he could have avoided the collision. Had the driver seen the obstruction a different question would be presented, but it was not as a matter of law negligence on his part to fail to observe the barrier.” (Citing and quoting from Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877, 29 C. J. 699-700; 58 A. L. R. 1482; 45 C. J. 954.)
“The court is of the opinion that the matter of contributory negligence of the plaintiff should have been submitted to the jury and the motion to set aside the judgment should be sustained. It is so ordered.”
The journal entry reads:
“And now on this 9th day of November, 1931, and at the same term of said court, the court finds that the motion of said plaintiff to set aside said judgment should be, and the same is hereby sustained, and said judgment heretofore rendered in favor of said defendant upon the ruling sustaining said defendant’s demurrer to the plaintiff’s evidence is set aside.”
Defendant appeals, specifying error as follows:
“The court erred in sustaining plaintiff’s motion to set aside the judgment which had been entered in favor of the defendant upon the order of the court sustaining defendant’s demurrer to the evidence.”
Defendant makes a vigorous argument that plaintiff was guilty of contributory negligence as a matter of law. The fact that plaintiff admits he did not see the barricade is urged as conclusive proof that he had not been keeping a vigilant outlook ahead of him. But there was testimony that the night was dark and rainy, and that a short distance south of the barricade there was a slight knoll which plaintiff’s car had to climb which would throw his lights above the barricade and that they would not reveal the barricade until he was close to it. When he struck something (the barricade) which put out his lights he pushed on his brakes until the car began to sway, so he eased on them — which was not an unreasonable thing to do, especially as he was quite familiar with the road and had no reason to expect that there was a pitfall immediately ahead of him. It is also argued that defendant’s contributory negligence was established by his own testimony that he was driving at such a rate of speed that he could not stop his car within the distance its headlights would reveal the road to be free of obstructions. This court has often held that it is negligence as a matter of law to drive an automobile on a public road on a dark night at such a speed that it cannot be stopped within the radius of its headlights or within the distance that objects, obstructions or danger signals can be seen. {Tuer v. Wayland, 129 Kan. 458, 283 Pac. 661, and citations.) Plaintiff’s evidence was that at the rate he was driving he could stop his car in seventy-five feet. He also testified that the radius of - his headlights would enable him to see objects or obstructions “probably fifty feet; a little further, maybe . . . not a great deal further.” Such evidence measurably approaches proof of plaintiff’s contributory negligence; but still we think the circumstances, the contour of the road, the want of the statutory warning signs and the inconsequential character of the barricade which might not be readily discernible on that dark and drizzling night, made the question one for the jury and not determinable as a matter of law. (Billings v. Aldridge, 133 Kan. 769, 3 P. 2d 639; Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837.) Other recent cases to the same effect are: Stanger v. Hunter, 49 Ida. 723; Rotefsky v. Bova, 274 Mass. 23, 174 N. E. 192; Spreng v. Flaherty (Ohio App. 1931) 177 N. E. 528; Williams v. Express Lines, 198 N. E. 193; Morehouse v. Everett, 141 Wash. 399, 58 A. L. R. 1482, and note.
If there were any doubt about the soundness of the foregoing conclusion it would seem that the ruling of the trial court would have to be affirmed for another reason. The trial court had full control of the cause during the term. Manifestly, on mature reflection it was not satisfied with the result. Even if the cause had gone to the jury and a general and special verdict had been returned with findings in accord with the evidence as now construed by appellant, nevertheless the court in the exercise of its discretion could'have granted a new trial. (Schubach v. Hammer, 117 Kan. 615, 232 Pac. 1041.) Such was the practical effect of the trial court’s final ruling and it cannot be disturbed.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in the nature of specific performance to require defendant to proceed with the improvement of one of the main arterial traffic ways of the city in accordance with a contract which he had previously made with the city for that purpose. The real purpose of the action was to have an adjudication in the nature of a declaratory judgment interpreting the statute under which the contract for the improvement was made. The trial court interpreted the statutes in question and rendered judgment for plaintiff. Defendant has appealed.
In 1929 our legislature enacted a statute (Laws 1929, ch. 132) for the designation by the governing body of the city of certain streets or avenues as main arterial traffic ways and for their improvement. In State, ex rel., v. French, 130 Kan. 464, 286 Pac. 204, this statute was held to be valid and to be applicable to the city of Kansas City, Kan. The third section of the act gave the governing body of the city power, by resolution without any petition by property owners, to improve the main arterial traffic ways designated, one-half of the cost to be paid by the city at large, the other half to be paid by the property liable to assessment for such improvement, the same to be assessed against the benefit district and apportioned among the various lots and parcels of land “within the benefit district in the same manner as is provided for in the eonstrúction of similar improvements by the provisions of chapter 133 of the Session Laws of Kansas for 1927.” This section (Laws 1929, ch. 132, § 3) was amended by chapter 118 of the Session Laws of Kansas of 1931. The amendment added, following the above quotation, these words: “and all acts or parts of acts amendatory thereof.” It contained this provision:
“No suit to question, the validity of the proceedings of the governing body of such city shall be commenced after thirty days from the date of awarding the contract for said improvements, as provided for in this act. If no suit be filed during said thirty days all the proceedings had thereon shall be held to be regular, sufficient and valid. The contractor shall not be required to commence the construction of said improvements until the expiration of said thirty days.”
These statutes (Laws 1929, ch. 132, as amended by Laws 1931, ch. 118) now appear as R. S. 1931 Supp. 13-1090 to 13-1092. The petition in this case alleged facts showing that the city had in all respects .complied with the provisions of these sections of the statute providing for the designation and improvement of main arterial traffic ways of the city, and that the contract has been let and signed by the defendant more than thirty days prior to the bringing of the action.
The confusion in the statute which gives rise to the actual controversy between the parties to this action comes from the provision therein that one-half of the cost of the improvement shall be assessed against the benefit district and apportioned among the lots and parcels of land within the benefit district “in the same manner as is provided for in the construction of similar improvements by the provisions of chapter 133 of the Session Laws of Kansas for 1927 and all acts and parts of acts amendatory thereof.” This requires that we examine that statute and its amendments.
Chapter 133, Laws of 1927, is a comprehensive measure of fourteen sections relating to the making of special improvements in certain cities and for the issuing of tax bills in payment therefor, and for their collection and procedure relating thereto. In State, ex rel., v. Kansas City, 125 Kan. 88, 262 Pac. 1032, this statute was held constitutional and valid and applicable to the city of Kansas City, Kan. The procedure provided by that statute for initiating the improvement was that a petition, signed by the resident owners of not less than one-half of the feet fronting or abutting on the street to be improved, must be presented to the governing body of the city, which, by resolution, could declare the improvement necessary and contract therefor and levy taxes upon the property on each side of the street to the middle of the block, the entire cost of the improvements to be paid for by special tax bills. It provided that before the improvements should be made, or any advertisements made calling for bids, the city engineer should make a detailed statement of the cost thereof and plans and specifications therefor. Section 2 and subsequent sections of the act authorized the governing body of the city to provide for the payment of the cost of the improvement by special tax bills against the property charged therewith, payable in not to exceed ten annual installments, and that the tax bills be a lien upon the property described therein for the amount of the special assessment, and made further provision relating to the interest rate which the tax bills should bear, and the manner in which they should be paid or could be collected, details of which need not be stated. Section 1 of this act was amended by chapter 128, Laws 1929. The amendments therein made are not material in this case and need not be noted.
In 1931 the legislature (Laws 1931, ch. 117) passed an act relating to special improvements in cities of over 120,000 population and repealing section 1 of chapter 128, Laws of Kansas, 1929. It did not purport to amend the previous statute, but simply repealed it. It provided, in substance, that when the resident owners of real estate, owning not less than one-half of the feet fronting or abutting on the street liable to taxation for special improvements, shall petition the governing body to improve the same, the governing body shall ascertain the sufficiency of the petition, and if it finds the petition sufficient and determines that it is necessary to make the improvement, and that the same would be beneficial to the real estate liable for assessments in payment therefor, may pass a resolution declaring the work or improvement necessary to be done and give notice'thereof, and require the city engineer to make a detailed estimate of the cost of such improvements and plans and specifications therefor and file the same with the city clerk, and advertise for bids for the construction of the work, and may let a contract therefor, and upon letting the contract the governing body shall ascertain the approximate cost of such improvement to the separate tracts and pieces of land liable therefor, and the city clerk shall thereupon mail to the resident owners a written notice of the approximate amount which would be assessed against such land. It contains this provision:
“No suit to question the validity, sufficiency, or regularity of any petition, or the proceedings of the governing body of such city, shall be commenced after thirty days from the date of mailing said notices, and if no suit be filed within said thirty days, all proceedings had thereon to that time, with the exception as to the sufficiency of the petition, shall be held to be regular, sufficient and valid, and the contractor shall not be required to commence the construction of said work until the expiration of said thirty days. . . . Provided, however, that this law shall not be construed as affecting, changing, or altering the arterial traffic-way law, being chapter 132 of the Laws of 1929. or in any way affecting the present statutory provisions for the improvement of boulevards.”
It provided the governing body of the city should have power to issue tax bills in the manner provided by law when the improvements were completed, in accordance with the contract therefor.
The real controversy in this case is whether the city, in proceeding to make improvements of main arterial traffic ways (under Laws 1929, ch. 132, as amended by Laws 1931, ch. 118), was required, upon letting the contract therefor, to ascertain the approximate cost of the improvement to the separate tracts and pieces of land liable therefor, and for the city clerk thereupon to mail to the resident owners of such land written notice of the approximate amount which would be assessed against such land. It is conceded the city has not done that in this case, and defendant contends he should not be required to proceed with his contract until that is done.
It is argued that the amended act (Laws 1931, ch. 118) for the designation and improvement of main arterial traffic ways, having provided for the assessment against the lots and parcels of land within the benefit district “in the same manner as is provided for in the construction of similar improvements by the provisions of chapter 133 of the Session Laws of Kansas for 1927, and all acts and parts of acts amendatory thereof,” and chapter 117, Laws of 1931, having provided that the approximate cost of such improvement" shall be determined, the city clerk shall thereupon mail to the resident owners written notice of the same; and further providing that no suit questioning the validity of the' proceedings shall be commenced after thirty days from the mailing of such notices, that these provisions are read into the main arterial traffic-way act (Laws 1931, ch. 118) and should be complied with. There are three answers to this: First, the legislature of 1931, which wrote into chapter 118 that the assessment of half of the expense against the lots and parcels of land within the benefit district be in the manner as provided by chapter 133 of the Laws of 1927, and all acts or parts of acts amendatory thereof, did not treat chapter 117, Laws of 1931, as an amendment of chapter 128, Laws of 1929. The word “amendment” was not used either in the title or the body of the act.’ Obviously the legislative view was that it was an independent statute, in some respects taking the place of section 1, chapter 128, Laws of 1929, and requiring the repeal of that section, but containing "matter not appropriate as an amendment. In this connection it should be noted that the provisions for determining the approximate cost to each lot or parcel of land, the giving of notice to resident property owners by the city clerk, and the thirty days provided for appeal after such notice should be mailed, were not in the original tax-bill act (Laws 1927, ch. 133; Laws 1929, ch. 128). If the legislature did not consider chapter 117, Laws of 1931, an amendment of section 1 of chapter 128, Laws of 1929, there is no reason why the court should do so. Second, it is clear that chapter 117, Laws of 1931, in providing the time and circumstances under which an action may be brought to question the validity of the proceeding, links that procedure to one initiated by a petition of property owners. It specifically provides:
“No suit to question . . . any petition . . . shall be commenced after thirty days, . . . and if no suit be filed within said thirty days, all proceedings, . . . with the exception as to the sufficiency of the petition, shall be held to be regular. . . .”
It is clear these provisions could not be applicable to a proceeding -under the main arterial trafiic-way act (Laws 1929, ch. 132, as amended by Laws 1931, ch. 118), for the reason that under that act no- petition by property owners is either necessary or proper. Third, in enacting chapter 117, Laws of 1931, the legislature, perhaps fearful it would be contended that the statute would affect the main arterial traffic-way statute, inserted a provision “that this law shall not be construed as affecting, changing or altering the arterial traffic-way law. . . .”
Taken as a whole, it seems clear that the legislature attempted to keep these two methods of making improvements applicable to different purposes, initiated in different ways, each complete in itself, or practically so.
There is a provision in the main arterial traffic-way act (Laws 1931, ch. 118) for the apportionment of one-half the cost of the improvement among the various lots’ and parcels of land within the benefit district in the same manner as is provided for the construction of similar improvements by the tax-bill act (Laws 1927, ch. 133). This obviously refers to the provisions of section 2 et seq. (Laws 1927, ch. 133, now R. S. 1931 Sup-p. 13-1079 to 13-1087), as was held by this court in Taneyhill v. Kansas City, 133 Kan. 725, 728, 3 P. 2d 645. The trial court correctly held that the procedure taken by the city was in conformity to the statute relating to- the designation and improvement of main arterial traffic ways.
Defendant in the court below raised several questions with respect to the constitutionality of chapter 118, Laws of 1931. Each of these was decided seriatim against the contention of the defendant by the trial court. The 'same questions are stated here without definite or specific argument in support of them. We have examined the ques tions, however, and find that all of the points urged have been decided adverse to the contention of appellant in former decisions of this court. {State, ex rel., v. Kansas City, supra; Baird v. City of Wichita, 128 Kan. 100, 276 Pac. 77; State, ex rel., v. French, supra; Taneyhill v. Kansas City, supra.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This action was one to recover damages for a personal injury received in a hospital. The trial court sustained a demurrer to the plaintiff’s evidence, and the plaintiff appeals.
• The appellee, the Wesley Hospital and Nurses Training School, is a corporation organized under the laws of Kansas for the purpose of maintaining a benevolent and charitable institution for minister ing to the indigent sick and wounded. At the time of the accident complained of it was maintaining a hospital and nurses training school in the city of Wichita. The appellee, Blanche Kessler, was a graduate nurse. The appellant, on the advice of her physician, Dr. H. W. Horn, entered the hospital on February 12, 1929, to undergo a surgical operation. She arranged with the hospital to furnish her a room and all the facilities and equipment necessary for the operation. Doctor Horn was her physician and surgeon, and she employed the appellee, Blanche Kessler, as a special nurse to aid in the operation and care for her while she was confined in the hospital. On February 14,1929, the appellant was given two hypodermics, prepared and taken to the operating room where the operation was performed. She was returned to her room but did not regain consciousness for three days, when she discovered that she had been severely and seriously burned with hot water. The nurse, Kessler, told her that the string broke on the proctoclysis set and let the hot water fall into the bed.
Doctor Horn directed the nurse to use the proctoclysis known as the Murphy drip. While the operation was in progress a student nurse in the employ of the hospital prepared the room for the return of the appellant. The proctoclysis set was a part of the equipment of the hospital and was assembled and placed at or near the foot of the bed by the student nurse. The proctoclysis set consists of a standard, which is an iron pole sitting on a tripod containing hooks at intervals, and on these hooks, by means of a chain, tape, string or piece of gauze, is hung a can containing hot water and soda solution. From this can a tube extends, which is inserted in the rectum of the patient to whom the proctoclysis is administered. It was necessary to keep the solution hot in order that it would have a body temperature after dropping through the tube and entering the body. After the appellant was returned to the bed the appellee, Kessler, moved the proctoclysis set along the right side of the bed about even with the hips of - the appellant. She went to the other side of the bed and was taking the pulse of the patient when the string broke and let the water down into the bed, which resulted in the appellant's injury. The vessel containing the hot water and soda solution was fastened to the standard with a piece of gauze. There was evidence to the effect that the equipment was standard and that it was not unusual for the vessel holding the water to be fastened to the standard by gauze, string or other bandage, although a part of the vessels were equipped with chains.
The trial court sustained a demurrer to the evidence, holding that the hospital was a charitable institution and not liable for the negligence of its employees, and that the evidence did not show negligence on the part of the appellee Kessler. This is assigned as error and is here for review.
It is established by appellant’s evidence that the appellee' hospital was a charitable institution organized and maintained for the purpose of ministering to the indigent sick and wounded. It is contended, however, that there is evidence sufficient to take it out of the established rule of this jurisdiction that a charitable institution is not liable for the negligence of its physicians, attendants and employees resulting in injuries to its patients. (Nicholson v. Hospital Association, 97 Kan. 480, 155 Pac. 920; Davin v. Benevolent Association, 103 Kan. 48, 172 Pac. 1002; Webb v. Vought, 127 Kan. 799, 275 Pac. 170.)
It is alleged in the petition that the appellee failed to exercise reasonable care in the selection and employment of its nurses and attendants. The evidence was that the superintendent had had no medical training of any kind prior to his appointment as superintendent of the hospital. The evidence does not show, however, that the superintendent had anything to do with the care of patients or the preparation of the equipment. He appears to have been the executive head of the hospital and as such had general supervision over the institution. The physicians and surgeons were apparently selected by the patients. Experienced graduate nurses had direct supervision over the student nurses, and the equipment of the hospital was standard equipment of the kind and character usually found in such institutions. It might, of course, be desirable to have a trained physician for the executive of any hospital, but such person may be wholly lacking in executive ability. The successful operation of a hospital, like any other business, must necessarily depend upon the ability of the superintendent to organize and maintain the institution in accordance with recognized standards. Technical advice and service may be employed. In this case the surgeon and the nurse were of the appellant’s own choosing. This does not show a lack of due care on the part of the hospital in the employment of its agents and servants, and this case is not distinguishable from the cases cited and is controlled by them. We have reviewed the authorities cited in appellant’s brief from other jurisdictions where a different rule has been adopted with reference to the lia bility of charitable institutions, but we find nothing therein warranting this court in overruling or modifying the rule established in the cases cited, and it is adhered to. We hold that the court properly sustained the demurrer on the part of the appellee hospital.
The ruling on the demurrer of the appellee Kessler, the nurse, presents in some respects a more difficult question. The appellee was the employee of the appellant, acting under orders of appellant’s doctor in the use of the facilities furnished by the hospital. She had nothing to do with the selection of the equipment. The room to be occupied by the appellant was arranged and equipped while the operation was being performed, in which the appellee assisted. She returned to the room with her patient and found it equipped with a proctoclysis set filled with a solution to administer the proctoclysis to her patient in accordance with the instructions of the attending physician. The proctoclysis set stood at or near the foot of the bed. The water container was fastened to the standard with a gauze string. This appears to be a common practice, not only in this hospital but in others as well, and could not under the circumstances of this case have been a patent defect of which the nurse was bound to take notice. The nurse and her patient were in the room alone. She removed the proctoclysis set to the side of the bed about even with the hips of her patient. There is no evidence tending to show that this was not a proper thing to do. The length of the hose carrying the solution from the container to the body of the patient is not established. While the nurse was taking the pulse of the patient the string broke, the water spilled in the bed and severely scalded the appellant.
The appellant earnestly insists that the doctrine of res ipsa loquitur applies and that the court was bound to presume from these facts that the appellee was negligent.
Res ipsa loquitur, strictly speaking, requires for its application nothing more than the accident itself, an instrumentality within the control of the defendant, and a physical cause which, according to common experience, does not ordinarily occur in the absence of a breach of duty. It is not evidence of negligence and rests essentially on the absence of direct evidence of the defendant’s negligence. Hence the inference arising under the doctrine is overcome when there is evidence of specific acts of negligence, and has no force in the presence of direct evidence. It applies in the absence of testi mony but is of no avail in the presence of testimony. (45 C. J. pp. 1199, 1206; Annotation 59 A. L. R. 468.)
It is alleged in the petition and contended that the evidence warrants the conclusion that the appellee hospital furnished defective and worn-out equipment to be used in the care of the appellant. The accident happened because of the failure of the equipment furnished by the hospital to sustain the water container. There is direct testimony on this question and it may be accepted as an established fact. There is no evidence of any intervening cause affecting the gauze string which held the container to the standard. The established facts take the case out of any general presumption or inference of negligence which would place the burden of explanation upon the appellee and reduces the issue to the failure of the appellee to carefully examine the equipment before using it in the care of the appellant. Was the appellee bound to examine the equipment for latent defects? We think not. The hospital and equipment was of the appellant’s own choosing. The appellee was the employee of the appellant to use the facilities and equipment furnished and she had the right to believe and act upon the theory that the equipment was safe and adequate to perform the service for which it was intended. The evidence is to the effect that the equipment was standard, and there were no patent defects in the proctoclysis set of which the appellee was bound to take notice. It was furnished to her apparently ready for use and it was not her duty to examine into the intricate parts for latent defects. The evidence does not show that the appellee was guilty of negligence, and the court properly sustained the demurrer.
A motion for a new trial was filed after the ruling of the court on the demurrer, and on the hearing of the motion the appellant introduced what she claimed was newly discovered evidence. The newly discovered evidence was from witnesses who testified at the trial. The trial court found that there was a lack of diligence and that it could not consider the newly discovered evidence. As a general rule newly discovered evidence cannot be presented by means of witnesses who testified at the original trial, unless there are unusual circumstances, which do not exist here. (Dunham v. Bokel, 105 Kan. 369, 184 Pac. 636.)
. The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the defendant in an action for damages for injuries received by the plaintiff while riding in the defendant’s taxicab across the railroad track at a high rate of speed on account of the negligence of the defendant driver in failing to look ahead and observe the condition of the crossing, whereby she was thrown to and against the top of the taxicab and her head, neck and spine were seriously injured.
Two errors are especially assigned and urged: The first is the refusal of the trial court, in an effort to impeach the plaintiff, to permit the shorthand reporter to read certain questions asked the plaintiff and answers given by her in the taking of her deposition by the defendant several months before the trial; the second error assigned and urged was the refusal of the trial court, at the request of the defendant, to return the jury to make two of their answers to special questions more definite and specific.
The statute of limitations was involved and a serious conflict existed as to the time of the injury, and therefore the impeaching proof and the specific answer to one of the special questions became very important in the case.
It was alleged in the petition that the injury in the taxicab occurred “on or about the 6th day of September, 1926,” and the petition was filed August 13, 1928. There was strong evidence showing that the accident happened on August 10, 1926, which would bar the action. Against that was the testimony of the plaintiff and her witnesses that it occurred either on September 6 or September 7, 1926. The special questions and the answers thereto, including ‘the one answering as to the time of the occurrence, are as follows:
“Q. 1. State whether or not plaintiff received an injury while riding in the car of the defendant. A. Yes.
“Q. 2. If you answer question No. 1 ‘Yes,’ or in the affirmative, state on what 'date she received said injury. A. On or about September 6, 1926.
“Q. 3. If you answer question No. 1 ‘Yes,’ or in the affirmative, state of what said injury consisted. A. Head, neck and spine.
“Q. 4. If you answer question No. 1 ‘Yes,’ or in the affirmative, state whether or not said injuries were caused by defendant’s negligence. A. Yes.
“Q.5. If you answer question No. 4 ‘Yes,’ or in the affirmative, state what act, or acts, of negligence caused plaintiff’s injury, if any. A. Careless driving.”
About a month after the action was commenced the defendant served the plaintiff with a notarial subpoena in Kansas City, Mo., to take her deposition in the case under R. S. 60-2821. She was sworn and answered many questions, which testimony was transcribed by the stenographer and filed as a deposition in the case, but was not introduced or read in evidence by either party, but on cross-examination of the plaintiff during the trial she was asked certain impeaching questions as to her having given certain answers to certain questions asked her in this earlier examination. She answered most of those questions by saying, “I don’t remember.” As to the question of greatest importance here, her answer was—
“I don’t remember — I don’t remember answering that way, no — I don't remember that question.”
Two preliminary features contained in the objection of the appellee, which may have been considered by the trial court as serious, are that her answers were not in the negative and therefore could not be a basis for impeachment, and that the defendant had made the plaintiff his own witness and therefore he could not impeach his own witness. Neither of these objections should have been sustained. In a very early decision, after stating the effect of an answer “yes” in the previous examination and an answer “no,” it further states—
“If he says he does not recollect, then you may give evidence on the other side, to prove that he did say what is imputed to him; and to that extent, the force of his testimony is weakened. If the rule were not so, you could never contradict a witness who said he could not remember.” (Lewis v. State, 4 Kan. 296, 310.)
The taking of the deposition of a witness is not the-test which determines whose witness he is. It is the using of the deposition. „In this case neither party used the deposition, but she, the plaintiff, became a witness on the trial on her own behalf.
“If A had read the deposition, in whole or in part, he would clearly have made the witness his own, and B’s subsequent use of it would not prevent B from impeaching the deponent. But the difficulty is, where A, the taker, has made no use of the depositions, that he can hardly be said to have made the witness his own.” (2 Wigmore on Evidence, 2d ed., 285. See, also, Johnson v. Marriage, 74 Kan. 208, 86 Pac. 461.)
Another feature contained in the objection of the plaintiff to this impeaching testimony offered by the defendant from the shorthand notes of the stenographer taking her testimony was that the evidence offered was not in fact impeaching, not being contradictory of or inconsistent with her evidence during the trial. She had testified on the trial that the injury occurred on September 6 or possibly September 7, 1926. The court sustained the objection of the plaintiff to the following impeaching question asked the stenographer by the defendant:
“State to the jury whether or not the following question was asked and the following answer given by Mrs. Hancock: ‘When did the accident involved in that case happen?’ Answer: ‘Well, I don’t remember just exactly what the date was. I would have to look at the information my attorney has, Mr. Smithson.’ ”
Does this answer, said to have been given by her at that time, contradict the testimony given by her on the trial as to the date of the accident? We think not. Neither can it be said even to be inconsistent with her present answer as to date. The most that could be said concerning the difference between them would be that her memory should have been better as to the exact time of the occurrence at the earlier occasion rather than the later, but as against that, she may have looked at the information in the hands of her attorney before taking the witness stand at the time of the trial and thus revived her recollection and ability to give a definite date which her earlier answer indicates she could have done by looking up the information.
“In the present mode of impeachment, there must of course be a real inconsistency between the two assertions of the witness. The purpose is to induce the tribunal to discard the one statement because the witness has also made another statement which cannot at the same time be true. Thus, it is not a mere difference of statement that suffices; nor yet is an absolute oppositeness essential; it is an inconsistency that is required.” (2 Wigmore on Evidence, 2d ed., 491.)
In the case of State v. McGaffin, 36 Kan. 315, 13 Pac. 560, it was said that the proper and effective mode of impeachment was—
“. . . by showing that he had made statements out of court and soon after the occurrence contradictory to those made by him on the witness stand.” (p. 321. See, also, State v. Swartz, 87 Kan. 852, 126 Pac. 1091.)
On this account we think there was no error in sustaining the objection to this impeaching testimony.
Other impeaching testimony was offered by the same witness, but it concerned matters as to where she was intending to go in the taxicab and calling a doctor after the accident, about which matters there is no particular conflict and they contribute very little, if anything, toward the vital question of the date of the accident.
Appellant complains of the refusal of the trial court to return the jury for more specific answers to the second and fifth special questions.
It is said wide range is allowed in the matter of proof to meet an allegation of an occurrence on or about a date named, and that a very narrow range here of about three weeks would effect a bar of the statute of limitations. This reasoning would be strong if one set of dates would extend over to or connect with the other. In this case the conflicting evidence centers around either one or the other of two very definite times, either September 6 or 7, or August 10. There is no evidence as to any intermediate dates. One witness said it was in August, without giving any more definite date. Under this particular situation as to all the evidence on dates, the indefinite nature of the answer to the special question, that the occurrence was on or about September 6, cannot possibly extend to August 10, but at the most might include under the testimony September 7, which would not reach the question of the statute of limitations.
The other indefinite answer criticized is where the jury found the negligence of the defendant to be “careless driving.” The allegations of the petition as to negligence were:
. . driving and operating said taxicab at a rate of speed of about thirty-five or forty miles per hour, and negligently and carelessly failed to look ahead and observe the condition of the highway, and said defendant failed and neglected to have said taxicab under control so that it could be stopped by brakes or otherwise.”
It was also stated that the railroad crossing at which the accident was alleged to have occurred was maintained at a grade above the grade of the highway. The negligence under such allegations could consist of too great a speed at such a crossing, failure to look ahead and observe the condition of the highway at the crossing and to have the taxicab under control by use of brakes or otherwise, all of which is summed up in the expression “careless driving.” The answer, of course, should properly have named one or more of the items above enumerated as alleged, if supported by the evidence, but by applying to these two words their everyday significance they convey to us a plain and unmistakable intention to embody the elements of speed in driving without looking ahead to observe the dangers. There was some evidence to sustain these allegations, and we think it was not prejudicial error to refuse to send the jury back for a more definite and specific answer to this question.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action brought to replevy a tractor and combine under a chattle mortgage.
The petition alleged that the defendants executed and delivered to Bird J. Patterson two promissory notes, each in the amount of $930, maturing August 1, 1930, and August 1, 1931, respectively, bearing interest at eight per cent per annum; that the notes were secured by a chattel mortgage on a tractor and combine fully described in the mortgage; that plaintiff purchased the notes and mortgage from Patterson for value, without notice and before maturity, and was the owner and holder thereof. The defendants answered, admitting the execution of the notes and mortgage, and alleged that the notes and mortgage were executed and delivered to Patterson for the purchase price of a tractor and combine; that Patterson orally represented and warranted the machines to be well made and of good material, capable of doing as good work as any other machine of the same size or capacity, and the defendants, relying on such representations and warranties, executed the notes. It was further alleged that the tractor was not as it was warranted, but was wholly worthless; that it could not be made to work and was not suitable for the purpose for which it was constructed and sold.
The evidence of the plaintiff was to the effect that the notes and mortgage were purchased from Patterson on March 22, 1930; that he was given credit on his account with the plaintiff for the face of the notes; that on August 30, 1930, the defendants paid $500 on the notes; that demand had been made for the machinery described in the mortgage and it had been refused, and that the machinery in question was purchased from Patterson under a written contract which was signed by the defendants as purchaser and by Patterson as the dealer. The contract of purchase contained, among other things, the following:
“The machinery herein described, if new, is warranted to be made of good material, and if properly used and operated, will perform the work for which it is intended as well as, or better than any other make of machinery of the same size working under the same condition and on the same job. The buyer shall not be entitled to rely upon any breach of the above warranty, or to rescind this contract, unless within five (5) days from the first use thereof, for any purpose, the buyer shall immediately have given written notice by registered letter to Oliver Farm Equipment Sales Company at its branch office nearest the buyer’s residence, or at 400 West Madison street, Chicago, 111., stating wherein such machinery fails to fill such warranty. Reasonable time after such notice shall be allowed such company to get to the machinery and remedy the defect, if any, unless it be of such nature that remedy can be suggested by letter, the buyer to render cooperation and friendly assistance. If after such notice and opportunity, as above provided, the machinery cannot be made to fulfill such warranty, it shall be returned immediately by the buyer to the place from which received, such company having the option to furnish other machinery which shall fulfill such warranty, or to return to the buyer the portion of the purchase price applicable to the defective machinery.”
The evidence on the part of the defendants was to the effect that the tractor was delivered on April l,-1930; that upon trial it was found that it would not pull a plow in high; that on the second day the defendants notified Patterson, who came to examine the engine the next day, accompanied by Jack Britting. They concluded that the oil pump was faulty. A new pump was placed on the tractor, which was used for about a week, when the rods burned out a second time. Patterson was notified from time to time of the condition of the tractor and service men were sent out and worked on the machine, but with no satisfactory results. The tractor was returned to Patterson in August, 1930. It was the theory of the defendants that they had paid the full purchase price of the combine, and that the balance due on the notes was the purchase price of the tractor. There was evidence to the effect that the warranty contained in the written order was the only agreement between Patterson and the defendants. The jury returned a verdict in favor of the defendants, and answered special questions as follows:
“1. When did the plaintiff acquire the title to said notes and mortgage from Bird J. Patterson? A. Latter part of March, 1930.
“2. What consideration did the plaintiff give to Bird J. Patterson for said notes and mortgage? A. Credit on account to the full amount of notes.
“3. At the time the plaintiff acquired said notes and mortgage from said Bird J. Patterson, did the plaintiff know that said notes and mortgage had been procured from the defendants by any false representations concerning said tractor? A. Yes.
“4. At the time it acquired said notes and mortgage from Bird J. Patterson, did the plaintiff know that part of the consideration for said notes was the sale to the defendant J. W. Poulson of a tractor sold subject to a written warranty?
A. Yes.
“5. At the time it acquired said notes and mortgage from Bird J. Patterson, did the plaintiff know that there had been a breach of the warranty under which said tractor was sold? A. Yes.
“6. Did the plaintiff act in bad faith when it acquired title to said notes and mortgage from Bird J. Patterson? A. Yes.
“7. If you answer the foregoing question in the affirmative, then state fully what facts you find constitute such bad faith. A. They were aware that the oil lubricator on said tractor had caused trouble.
“10. About how many days did defendant J. W. Poulson use the said tractor? A. About forty days.
“11. Did defendant Poulson at any time give written notice by registered letter to Oliver Farm Equipment Sales Company at any place stating wherein said tractor failed to fill its warranty? A. No. But he notified the dealer from whom he purchased said tractor.
“12. If you answer the foregoing question in the affirmative, then give the date when said notice was given. -A. He notified the dealer from whom purchase was made, the third day after using said tractor.
“13. Do you find that the said tractor was defective? A. Yes.
“14. If you answer the foregoing question in the affirmative, then state what defect or defects existed in said tractor. A. Defective oil pump and crank shaft out of line.
“IS. If you answer question No. 13 in the affirmative, then state whether such defects were serviced by or at the request of Bird J. Patterson, and said tractor left operating in a satisfactory manner. A. Tractor was serviced but failed to work satisfactorily afterwards.
“19. Did the tractor purchased by the defendant J. W. Poulson fail to fill the conditions of the printed warranty copied in instruction No. 4? A. Yes.
“20. If you answer the foregoing question in the affirmative, then state in what particulars said tractor failed to comply with said warranty. A. Defective oil pump and crank shaft out of line.
“21. If you answer question 19 in the affirmative, then state whether or not Bird J. Patterson, or the plaintiff, ever put said tractor into such condition as to make it comply with the terms of said warranty. A. No.
“24. About when did the defendant J. W. Poulson return said tractor to the place where he received same? A. In the latter part of August, 1930.”
The court rendered judgment in accordance with the general verdict, from which the plaintiff appeals.
It is the contention of the appellant that under the written contract of purchase and the evidence and findings of the jury the appellees could not set up the defense of breach of warranty for the reason that the appellees failed to comply with the conditions of the warranty in that written notice was not served on the appellant in this case. The written order was directed to and signed by Patterson. It is clear that the parties used a form of order prepared and used by the appellant, although the contract was between Patterson and the appellees. The court instructed the jury that since the order was signed by the appellees and Patterson and the parties acted pursuant to the terms of the order, that it must be deemed a binding contract between them. Appellant does not question the correctness of this instruction but contends that since the order expressly provided that written notice be given to the appellant within five days from the first use of the machine such written notice could not be waived by Patterson. The argument of the appellant is on the theory that the contract was between the appellant and appellees, and that Patterson acted as appellant’s agent. The facts discredit the theory. The appellant alleged in its petition that it was the owner of the notes and mortgage by purchase for value, without notice and before maturity. This, in effect, was a denial of any knowledge of or obligation under the written warranty. Appellant cannot now contend that Patterson acted as its agent, or that the contract was for its benefit. Patterson was the principal. He had the right to waive any condition contained in the warranty. He was notified within the time provided in the warranty. He acted on the notice and continued to so act until it was found that the tractor could not be made to comply with the warranty, and it was returned to him by the appellees. He must be held to have waived the written notice. (Oliver Farm Equipment Sales Co. v. Patch, 134 Kan. 314, 5 P. 2d 795.) The evidence fairly shows, and the jury found, that the tractor did not meet the conditions of the warranty.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment affirming an award of compensation to a workman who suffered an industrial accident. The main defense was the workman’s failure to make a written demand on his employer for compensation within ninety days as the statute requires.
It appears that on November 30, 1929, while unloading a railway tank car of gasoline for his employer, Bert McCullough, plaintiff, fell off the car. He continued to work until December 18,1929, when he became ill and was confined to his home for ten days. On December 28, 1929, he was taken to a hospital for an operation. He remained in the hospital for about three weeks, after which he remained at home until April 2, 1930, when he returned to work.
On January 27, 1931, nearly fourteen months after his injury, he filed with the commission a claim for compensation, stating the circumstances of the accident and that he had thereby sustained a ruptured intestine.
The commission set the claim down for hearing. The employer and the insurance carrier objected on the ground that the claimant had not served upon the employer the statutory written demand for compensation within ninety days after the accident.
The objection was overruled and the hearing proceeded. The commissioner found that because of certain matters testified to (to be noticed later) “the employer waived formal written claim for compensation to be served upon himself.” Elsewhere the commissioner’s report reads:
“It is further found from the evidence that written claim for compensation within ninety days after the accident was made and served in sufficient con formity with section. 20 of the workmen’s compensation act. Also that respondent by his acts and conduct waived written notice of the accident and waived formal written claim for compensation.”
An award was made; and on appeal to the district court the award was affirmed and judgment entered accordingly.
The respondent and insurance carrier bring the case here for our limited review, contending (first) that there was no substantial evidence to support the finding of the commissioner that a written claim for compensation had been made and served on the employer within ninety days in conformity with section 20 of the compensation act; and (second) that nothing in fact or in law apparent on the record disclosed a waiver of the timely written demand which the statute prescribes as a prerequisite to the maintenance of proceedings to obtain a compensation award for industrial injury. It seems necessary to reprint the pertinent provision of the statute once more:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within ninety (90) days after the accident, . . .” (R. S. 1931 Supp. 44-520a.)
It is a familiar rule of appellate review, in workmen’s compensation cases as in most other appeals, that where there is any substantial evidence to support the findings of fact by the tribunal authorized to make them; they will be accepted as true by this court. Our function is merely to examine the record and decide whether there was such evidence upon which the findings of fact could be based. But whether there is such evidence is a question of law which this court’s duty will not permit it to evade, no matter how much we may regret to have our dockets cluttered with this class of cases — a class which the reformers of two decades ago confidently hoped would be fairly and competently handled by a statutory board and that the courts would eventually be relieved of them altogether.
In this case there was no evidence whatever that the claimant made a Written demand on his employer for compensation within ninety days, or at any other time, until the filing of this proceeding more than a year after his accident. Indeed, the claimant’s own testimony which the commissioner incorporated literally in his report was as follows:
“Q. You didn’t file any claim within ninety days from the date of your accident? A. No, sir.
“Q. Did you ever get any workmen’s compensation? A. No, sir.
“Q. Did anyone ever promise to pay your hospital and doctor’s bill? A. No, sir.”
There was testimony that while the claimant was in the hospital his employer called on him and they talked about compensation:
“Q. Did you ask him for compensation? A. I asked him if there was any compensation on that and he said ‘yes.’ ”
The claimant also testified that he saw his employer again, on February 3, 1931, and they had another conversation:
“Q. Did you ask him for compensation at that time? A. Yes, sir.
“Q. What did you say to himi? A. I asked him what to do about it and he said he would go to Case’s office and fill out a claim.”
Claimant testified that he and his employer went to the office of Case, who was local agent of the insurance carrier, and “filed a claim” with Case. Case prepared the claim and the workman testified that he thought he signed it. But whatever the paper was the workman admitted that he did not read it, he was “pretty sure he signed it” and that Case kept it.
“Q. So would- you say that Mr. Case’s recollection of what it was and whether or not you signed it, would be correct? A. Yes, sir.”
Case testified that what occurred on the occasion testified to by claimant was that claimant and his employer, McCullough, came to his office, and that McCullough made out a report on a form provided by the compensation commission, that the workman supplied the facts, and that the employer signed it and the claimant did not. One copy of the report was forwarded to the commission and the other to the insurance carrier at Kansas City. It was perfectly apparent that the incident had to do with the employer’s duty to make a report of the industrial accident to the compensation commission. (R. S. 1931 Supp. 44-557.) The preparation of that report, which the employer is bound under penalty to make under the statute within seven days after he has knowledge of it, cannot be distorted to mean the written demand for compensation which the workman must make within ninety days as a condition precedent to the maintenance of proceedings to procure an award of compensation. If the employer violates his duty to report the accident to the commission let him be prosecuted therefor. If the employer tricked the workman into a belief that a paper the workman thinks he signed was a written demand for compensation when it was something else, this court will keep an open mind on the question whether the workman may have an action of damages for deceit against the employer. But we will not give judicial sanction to the sort of verbal legerdemain which the commission and the trial court were content in this case to regard as compliance with the statutory prerequisite of a timely written demand for compensation.
In view of the foregoing, the question of waiver of the written demand needs little discussion. This court is grateful to the legislature fo.r the enactment of section 20 of the present statute, which emancipated the bench and bar, and the compensation commission as well, from the mess we were in touching the requirements of notice and demand and how they might be waived where no prejudice was shown — not to speak of our more or less constant distrust that such waivers were largely established by interested and questionable testimony. This court is not disposed to open another such Pandora’s box of trouble by conceding that the plain letter of the statute can be circumvented by oral testimony to show a waiver of its requirement. That requirement is a very simple one. Any workman, however limited his learning, can conforms to it. Almost any sort of writing which can be fairly interpreted as a wiritten demand for compensation (Weaver v. Shanklin Walnut Co., 131 Kan. 771, 293 Pac. 950; Eckl v. Sinclair Refining Co., 133 Kan. 285, 299 Pac. 588) or which the employer himself has so interpreted (Willis v. Skelly Oil Co., ante, p. 543) will satisfy the statute, but a waiver based on disputable oral testimony will not do so. To that effect are our repeated decisions: Long v. Watts, 129 Kan. 489, 283 Pac. 654; Walz v. Missouri Pac. Rld. Co., 130 Kan. 203, 205, 285 Pac. 595; Skinner v. Dunn Mercantile Co., 132 Kan. 559, 296 Pac. 341; Schweiger v. Sheridan Coal Co., 132 Kan. 798, 297 Pac. 688; Sayers v. Colgate-Palmolive-Peet Co., 134 Kan. 872, 8 P. 2d 383.
The judgment of the district court is reversed and the cause remanded with instructions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by the widow of J. A. Acock, deceased, for his wrongful death, alleged to have been caused by the negligence of defendants. The jury answered special questions and returned a verdict for plaintiff, on which judgment was rendered. Defendants have appealed.
The pertinent facts may be stated as follows: The Kansas City, Kaw Valley & Western Railway Company, hereinafter called the railway company, operates an interurban electric railway from Lawrence to Kansas City on the north side of the Kansas river and north of the main line of the Union Pacific Railway Company. It has poles erected along its track with wires stretched across or arms extending over the track from which is suspended the wire which carries the electric current which operates its cars. This wire carries a direct current of 650 volts. On its poles along the north side of its track it has a telephone wire. The telephone is used by the dispatcher in giving orders to conductors and motormen for the movement of cars. The poles have cross arms on which the telephone wires are placed on ordinary glass insulators. At various places along the line it has telephone booths, from which those in charge of the train call the dispatcher for orders. One of these is located at a point on the line called City Park. The telephone booth there is a small square frame building with cinders for a floor, on which at the time in question a board was laid. On the inside of the booth at one side was a board shelf, perhaps eighteen inches wide, on which an ordinary desk telephone set was placed. The box for the telephone was above this board on the wall. The current used for the telephone was from dry-cell batteries and produced a low voltage of a few ohms.
The Kansas City Power and Light Company, hereinafter called the light company, engaged in the manufacture, transmission and sale of electric energy, had a station called “Substation No. 7,” just north of the Kansas river, into which wires entered carrying 33,000 volts alternating current. By a transformer at this station the lines going out of it to the north carried 6,600 volts alternating current. These lines crossed the lines of the railway company and served a near-by territory to the north of about fourteen square miles, in which there were more than eleven hundred subscribers for electricity. At the place where its wires crossed the lines of the railway company, lines were attached to it extending east so as to carry electric current to what is known as the Spitcaufsky crusher. This line had been built by the railway company, but was leased and operated by the light company. It is what is spoken of as a three-way circuit; that is, it consisted of three wires. These were attached to insulators, on what is spoken of as a wishbone attached to the poles. As constructed, the lowest one of these wires was about four feet above the telephone wires on the cross arms of the same poles. The lines to the stone crusher carried an alternating current of 6,600 volts.
Directly north of the railway company’s right of way the J. A. Tobin Construction Company, hereinafter called the construction company, was constructing a county road, under a contract for that purpose, through what is known as the Muncie Bluffs. The work required removing a large amount of stone, shale and dirt. The place where the construction company was then operating was inaccessible to vehicular traffic. The construction company was using a steam shovel to make the excavation through the bluffs for the highway, and in order to make the stone and shale easier to handle by the steam shovel it blasted the stone and shale with charges of dynamite. On June 27, 1929, the employees of the construction company prepared a blast by drilling holes about sixteen feet into the bank, enlarging the bottom of them with a shot of one stick of dynamite, then placing in- each hole twelve sticks of dynamite. Three of these holes were so prepared. It was arranged to fire this blast about the time the men quit work for the evening, and it was fired about six o’clock — perhaps a few minutes later. The result was that stone an'd shale were thrown with such force and quantity as partially to destroy the steam shovel and to throw rocks and shale across the track of the railway company, breaking twelve of the sixteen telegraph wires along the right of way of the Unión Pacific. Rock and shale were thrown against the poles of the railway company which carried its wires, including the telephone wire, and broke one of the insulators supporting the wire used by the light company, letting it fall until it came in contact with the telephone wire of the railway company. The employees of the construction company did not notify anyone connected with the railway company or with the light company of the damaging results of this blast,
Charles Malott was employed by the light company as a trouble man, whose duties were to take care of all trouble that might occur in the district about fourteen miles square served by the light company from its No. 7 substation. Soon after six o’clock the electric current went off in this district. He called either the service department or the trouble department of the light company from Welborn, which was in his district, told of the trouble, and that he was going to patrol the line. He went about as directly as he could to substation No. 7, traveling by automobile, in which he had equipment to make temporary repairs. On his way to substation No. 7 he saw nothing which would cause any trouble. In addition to the transformer at substation No. 7 there were automatic switches which worked by the operation of electricity. Trouble anywhere along the line served from that station would cause the switches to relay; that is, the switches would kick out, or turn off the power. When this was done the switch automatically replaced itself, connecting the power. If the trouble still existed it kicked out again, replaced itself and kicked out again, if the trouble still existed, but after the third time it would stay out until some one pushed it or forced it back. Malott made no other investigation of the line than along the route he traveled. When he got to substation No. 7 he ■found a fuse had been burned out and that the automatic switch was out and the power turned off. He replaced the fuse, then telephoned to the service department, or trouble department, and reported that he found the switch out. He was told to put it back in. He did so. This was before seven o’clock. He waited twenty or thirty minutes to see whether it automatically kicked out again. It did not do so in that time and he went home and quit work for the day.
J. A. Acock had been employed by the railway company as a motorman about nine years. About the first half of that time he had been on what was called a “line car,” that is, a car used to transport men and equipment to repair the line. He did not do the line work himself, but sometimes handed tools and repair parts to the workmen. He was familiar with the structure of the line and with the voltage of the electric currents carried by the wires. For about four years he had been motorman on passenger cars of the railway company and was serving in that capacity on June 27. A Mr. Kusler was the conductor on the car. They reached the City Park station about seven o’clock. Their time to leave there was 7:03. Both Acock and Kusler got off of the car and went into the booth to telephone the dispatcher for orders, it being their joint duty to receive such orders. Kusler went into the booth first and put the switch on the telephone. That was done by reaching up and putting the switch in with the hand. There is an insulated handle on the switch. He then stepped over to the board bench on which the telephone was sitting. That telephone had a cord on it which rested on the bench. He then took a book which he found there and was registering when he received a shock. He leaned his arm too close to the cord and got a shock through his coat sleeve. It gave him a backward shock, but did not throw him back. After that he felt a slight vibration on the board on which the telephone was resting. It was “kind of quivering.” At that time Acock was just outside the door, and Kusler said to him, “Al, feel of this board.” He remarked, “That telephone is hotter than hell, and I’m not going to call up the operator.” Acock put his hand on the board to feel the vibration, and then reached for the telephone. Kusler had stepped over toward the door of the booth. As Acock reached for the telephone he fell backward into the booth and said, “Ah.” Kusler went to pick him up. Acock said: “That is six hundred and sixty or six hundred and sixty-six, Lige.” “Lige” was Kusler’s nickname. Acock died almost instantly.
Kusler advised the railway company officials of Acock’s death. An investigation that night was made of the line near where the blast had been fired by the construction company. The damages previously noted here were discovered. Representatives of the light company also made an investigation, found the broken insulator which had let its line carrying a high current fall so as to come in contact with the telephone wire, put a new insulator on, and replaced the wire.
It seems clear from this recital, and in fact is substantially conceded in this court, that the blast fired by the construction company threw rock which broke the insulator to which was attached the wire of the light company carrying an alternating current of 6,600 volts, causing the wire to fall so that it came in contact with the telephone wire of the railway company, by which this current was carried into the telephone booth and received by Acock when he undertook to use the telephone, and resulted in his death.
The railway company was not made a party defendant to this action. The light company, by an amendment to its answer, alleged in substance that the railway company and J. A. Acock at the time of his death were operating under the workmen’s compensation act of this state; that neither Acock nor his personal representative, within ninety days from the date of his death, filed with the railway company a written election that a remedy against an allegedly negligent third party would be claimed, and that by reason thereof an election was effectually made to accept compensation. By reason of this it is argued that under the statute (R. S. 1931 Supp. 44-504) this action could not be maintained by plaintiff. The point is not well taken. In Jolley v. United Power & Light Corp., 131 Kan. 102, 289 Pac. 962, where a similar question was raised, it was held that the statute is intended for the benefit and guidance of the employer and employee. In the opinion it was said:
“The statute is apparently intended to make a definite disposition of a cause of action against a third party as between the employer and employee, but it does not go so far as to attempt to make this disposition irrevocable. . . . As pointed out in the Moeser case, supra, it is no concern of the third party what the employer or employee does with reference to a cause of action against the third party. No matter what they may do, the liability of the third party cannot be increased nor diminished by any action of theirs. The third party is in no way prejudiced by the failure to observe the provisions of the statute.” (p. 107.)
See, also, Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784, and cases collected in the annotations 37 A. L. R. 840 and 67 A. L. R. 254. The answer also alleged that plaintiff had claimed and received compensation from the railway company under the compensation act. There was no proof on this point and it may be disregarded.
It is argued that the railway company was negligent in not having a protecting device on its telephone wire at the booth at City Park, and in other respects. Even if it were conceded that the railway company was a joint tortfeasor with defendants, the light company and the construction company, plaintiff might, at her election, sue any one or more of the joint tortfeasors without making all of them parties defendant (Wholesale Grocery Co. v. Kansas City et at., 115 Kan. 589, 224 Pac. 47), hence there is nothing in this point of which appellants can complain.
Appellants argue that J. A. Acock was guilty of contributory negligence as a matter of law. It is argued that he had been an employee of the railway company for many years; that he was familiar with the construction of the electric lines and wires along the railway right of way; that he knew the danger of a heavy charge of electricity, and even when his attention was called by the conductor Kusler to the fact that the telephone was hot, which meant that it was charged with a heavy current of electricity, and even after Kusler had declared that’he would not use the telephone to call the dispatcher, Acock stepped forward and undertook to use the telephone and received the shock which caused his death. In this connection it is pointed out that the evidence discloses it was possible for Acock and Kusler to proceed with their car without talking to the dispatcher by conforming to the time card and by a system of signals, hence that it was not absolutely essential for them to call the dispatcher and get orders. We regard the question of the contributory negligence of Acock as being a fair question to submit to the jury. The evidence disclosed that while it did not happen every day it was not at all unusual for the conductor and motorman, when they went to use the telephone in one of the booths of the railway company, to find that it was carrying a charge of electricity much in excess of that produced by the batteries designed for the telephone wire. In such instances this probably came from the direct current of 650 volts used by the railway company as power for its cars. There was evidence that this current would not injure a man using the telephone standing on the floor of dry cinders, or on a board placed on such floor. Frequently they would find a telephone, or the board upon which it rested, so charged, but would go ahead and use the telephone without any ill consequences. In such cases they referred to the telephone or booth as being “hot,” or as being “hotter than hell,” which was a common byword or expression. The fact that one of them would decline to call up over the telephone because of the fact that it was hot, and the other one go ahead and make the call without injurious consequences, was not unusual. On this point the jury, in answer to a special question, found that Kusler made the statement attributed to him, but “not as -a warning to the extent of the danger.” Defendants moved to set aside this answer as not being supported by the evidence, but in view of the evidence on that point the court overruled the motion. In view of that fact we cannot hold, as a matter of law, that Kusler’s remark-with respect to the telephone being hot was either intended by him or understood by Acock as a warning of danger. Answering another special question, the jury found Acock was exercising ordinary care and prudence when he reached for the telephone at the time and place in question. We cannot say, as a matter of law, that this answer was erroneous.
On behalf of the appellant, the light company, it is contended that the evidence did not show it to be negligent, and that the court erred in overruling a peremptory instruction in its favor. In answer to a special question the jury found the negligence of the light company to be that it “made no attempt to find source of trouble before closing switch” at substation No. 7. It is argued that the light company, in closing this switch under the circumstances shown by the evidence, was in fact and in law using due care; that it had then received no notice or information as to the cause of the switch being thrown out, and the jury, in answer to a special question, specifically so found. It is argued that the switch was so constructed that it would not stay in if there were trouble on the line; that frequently trivial interferences with the line. caused the switch automatically to throw out; that when the switch is found to be out it is not practicable for a trouble man to go over all the lines of the light company served from the station — in this case about sixty miles of line spread throughout fourteen square miles of territory — to search for trouble which may be only temporary; that the common practice, when the switch is found out, is to put it in, and if trouble still exists it will automatically throw itself out; that any other plan would make such a burden upon the light company as to be unreasonable. But in this connection it must not be overlooked that the switch is so designed that it will throw itself out and in, automatically, as many as three times and then stay out if the trouble persists; that the light company's trouble man, Malott, when the lights first went out, telephoned to headquarters that he would patrol the line; that in fact he examined only a-small part of it. When he got to substation No. 7 he found fuses burned out, which he replaced; he found the switch out, which, from the nature of things, must have been out all of the time he was driving from Welborn to substation No. 7, tending to show serious trouble on the line. Unwilling then to take the risk of putting the switch in, he called headquarters and was told to put the switch in. Whether that was using due care or not depends upon many circumstances. He had stated that he would patrol the line. Possibly the one in charge at headquarters thought he had done so. The light company was bound to know that the trouble on the line was serious enough that the switch was automatically thrown out and in repeatedly until it stayed out for some time, hence that the trouble, whatever it was, was something more than a temporary trouble. It was bound to know the construction of its line over which it transmitted current, and to know that its line, when in place on the poles of the railway company, was but a few feet above the telephone wire; that a displacement of one of its wires from the insulator would cause it to drop so that it could connect with the telephone wire, a situation which the evidence shows could have been prevented at a nominal expense; that its heavy current of 6,600 volts might cause the telephone line to be burned in two at some places, as the evidence shows was done in this case, and might cause its current to pass on some lines other than its own, to the injury of some one. In view of this we are convinced that whether the connecting of this switch by the light company at the timé and under the circumstances shown by the evidence was negligence was a question for the jury, and, further, that there is evidence to support the findings of the jury on that point.
The light company complains of the court’s refusal to give instructions requested and of instructions given. We have examined all counsel have said on this point and find no substantial merit in the complaint. The instruction given did not, as contended by the light company, make it an insurer. It told the jury that the duty of the light company was to exercise care proportionate to the risk and dangers of its business; that, the degree of care required varies according to the circumstances of the particular case; that if in the use of electricity by the light company in the conduct of its business it was shown by the evidence to be a highly dangerous agency to life, unless exercised with great care, then to such extent a high degree of care in its supervision, management and use was required by the light company. This is the general, well-recognized rule of law and accords with the previous holdings of this court. [Lewis v. Street Railway Co., 101 Kan. 673, 168 Pac. 856; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312; Serviss v. Cloud, 121 Kan. 251, 253, 246 Pac. 509; Baker v. Kansas Power and Light Co., 127 Kan. 109, 113, 272 Pac. 101.)
The light company argues that even if it were negligent in closing the switch at substation No. 7 and sending the current over this line at the time and under the circumstances it did, such negligence was not the proximate cause of the death of Acock; that there was a separate, unrelated cause, namely, the negligence of the construction company in firing the blast as it did. The construction company contends that if it were negligent in the respects the jury found it to be, namely, in that the charge of dynamite was not properly placed for its size, and that it failed to report to parties concerned after it knew damage had been done, such negligence was not the proximate cause of the injury, and argues that there was a separate, intervening cause, namely, the pushing in of the switch and turning on of the current by the light company after it knew there was serious trouble on the line and without proper inspection of it. Under the evidence in this case these were not separate, intervening causes. Here both parties were negligent. While it is true that one succeeded the other in time, they are necessarily related and interwoven, and the death of Acock was the result of the concurrent negligence of both appellants.
In 1 Shearman and Redfield on Negligence (6th ed.), section 122, the applicable rule is thus stated:
“Concurrent, as distinguished from joint negligence, arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. That the negligence of another person than the defendant contributes, concurs or cooperates to produce the injury is of no consequence. Both are ordinarily liable. And unless the damage caused by each is clearly separable, permitting the distinct assignment of responsibility to each, each is liable for the entire damage. The degree of culpability is immaterial. And so when the injury is the result of the neglect to perform a common duty. Whether charged with joint or concurrent negligence all parties contributing to produce the injury by their responsible acts or omissions, may, at the option of plaintiff, be joined as defendants in the same action.”
See, also, the following cases and authorities cited therein: Luen gene v. Power Co., 86 Kan. 866, 122 Pac. 1032; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899; Leonard v. Cement Co., 91 Kan. 735,139 Pac. 478; Pinson v. Young, 100 Kan. 452, 455, 164 Pac. 1102; Gooch v. Gooch, 108 Kan. 416, 418, 195 Pac. 874; Swayzee v. City of Augusta, 113 Kan. 658, 666, 216 Pac. 265; Webb v. City of Chanute, 118 Kan. 505, 235 Pac. 838; Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 24, 245 Pac. 734; Lenfestey Broom Works v. Atchison, T. & S. F. Rly. Co., 123 Kan. 104, 107, 254 Pac. 343; Mosby v. Manhattan Oil Co., 52 F. 2d 364-366.
The construction company argues, as does the light company, that Acock was guilty of contributory negligence, and that plaintiff, because of the provisions of the compensation act (R. S. 1931 Supp. 44-504) could not maintain this action. But the construction company is in no better position to plead those matters than is the light company. What has been heretofore said on those questions is deemed sufficient.
It is argued that the special findings of the jury are inconsistent with each other, and that some of them are not supported by evidence. We have examined those questions and find them to be without substantial merit.
Finally it is argued by the light company that the amount of the verdict, $10,000, is excessive. At the time of Acock’s death he was forty-nine years of age. His life expectancy was 21.63 years according to the American experience table of mortality. He had been employed regularly for about nine years by the railway company. He was paid by the hour and 'received a check every two weeks. It was usually around $75, but at times was as much as $125. Plaintiff got his check, which was the sole means of her support. It is true there was not a close separation in the evidence of the amount of his wages necessary for his own support as distinct from that of the support of his wife and children. It is said the evidence did not disclose the condition of his health, but there is nothing in the evidence to indicate that his health was impaired, and his steady employment for nine years with the railway company previous to his death tends to show that it was good. The record will not justify us in saying that the amount of the verdict was not warranted.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In the operation of its train, the Atchison, Topeka & Santa Fe Railway Company struck and killed four cows owned by A. Q. Davis. This action was brought by Davis to recover the value of the cows, and he obtained a judgment for $250. The railway company appeals.
The railroad divides and runs east and west through the farm of the plaintiff. There is a public road running north and south near the residence and other buildings of the plaintiff. The cattle were pastured in a field south of the railroad and the residence and other improvements were north of the railroad. The cows had been milked about six o’clock in the morning of June 16, 1930, by mem bers of the plaintiff’s family and were then driven out on the public road towards the railroad with a view of placing them in the pasture south of the railroad crossing. It appears that two of his children went ahead of the cattle to look out for trains and assist in driving them over the railroad, and the plaintiff and two other members of his family were following them carrying the milk. There is testimony that no trains were seen or heard when the drive started, but about the time they reached the crossing those ahead of the cattle called back that a train was coming, when the plaintiff and some of the children made a quick effort to drive the cattle off the track and did succeed to an extent, but four of them were struck and killed. The principal negligence relied on was the failure of the defendant to sound the whistle for the public crossing as the statute requires. The jury, among other special findings, found that the defendant was negligent and the negligence consisted in not giving the statutory signal.
The defendant contends that the evidence fails to show that the whistle was not sounded for the crossing where the accident occurred. Upon that question there was a sharp conflict in the testimony.' The argument of defendant is .that the evidence of plaintiff that no signal was given was.negative in character ánd was the conclusion of the witness rather than a statement of fact, It: is said that the witnesses could not testify that the whistle was not sounded. All they could say was that they did not hear any whistlé, and that this was not evidence of the fact. It is true that ordinarily a witness who testifies that he saw of heard something is of greater value than the testimony-of another who simply says he did not see or hear an incident. (K. C., Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 7 Pac. 587; Weir v. Railways Co., 108 Kan. 610, 196 Pac. 442; Kindig v. Atchison, T. & S. F. Rly. Co., 133 Kan. 459, 1 P. 2d 75.) If all 'other things are equal, positive testimony preponderates over that which is strictly negative, but the trier of the facts should give consideration to the attending circumstances such as the opportunity and attention of the witnesses. What is deemed negative testimony, such as that a whistle was not sounded, is not without force and value if the witness had unimpaired hearing, was giving attention arid listening for a whistle at the time of an accident and testifies that none was sounded. In such a case the testimony .can hardly be regarded as negative in the sense that it is overborne ás á rriatter of law by testimony that it was sounded. • '
Now, the plaintiff’s witnesses were concerned about the safety of the cows and the possibility of trains running over the track at any time. Two of the children had been sent ahead to watch for a train and assist in getting the cows safely over the railroad, and the plaintiff and two of his boys followed behind them. With these circumstances in mind, plaintiff and others testified that no whistle was sounded eighty rods from the crossing, and if it had been they would have heard it and had an opportunity to head the cattle off the track and prevent the killing of them. His wife, who was in front of the house and near the railroad track, testified that she would have heard the whistle if it had been sounded, and that it was not done. A son of the plaintiff who was engaged in guiding and guarding the cows likewise testified that no whistle was sounded eighty rods from the crossing, and also that defendant did not whistle for another crossing half a mile away. Another member of the family who was attending the cattle testified that the whistle was not sounded for the crossing where the cattle were killed nor for the crossing east of that. As stated, the employees in charge of the train testified positively that the proper signal was given. In view of the circumstances it must be held that the evidence given in behalf of plaintiff was competent and sufficient on which to base a finding that no signal was given for that crossing. This court, in speaking of the relative value of positive and negative testimony in a case similar to this one, has said:
“The testimony of one who was in a position to hear, and who was giving special attention to the sounding of the whistle, that it was not sounded, while negative in form, is a positive statement of fact, and where the witnesses had equal opportunity to hear the whistle, and are equally credible, it is generally of as much value as the testimony of one who states that it was sounded.” (K. C., Ft. S. & G. Rld. Co. v. Lane, 33 Kan. 702, 706, 7 Pac. 587.)
In view of the circumstances related it cannot be held that plaintiff was barred from the recovery of damages by reason of contributory negligence.
Error is assigned on an instruction given by the court. Testimony had been admitted tending to show that the defendant had also failed to give a signal at another crossing farther away from the crossing where the cows were killed, and the court proceeded on the theory that such testimony was applicable to the case and gave the following instruction:
“Now if you should believe from the evidence that the defendant’s agents, servants, and employees in operating said engine which is alleged to have struck plaintiff’s cattle and killed them, failed to sound the whistle on said locomotive at either or both of said crossings, and that because of said failure to sound the whistle, plaintiff’s cattle were killed, then, and in that event, your verdict should be for the plaintiff.”
The omission to give the statutory signals at other crossings farther away than the one where the accident occurred had no place in this lawsuit and constituted material error. The negligence charged and found by the jury was the violation of the statute which provided that a steam whistle shall be attached to each locomotive engine and shall be sounded four times, at least eighty rods from the place where the railroad crosses a public road or street. (R. S. 1931 Supp. 66-2,120.) The negligence relied on is the failure to give the statutory signal for the crossing where the accident occurred, and the railroad company is only liable for damages sustained by reason of that neglect. The fact that the company may have been negligent at other places or of another kind, was wholly irrelevant. The statutory signal is required as a warning for those upon or approaching the public road, at least eighty rods away, and a failure to whistle at other distant crossings cannot be attributed to the railroad company as neglect in causing an injury at an immediate crossing for' which the signal was required. That view was declared in Mo. Pac. Rly. Co. v. Pierce, 33 Kan. 61, 5 Pac. 378, where it was said:
“The purpose of the legislature in requiring this warning to be given before reaching a highway, is manifestly to afford protection to persons or property that may be upon, or passing over such highway, and therefore the omission of the company to comply with this statutory requirement cannot be held to be negligence as to any injury done except at the crossing of the particular highway for which the whistle is required to be sounded.” (p. 64.)
It is manifest that the instruction was erroneous and extended the liability for a failure to give signals beyond that required by the statute.
For this reason the judgment must be reversed and the cause remanded for a new trial. It is so ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in the nature of specific performance to establish and enforce an alleged oral contract between plaintiffs and one Margaret Schindler, by which plaintiffs were to have her property at her death. The trial court made findings of fact and rendered judgment for plaintiffs, and defendants have appealed.
Margaret Schindler, for many years a resident of the city of Wichita, died March 15, 1930, when eighty-five years of age. She left no will and had no known heirs. At the time of her death she was the owner of real and personal property of the approximate value of $75,000 above liabilities. Normally, property of one who dies intestate and without heirs passes to the state (21 C. J. 848), the procedure for which and its destination are provided by our statutes (R. S. 22-933 to 22-935 and 22-1201 to 22-1206). Plaintiffs contend that the property does not so pass in this instance because of the alleged contract upon which they rely.
Two days after the death of Mrs. Schindler the First Trust Company of Wichita was appointed administrator of. her estate, in which capacity it has continued to act. The attorney-general was advised of the situation and he designated a representative to give attention to the matter and to preserve, as much as' possible, the estate for the benefit of the state. Many persons presented claims for a portion or all of the estate, most of which have been determined to be not well founded, although we are advised claims have been allowed, including expenses of administration to the amount of about $19,300. Plaintiffs made no effort to oppose any of these claims or to conserve the estate, and took no action in probate court.
On March 16,1931, plaintiffs filed this action in the district court, setting forth their claims in two causes of action.- The first set up the purported contract and alleged that Mrs. Schindler had agreed to execute a will leaving her property to plaintiffs after making several minor bequests; that she failed to do so, and claiming the entire property. We shall later discuss this cause of action more in detail. The second cause of action made the first a part of it and further alleged plaintiffs performed services called for by such contract and that the same were of the reasonable value of more than $15,000. The prayer was that the plaintiffs be decreed to be the owners- of all the property belonging to Mrs. Schindler at the time of her death, and, further, that in the event the court for any reason is unable specifically to perform the contract, that plaintiffs have judgment for the sum of $15,000. Motions to make the petition more definite and certain and to strike out portions thereof and demurrers thereto were overruled. The answer of the First Trust Company contained a general denial, pleaded the three-year statute of limitations, alleged that no definite demand had ever been made against the administrator within one year from the granting of letters of administration, raised the jurisdiction of the district court with respect to the claim of plaintiffs, and with respect to the oral contract specifically pleaded the statute of frauds. The answer of the state of Kansas on the relation of the attorney-general contained a general denial, pleaded the statute of frauds, alleged the claims of plaintiff are not enforceable in equity under the facts alleged for the reason that the services said to have been performed may be measured and compensated in money and plaintiffs therefore have an adequate remedy at law; alleged the contract relied upon is too indefinite to entitle plaintiffs to recover, either at law or in equity; that their allegations show a lack of performance on their part; that the claim of plaintiffs was inequitable in that the estate of Mrs. Schindler was of a value out of all proportion to the value of the services which the alleged contract contemplated or which were alleged to have been performed; that the two causes of action alleged are inconsistent, the second disclosing that plaintiff’s services were compensable in money.; pleaded the three-year statute of limitations, and the lack'of’jurisdiction of the court to establish the claim as one for services. Plaintiffs’ reply was a general denial. At the beginning of the trial motions that plaintiffs be required to elect whether they expected to recover for specific performance of their alleged parol contract, or for compensation of services, were denied. The trial court made findings of fact and conclusions of law as follows:
“Findings of Fact.
“1. Margaret Schindler, a widow eighty-five years of age, died on or about March 15, 1930, leaving no known heirs at law. At the time of her death she owned real and personal property of the approximate value of $75,000 above liabilities.
“2. The plaintiffs, Carl Woltz and Louise Woltz, became acquainted with Margaret Schindler some time prior to 1920. Approximately ten years before Margaret Schindler died she made an oral agreement with the plaintiffs whereby she agreed to leave her property to them in consideration of their taking care of her for the rest of her life. The evidence does not disclose just what it was intended should be done by plaintiffs to perform their part of the agreement, but it does show that from the time their contract was made the conduct of the plaintiffs toward Mrs. Schindler was that of dutiful children towards a parent. Mrs. Schindler referred to them as her “kids” and as her children, and would frequently go to their home, where she would stay for indefinite periods. On some occasions, when she was ill, the plaintiffs cared for her in their own home. The plaintiff, Louise Woltz, on many occasions prepared certain dishes that she knew Mrs. Schindler particularly relished and took them to Mrs. Schindler’s home. She also did sewing and fancy needlework for Mrs. Schindler, for which it does not appear that compensation was at the time asked or received..
“3. Mrs. Schindler had a comfortable home of her own, where she spent the greater part of her time. She employed domestic help, other than the plaintiffs, for which service she paid. The plaintiff, Carl Woltz, who is a carpenter by trade, occasionally made some minor repairs about the Schindler home, for which it does not appear he received any compensation.
“4. Mrs. Schindler, on several occasions, stated to others that the plaintiffs had agreed to take care of her and that they were doing a pretty good job of it, from which fact the court concludes that the contract between the parties was performed by the plaintiffs to the satisfaction of Margaret S'chindler.
“Conclusions Of Law.
“1. The value of plaintiffs’ services cannot be adequately measured in money, and under the facts as found it is not inequitable to require performance of the contract.
“2. The plaintiffs are entitled to have their contract with Margaret Schindler specifically enforced.”
While appellants argue various points with much detail, broadly speaking their principal contentions may be thus stated: That the purported contract on which plaintiffs relied, as alleged in their petition, was insufficient to establish their right to recover in equity; that the contract alleged was not proved; that the attempt to prove it tended to establish a contract which differed materially from the one alleged, but that the proof of the contract was insufficient on which to predicate the relief sought, and that the purported contract, as found by the court, was insufficient to justify the relief granted. This requires that we analyze more carefully the allegations of the petition, the evidence, and the findings of the court. Summarizing the petition, it alleges that Margaret Schindler was born in Germany and came to this country when about seven years of age; that she later married Oscar Schindler, who died intestate in 1898; that at the time of her death she was the owner of certain real property, which was described, and also owned personal property consisting of cash, stock, bonds, and other chattels; that plaintiffs, who were of German descent, became acquainted with her about 1908; that they and Mrs. Schindler became warm friends; she visited plaintiffs frequently, sometimes staying several days, and referred to them as her children; “that in August, 1921, said Margaret Schindler came to the home of plaintiffs and told them that they would have to take care of her the rest of her days and that they would be well paid for whatever they did for her, and that she stated to plaintiffs and then and thereafter orally agreed that she would execute her will, and after making several minor bequests, would give, bequeath and devise to plaintiffs the residue of her property”; that plaintiffs thereafter fixed a room in their home for the use of Mrs. Schindler and maintained the same for her, at her request, and she spent quite a little of her time there, taking her meals with plaintiffs and making plaintiffs’ home her home. This extended over a period of about three years, beginning in 1926; that plaintiffs, at her request, cared for her when she was ill; that from 1926 to 1929 Mrs. Schindler lived at her home on North Emporia avenue; plaintiffs frequently cooked foods of the kind she relished and took them to her home for her; that in June, 1929, Mrs. Schindler remained with plaintiffs in their home for some time, and in January, 1930, became ill while at the home of plaintiffs and was taken from there to the hospital, where she remained until her death; that since 1921 plaintiffs looked after Mrs. Schindler much as though she were their own mother, frequently called at her home, or she at their’s, and at all times watched and cared for her; that during that time plaintiffs were requested to make repairs and do odd jobs about the home of Mrs. Schindler, which were performed and no charge made therefor; that plaintiffs performed the services aforesaid for Mrs. Schindler under the verbal promise and agreement, previously mentioned, and did all things agreed to be done under the oral promise; that Mrs. Schindler stated to plaintiffs and others that she had executed her will in which she left the residue of her property to them after making several minor bequests, but that the will, if executed, has never been found.
But one witness testified directly as to a contract between plaintiffs and Mrs. Schindler. This was a servant, employed at times in the home of Mrs. Schindler. She testified that she became acquainted with Mrs. Schindler about July, 1919, and did some work for her about the fall of 1920; that when Mrs. Schindler was at her home she saw her nearly every day; that she was at Mrs. Schindler’s home sometime in the fall of 1920 when plaintiffs were there.
“I heard Mrs. Schindler 'say to them, ‘You children want to look after me all the time, because when I am gone everything that is here belongs to you — all with the exception of a few little things I want a few friends to have.’ She said that the children had been mighty nice to her all the time and she wanted them to have everything she had. She said ‘Carl and Louise.’ When she said that to them they said they would do all they could to make her happy.” ,
Later, referring to this same matter, she testified:
“Carl and Louise said they would do their best and they said later, ‘We will do just what you ask us to.’ Then Mrs. Schindler says, ‘Children — kids— if you stick to your promise — your contract — I will stick to mine.’ ”
The alleged contract, as testified to, differs materially from the one pleaded, not only as to the time when, and the place where made, but in its important elements. Indeed, it is difficult to see that it embodied all the elements essential to a contract. No wonder the trial court felt compelled to find: “The evidence does not disclose just what it was intended should be done by plaintiffs to perform their part of the agreement.” Had Mrs. Schindler while she was living brought a suit against plaintiffs to require the specific performance of the contract on their part the court necessarily would have been at a loss to know what acts of performance were required.
There is some other evidence with reference to this supposed contract from witnesses who heard Mrs. Schindler say something about .it. To one witness she said, speaking of plaintiffs, that when she was gone they “would have a nice home if they would be just the children she wanted them to be.” In 1927 a witness heard her say to Mrs. Woltz, one of the plaintiffs: “You have agreed to take care of me and you are to be well paid for it.” To another witness, in 1924, in speaking of some kindnesses of the plaintiffs, she said: “but some day I am going to see they are well paid.” And to another witness, in 1929, she said, with reference to plaintiffs: “They will never regret what they have done for me. They will be well paid for it.” To another she referred to plaintiffs as “my kids” and said: “They have promised to take care of me all of my days. They will never regret what they have done for me. They will be well paid for it. Some day he (or they) will get all I have.” To another witness, in 1926 or 1927, she said Carl and Louise had promised to take care of her the rest of her life and when she was gone they should have what she had. To another witness, in 1928, she said she “was going to leave the Woltzes well fixed, and she had nobody else to leave it to and she was going to leave them her property for taking care of her.” An incident which throws some light on the matter is this: In the spring of 1929 Mrs. Schindler was visiting plaintiffs. Mrs. Woltz, looking at the paper, noticed an advertisement of “a salesgirl wanted.” She mentioned that to Mrs. Schindler and said: “I ought to go to work because Carl has been out of work, maybe I could help things along a little bit.” Mrs. Schindler replied: “No, Louise, you can’t go to work; you promised to take care of me as long as I lived, and I promised to give you my property when I am through.” She said: “We made the contract, you keep your part of the agreement and I will keep mine.” A similar instance about the same time is testified to by one or two witnesses when Mr. Woltz said, in the presence of Mrs. Schindler, that he would have to look for work, and she t.old him, no, that he couldn’t for he had to stay and take care of her because of their contract. Another time, in July or August, 1929, at Mrs. Schindler’s home, when plaintiffs were there, this conversation was testified to:
“Mes. Schindler: T have a pretty nice home here, don’t I, Carl?’
“Carl: ‘Yes, you do.’
“Mbs. Schindler: ‘Do you like it, Carl?’
“Carl: ‘There isn’t a home in Wichita any better.’
“Mrs. Schindler: ‘How would you like to live in it?’
“Carl: ‘You know what my answer would be. I think it would be awfully nice.’
“Mrs. Schindler: ‘Well, after I am gone you will probably live in it.’ ”
These instances indicate that as late as 1929 plaintiffs did not appear to know or thoroughly to realize that they had a definite contract by reason of which they were to spend their time looking after Mrs. Schindler and in turn were to have all of her property at her death. There is testimony tending to show that at one time she had 'made a will, by the terms of which plaintiffs in this action were to some extent beneficiaries. But no will was found after her death, and if she made a will why it was destroyed by her, if it was, is not disclosed by the record.
Actions to enforce contracts in effect to devise or bequeath property in consideration of performance of personal or filial services are sufficiently frequent to indicate their popularity, if not their necessity. (69 A. L. R. 16.) Many of them are meritorious. Quite a few of them lack merit. They are a class of cases which call for close scrutiny of evidence, for they offer a great temptation to set up fraudulent claims against the estates of deceased persons. (Cathcart v. Myers, 97 Kan. 727, 732, 156 Pac. 751; James v. Lane, 103 Kan. 540, 549, 175 Pac. 387.) While in the nature of specific performance, the theory on which the courts proceed is to construe such agreements, if valid in other respects, to bind the property of the testator or intestate so far as to fasten a trust on the property as against the heirs, devisees, or personal representatives of the deceased. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Braden v. Neal, 132 Kan. 387, 391, 295 Pac. 678.) In order to sustain his right to recover plaintiff must plead and show that there was a contract and compliance therewith on his part under which, in equity and good conscience, he should possess and enjoy the property sought, as against those who would otherwise be entitled to it. “The contract is the foundation of plaintiff’s right to recover.” {Dreher v. Brumgardt, 113 Kan. 321, 214 Pac. 419.) It is essential that the contract be clearly established, that there has been performance on the part of the promisee, and that the claim is equita ble. In Anderson v. Anderson, supra, a leading case on the question in this state, it was held:
“Whether equity will decree the specific performance of a contract rests in judicial discretion and always depends upon the facts of the particular case. As a rule, when a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable.” (Syl. If 1.)
And on page 123 it was said:
“When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable. This is the general doctrine adhered to by the courts.”
In Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396, it was held:
“Before an oral agreement will operate as a transfer of land it must appear that it is certain and definite in subject matter and purpose and has been proved by clear and satisfactory proof.” (Syl. ¶ 2.)
And in the opinion (p. 699) it was made clear in such a case the first question to be determined is whether there was a contract such as is claimed; and, second, is the contract of such an equitable character and so far performed as to be enforceable. The class of evidence by which the contract is proved, whether direct or circumstantial, is not so important, but it must be such “as to raise a convincing implication that the contract was actually made and satisfy the court of its terms and performance, and that there would be no inequity in its enforcement.” (Syl. ¶ 3.) The principles announced in the two cases last cited have been frequently reconsidered, adhered to and applied by this court. In some of the cases it has been held that the contract relied upon was established by proof, that its terms were ascertainable, that there had been performance on the part of the promisee, and that its enforcement was in conformity to principles of equity. (Wooddell v. Allbrecht, 80 Kan. 736; Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; Cathcart v. Myers, 97 Kan. 727, 156 Pac. 751; Jacks v. Masterson, 99 Kan. 89, 160 Pac. 1002; Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062; Hickox v. Johnston, 113 Kan. 99, 213 Pac. 1060; Braden v. Neal, 132 Kan. 387, 295 Pac. 678.)
In other cases the court has held that the purported contract re lied upon was not so established. (Overly v. Angel, 84 Kan. 259, 113 Pac. 1041; Stark v. Shields, 91 Kan. 562, 138 Pac. 414; Fair v. Nelson, 96 Kan. 13, 149 Pac. 432; McKeown v. Carroll, 102 Kan. 826, 172 Pac. 525; James v. Lane, 103 Kan. 540, 175 Pac. 387; Pantel v. Bower, 104 Kan. 18, 178 Pac. 241; Nash v. Harrington, 110 Kan. 636, 205 Pac. 354; Dreher v. Brumgardt, 113 Kan. 321, 214 Pac. 419; Aiken v. English, 131 Kan. 226, 289 Pac. 464.)
No good purpose would be served in analyzing each of these cases in detail. To cite them is deemed sufficient. Applying the principles above announced and the application made of them by this court in the cases cited, it is clear that the purported contract relied upon in this case is indefinite in its terms, not only with respect to the property covered by the contract, but also with respect to what the promisees were to do under it. It is not established by convincing proof; indeed, it is clear that as late as 1929 its existence and its terms were not clear or understood by the alleged promisees, even if, indeed, they were by the promisor.
The necessary result is that plaintiffs’ action fails. Another reason which requires the same result is that the purported contract necessarily involved the transfer of title to real property. To be enforceable under the statute of frauds (R. S. 33-106) it was necessary that it be in writing, unless there had been such performance on the part of the promisees as to take the case out of the statute of frauds. Here there was no way to measure performance by the promisees because it cannot be told from the purported contract what they were obligated to do; hence proof of performance to take the case out from under the statute of frauds is lacking.
There is still another reason which requires the same result. It is clear from the evidence in this case that all of the services shown by plaintiffs to have been performed for Mrs. Schindler could be readily ascertained and compensated in money. There is no showing that the parties changed in any substantial degree their mode of living after the time it is alleged this purported contract was made. Mrs. Schindler continued to live in her home on Emporia avenue. Plaintiffs continued their residence at a distant part of the city. They visited back and forth, as they had done previously, and as Mrs. Schindler and other of her neighbors did. Mrs. Schindler employed her own help at the home, not only in the house, but to take care of her yard and to look after her business property. It was in the testimony that she was careful not to let anyone do work for her unless he were hired and paid. On one or two occasions Mr. Woltz, who was a carpenter by trade, did a little work about her premises, on the screens, or made light repairs. Mrs. Woltz did some sewing for Mrs. Schindler. Whether plaintiffs were paid for these services is not specifically disclosed. They are comparatively trivial in any event. Sometimes when Mrs. Schindler visited the plaintiffs she stayed all night, or for a few days, as did others of plaintiffs’ friends who visited them. Mrs. Schindler took most of her meals at her home. She obtained cooked foods from time to time from a number of her friends, including plaintiffs. In 1921 she was ill, but was cared for at a hospital, where she was operated upon for tumor. In 1928 she was a patient in a hospital for about three months. For about six weeks prior to her death she was ill and was taken care of at a hospital. For three or four weeks before she was taken to the hospital the last time, she was ill at the home of plaintiffs and was cared for by them. Two doctors attended her during that time. Plaintiffs brought out from these physicians that a reasonable charge for the care given Mrs. Schindler by plaintiffs during that time was from $150 to $200 per month. Whether they were paid for that does not appear from the record, but if not, it was the only service of consequence shown by the evidence to have been performed by plaintiffs for Mrs. Schindler aside from the courtesies and civilities exchanged between neighbors and friends; so there would have been no serious difficulty in establishing the money value of services performed by plaintiffs. A proceeding to recover for such services should have been brought in the probate court. (R. S. 22-708.)
It would be clearly inequitable, as against anyone who had a rightful claim to it, for the court to turn over to plaintiffs property of the reasonable value of $75,000, as found by the court, in payment of services which could be readily estimated in money and which actually amounted to only a few hundred dollars, and which plaintiffs, even when expressing exaggerated views in their petition, did not feel justified in claiming to exceed $15,000.
Taken as a whole, the record clearly shows that the claim of plaintiffs for all of Mrs. Schindler’s property by reason of the alleged contract is not well founded and that it has no merits in equity.
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The opinion of the court was delivered by
Dawson, J.:
This was an action by a mother against her daughter to recover damages caused by the alleged negligence of the latter, whereby an automobile in which they were riding went into a ditch by the roadside, with the consequence that the mother was severely and permanently injured.
For some two or three years prior to October 6,1929, the daughter,who was married and had two small children, resided with her parents in Fort Scott. In August of that year she purchased an automobile — a five-passenger sedan — with $200 of her own money and $800 given by her father for that purpose. The mother and daughter commonly used the car together. The mother was sixty-two years old and somewhat incapacitated by a rheumatic affliction from which she had suffered some years previously and which had permanently enlarged and stiffened her joints, knees, ankles and hands. She was also very deaf and required a speaking tube in conversation. She was able, however, to do the family housework and took care of her two grandchildren. The daughter had employment outside the home.
On the morning' of October 6, 1929, the mother and daughter and the two children left Fort Scott to visit relatives in Baxter Springs, about sixty-six miles away. The daughter was at the wheel with one of the children beside her. The mother and the other child occupied the rear seat. The automobile made a rapid trip and when they were traveling on an east-bound road about two miles from Baxter Springs, the daughter took one hand off the wheel and reached into a satchel beside her, drew therefrom an open-faced watch and held it over her right shoulder for her mother to see and glanced around at the same time. The mother noticed the time of day and remarked, “Umhuh, we will soon be there.” At that instant the car commenced to skid to the left, got back into the road, started over to the right at full speed, and plunged into a ditch and capsized. After the accident the right front tire was found to have a three-and-a-half inch cut in it. Plaintiff’s son testified that it did not look like a “blow-out,” and plaintiff sought to have the jury draw an inference that the tire was cut by a snag after the car went into the ditch. At the place of the accident the road, U. S. highway No. 166, was thirty feet wide and covered with chat. There were some chat piles by the roadside and some loose chat on the road.
The mother brought this action against the daughter, narrating the material facts. In plaintiff's amended petition she alleged that—
“The said defendant negligently .operated said automobile at a reckless and careless and dangerous rate of speed, considering the condition of the road and the traffic.
“That the defendant, while driving such automobile, negligently took her right hand from the steering wheel while driving and with it opened a hand ' satchel and took therefrom a watch and looked at such watch and thereupon negligently held such watch in her right hand above her right shoulder and thereby negligently diverted her attention from the driving of such automobile, and while negligently driving such car in such manner and upon the road which was in the condition hereinbefore described, negligently allowed such automobile to get out of her control and negligently caused such automobile to turn into the ditch on the right-hand side of such road, and by reason and on account of said negligent and careless operation of said automobile by said defendant said automobile was overturned and plaintiff sustained the following injuries.”
Plaintiff’s petition then set out her injuries and consequent doctors’ and hospital bills, and prayed judgment in damages for $20,877.69.
On behalf of the defendant daughter an answer was filed in which negligence was denied, plaintiff’s contributory negligence was pleaded, and it was alleged that plaintiff and defendant were em gaged in a joint enterprise.
The cause was tried by a jury. The facts shown in evidence were substantially as stated above. Some rather uncommon matters were incidentally developed at the trial; for instance, that this lawsuit for this large sum of money made no change in the amicable attitude of mother and daughter. They continued to reside together. When the mother’s lawyers called to discuss the case with their client in preparation for this lawsuit the defendant daughter used the speaking tube to tell her mother what the lawyers had to say. The defendant also went to the scene of the accident and sprinkled flour on the automobile tracks so that a photograph might be taken for plaintiff’s use as evidence in this action to recover damages for her own negligence. Another significant matter was brought out at this trial. There had been a previous trial and a verdict for plaintiff, which had been set aside. At the second trial it was brought out in the evidence that in that first trial the incident about defendant getting the watch out of her satchel and showing it to her mother and the mother’s responsive remark thereto was not pleaded nor was any evidence or intimation concerning it developed.
The jury returned a verdict for $10,000 in plaintiff’s favor and answered certain special questions:
“Q. 4. Was the plaintiff riding in the oar at time of injury without making any protest at the manner in which the car was being driven? A. Yes.
“Q. 5. If you find in favor of plaintiff, state upon what ground or grounds of negligence you so find. A. Taking hand off wheel and eye off road.
“Q. 6. Did the plaintiff without protest cooperate with defendant in whatever was done in connection with the watch, so as to apprise plaintiff of the time of day? A. Yes.
“Q. 7. What caused the car to swerve on the road, immediately preceding the injury? A. Taking hand off wheel and eye off road.”
Defendant’s motion for judgment on the special findings was overruled; likewise plaintiff’s motion to set aside the jury’s answer to special question No. 6.
Defendant then filed a motion for a new trial because of various matters, including misconduct of the jury. The misconduct complained of arose from the act of one of the jurors who clipped a news item appearing in a current issue of a local newspaper and carried it into the juryroom. The newspaper article read:
“TRYING CASE AGAIN.
“SECOND TRIAL OF SUIT OF MRS. BRYANT AGAINST DAUGHTER IS ON ; “GOT JUDGMENT FOR INJURIES.
“The second trial of the suit of Ida M. Bryant against her daughter, Ruth Marshall, for damages for injuries received by her as a passenger in Mrs. Marshall’s car when it overturned near Baxter Springs, Kan., some time ago, was under way to-day in district court. Mrs. Bryant at the first trial secured judgment for $10,000, but Judge Charles F. Trinkle sustained a motion for a new trial filed by Mrs. Marshall’s attorneys.
“Mrs. Marshall carried liability insurance on her car, to protect her in case of claims against her due to accident. Mrs. Bryant claims she is entitled to receive compensation from this insurance.”
Seven of the jurors made affidavits that the article was read to the jury and passed from hand to hand among them, and that the matters narrated in the article were discussed by the jury in the course of their deliberations. There was no showing by plaintiff to counteract or minimize the gravity of this incident.
The motion for a new trial was overruled and judgment was entered for plaintiff.
Defendant appeals, urging certain errors, the first of which relates to defendant’s contention that no negligence was shown and "that plaintiff’s motion for judgment should have been sustained. The negligence of defendant as found by the jury was that of “taking hand off wheel and eye off road.” Defendant contends that the act of taking one hand off the steering wheel, picking up a watch and holding it over her shoulder and glancing back to see if her mother was observing the time did not constitute negligence. It is also urged that the highway at the place of accident was a wide, smooth, 'well-graded chat road, and that there was no other traffic on the highway thereabout at the time of the accident. But the mother testified that the chat on the road was loose, and that there were piles of chat by the roadside; and it was shown that the automobile was “going pretty fast.” It was at the very instant when defendant had taken one hand off the wheel and was glancing back at her mother the car began to swerve first to one side of the road and then the other. In view of these considerations, the question whether “taking one hand off the wheel and eye off road” was negligence under the circumstances was a jury question and not open to our decision as a question of law. (3-4 Huddy Encyc. Automobile Law, 9th ed., § 68; Notes in 5 A. L. R. 1240, 12 A. L. R. 668, 64 A. L. R. 255.)
Defendant also contends that if the daughter’s act of taking hand off wheel and eye off road constituted actionable negligence, the jury's special findings of fact convict the mother of contributory negligence. The jury found specially (finding No. 6) that plaintiff cooperated with defendant, without protest, in whatever was done in connection with the watch so as to apprise plaintiff of the time of day. Plaintiff moved to set that finding aside, but that motion was overruled. That ruling makes it apparent, as it seems to us, that without that special finding the trial court would not have approved the general verdict nor have entered judgment thereon. The “cooperation” of the mother, as found by the jury, was a very simple, natural act, but so, too, was the act of the daughter, yet the jury found that the daughter’s act was negligence; and since it was so characterized a majority of this court hold that the cooperating act of the mother must similarly be construed as contributory negligence.
This last conclusion might render it unnecessary to deal with the error assigned on the misconduct of the jury, but some of the justices think we should rule on it.
In Fields v. Dewitt, 71 Kan. 676, 81 Pac. 467, a verdict was attacked because certain local newspaper articles purporting to discuss the merits of the case from a point of view distinctly unfavorable to the appellant had been published during the trial, but it was not shown, as here, that the jurors had read them during the course of the trial; and this court ruled:
“To support an application for a new trial upon the ground of the mis conduct of jurors it is not sufficient to show that during the trial they read newspaper comments relating to the case, without showing also that the comments were of such a character that they might have resulted in prejudice to the losing party.” (Syl. fl 2.)
In the course of the opinion, however, it was said:
“Several of these articles were of such a nature that perhaps the reading of any one of them by a member of the jury before verdict would of itself have furnished good ground for a new trial.” (p. 677.)
In Barber v. Emery, 101 Kan. 314, 319, 167 Pac. 1044, in discussing an incident said to have transpired in the jury room, this court said:
“For the jury to consider independent facts, unsifted as to their accuracy by cross-examination, and unsupported by the solemnity attending their presentation on oath before judge, jury, parties and bystanders, and without an opportunity to contradict or explain them, can never be countenanced.”
In 46 C. J. 152 it is said:
“It is ground for a new trial .that the jury, in arriving at their verdict, considered . . . documents or papers not in evidence of a character that might have influenced the verdict. ... If papers improperly considered by a jury were material or fitted to prejudice the unsuccessful, party, a new trial should be granted, although the successful party was not at fault. Nor will the actual measure of influence of such papers be inquired into.”
On the same subject, in 16 R. C. L. 302, it is said:
“But where a paper capable of influencing the jury in favor of the prevailing party was improperly in the jury room during the deliberations of the jury, and was read by the jurors, the verdict will be set aside, although the jurors may think they were not influenced by the paper. And the presumption is that a paper improperly in the jury room was read wholly or in part by the jurors.”
See, also, McKibben v. Philadelphia & R. Ry. Co., 251 Fed. 577; Dartnell v. Bidwell, 115 Me. 227, 5 A. L. R. 1320; Guntzer v. Healy, 163 N. Y. S. 513.
Whether the newspaper clipping was actually taken into the jury room and discussed by the jurors, or read by some of them, as stated in the affidavit of the jurors, was a question of fact (Fidler v. Short, 118 Kan. 37, 40, 233 Pac. 1022), but in this case there was no testimony offered to controvert those affidavits. And while counsel for plaintiff argue that such incidents are unavoidable in a jury trial, and that jurors generally know that most people carry insurance to protect them in automobile damage suits, yet counsel do not suggest that the facts were not as stated in these affidavits. And while jurors may not be heard to state what evidence, inci dents, motives, course of reasoning, or conclusions induced them to arrive at their verdict (Ohlson v. Power Co., 105 Kan. 252, 182 Pac. 393; Matthews v. Langhofer, 110 Kan. 36, 202 Pac. 634; State v. Johnson, 129 Kan. 207, 209, 283 Pac. 723), they may testify as to what did or did not transpire in the jury room. (Perry v. Bailey, 12 Kan. 539; State v. Storm, 74 Kan. 859, 86 Pac. 145; Taylor v. Abbott, 85 Kan. 198, 115 Pac. 979; Clark v. Brady, 126 Kan. 59, 62, 266 Pac. 740; Dassler’s Kan. Ann. Civ. Code, 1378 et seq.)
The important question in a motion for a new trial based upon the misconduct of the jury is to determine whether the complaining party was probably prejudiced by such misconduct. It seems to us that the statement in the newspaper article that the daughter carried automobile insurance and that the mother wanted compensation therefrom was bound to have a prejudicial effect. That statement would illuminate the otherwise mystifying situation which the case presented. Here was a mother suing her daughter for the large sum of $20,877.69 for the alleged tortious act of the daughter. Nevertheless they continued to live cordially together in the same house. The daughter had to work outside the home, and it would take a long time to earn the money to pay so large a sum as that sued for. Another intriguing feature of the evidence was that the daughter served as interpreter when lawyers called to confer with the mother on matters relating to the' lawsuit. The daughter rendered assistance in the taking of photographic exhibits to be used in evidence against herself. But this unique attitude of the litigants would become quite understandable to the dullest juror when that newspaper clipping was read in the jury room. If an insurance company and not the daughter who had to work for a living was the party to whom the mother was really looking for compensation for her injuries, it would not be unusual for the jury to render a handsome verdict, supposing, as they were bound to do, that it was only color-ably rendered against the defendant.
Moreover, the information gleaned by the jurors from the newspaper article, in our view, goes far to explain the jury’s characterization of defendant’s momentary act of “taking hand off wheel and eye off road” as negligence. This court holds that the incident of the newspaper clipping in the jury room constituted prejudicial misconduct on the part of the jury. This whole record also makes it rather clear, in our opinion, that the “cooperation” of plaintiff and defendant was not limited to the incident covered by the jury’s sixth finding of fact. That special finding, however, conclusively settles this lawsuit.
The judgment is reversed and the cause remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The parents of Clara Shrewsbury brought this action to recover damages from Roy Goodacre for negligently causing her injury and death by driving his automobile, in which she was riding, against a railroad freight train. The jury found that she was guilty of contributory negligence, and this finding was approved by the court and judgment rendered in favor of defendant. Plaintiffs appeal.
The main contention is that the findings and verdict of the jury are unsupported by and contrary to the evidence. There is evidence to the effect that by a previous arrangement Miss Clara Shrewsbury accompanied the defendant to a dance in the country, traveling there in his automobile. On their return to Wichita from the dance they were traveling east on Franklin road. He was driving the car and she was seated at his side on the right. The night was quite dark, although there was no rain or storm, and the automobile was equipped with good lights and brakes. As they went forward in an easterly direction at the rate of thirty-five to forty miles per hour they approached the Rock Island railroad, over which a freight train was then.traveling going south. The train consisted of two engines and fifty-nine box cars and was traveling at a speed of about twenty-five miles per hour. The engines and thirty-five of the box cars had passed over the highway before the automobile reached the railroad where the accident occurred. There was an incline of the highway approaching the railroad for a distance of 216 feet, and with the lights the bottoms and wheels of the cars could be seen at that distance. The defendant and the deceased were engaged in conversation as they approached the track and were looking straight ahead. The deceased had the same opportunity to see the train that the defendant had, but she made no remark about the train nor gave any warning as to the speed or that the road was blocked by the train. He states that he did not observe the train until he was about thirty-five feet back from it, when he applied the brakes which slowed down the speed, but there was loose gravel on the road which made it more difficult to stop the car, and the speed of the automobile was reduced to about the rate of five miles an hour when it collided with the train. He made an effort at the same time to turn aside, without success. There was testimony that the defendant had been over the road two or three times before, about six months prior to the accident, but did not remember the location of the Rock Island track, and while Clara had ridden with him many times she had not been over the crossing before with him, and was unacquainted with the road. On the testimony the following special findings were returned by the jury:
“1. As the automobile approached the track on which the train was moving, would Clara Shrewsbury and defendant have discovered the train if they had looked to the east? A. Yes.
“2. If you answer question 1 in the affirmative, how far from the track do you find deceased and defendant could have seen the train had they been keeping a lookout? A. Thirty-five yards.
“3. Did Clara Shrewsbury keep a lookout for an approaching train or other danger? A. No.
“4. If you answer question 3 in the affirmative, what, if anything, prevented her from seeing the train and warning the defendant? A. Negligence.
“5. Did Clara Shrewsbury remonstrate or protest to the defendant as to the speed and manner in which he was driving the car prior to the accident?
A. No.
“6. Did Clara Shrewsbury warn the defendant of the presence of the train in time to avoid the accident? A. No.
“7. If you answer question 6 in the negative, what, if anything, prevented her from seeing the train and warning the defendant in time to avoid the accident? A. Negligence.
“8. Was Clara Shrewsbury guilty of any negligence directly contributing to her injuries? A. Yes.
“9. As the automobile came near the track where the collision occurred, did Roy Goodaere do anything to prevent the collision? A. Yes.”
The only contention of plaintiffs is that the evidence does not-sustain the findings and judgment. It is argued that the night of the accident was very dark, that Clara Shrewsbury and the defendant were looking towards the train and there is evidence that the defendant did not see the train until they were within thirty feet of it. It is said that the findings that deceased and defendant could have seen the train if they had looked to the east, and if they had been keeping a lookout for obstructions could have seen it as they approached it at a distance of thirty-five yards, are without support. There is testimony that Clara and defendant were looking straight ahead, and defendant says they did not observe the train until they were within thirty feet of it. It appears that they were engaged in conversation as they approached the train, and that may account for the failure of Clara to see the train on the crossing or to warn the driver that there was danger ahead. There was testimony that it could have been seen at night by the aid of headlights of the automobile for a distance of at least 216 feet and that the lights on the automobile in which they were riding were in good condition. A brother of Clara and a witness for the plaintiffs testified that he made an examination and test at the crossing in the nighttime and testified that the train could have been seen from the entrance upon the incline and that the distance was 216 feet away. There was a guard rail along the sides of the incline. This witness said there was nothing to prevent seeing the train if there were good lights on the automobile and the occupants were keeping a lookout.
It was the duty of Clara, although a guest, to take some care for her own safety. If the train was within her view and the driver was inattentive, she should have warned the driver of the obstruction in front of her, and if that had been done there was ample time thereafter to have stopped the automobile and avoided the danger. In Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, it was said:
“Where one person is riding with another for the mutual pleasure of both, with equal opportunity to see and ability to appreciate the danger, and is in fact looking out for herself, but makes no effort to avoid the danger, she is chargeable with the want of care which results in injury.” (Syl. ¶ 3.)
See, also, Anthony v. Kiefner, 96 Kan. 194, 150 Pac. 524; Kirby v. Railway Co., 106 Kan. 163, 186 Pac. 744; Sharp v. Sproat, 111 Kan. 735, 208 Pac. 613.
In the case of Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893, where a person riding in an automobile driven by the owner sustained injury at a railroad crossing, a special question and answer were as follows:
“As the automobile approached the track on which the freight car was coming would the plaintiff and the driver have seen the freight car if they had looked to the south? Yes.” (p. 309.)
And in the opinion it was said:
“These findings show that there was nothing to prevent the plaintiff and the driver from seeing the -approaching freight car at an ample distance from the track to enable them to avoid all danger; that neither the plaintiff nor the driver did anything to prevent the accident; and that they either did not look to ascertain if a car were approaching, or, if they did look, they saw the car and undertook to cross ahead of it. The plaintiff could have seen the approaching car in ample time to have warned Mr. West. This, under repeated declarations of this court, shows that the plaintiff was guilty of contributory negligence.” (p. 309.)
The danger was obvious, one that Clara could have seen if she had been exercising due care. It was her duty to look out for her own safety as far as it was practicable. This she did not do, and under the evidence the jury was warranted in finding that Clara was guilty of contributory negligence. (Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117.)
Within the rule of the authorities cited and of others therein referred to it must be held that there was ■ sufficient evidence to sustain the finding of contributory negligence, which bars a recovery by plaintiffs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The defendant in this case appeals from the conviction and sentence on two counts for the violation of the intoxicating-liquor law — sale and possession — and assigns errors in the giving of the second and fourth instructions and in approving the verdict when there was no evidence to support it.
It is urged that the fourth instruction did not extend to the matter of possession and that the defendant would not be in the same situation, as far as possession was concerned, as he was with reference to a sale. That instruction was as follows:
“If, as claimed by the state, Corbin directed one of his boys to get some liquor for Thompson and the boy got the liquor and turned it over to Thompson, the defendant Corbin would be in the same situation, so far as the sale is concerned, as though he himself had gotten the liquor and turned it over to Thompson.”
Of course, the situation is not the same as far as possession is concerned, and that was a splendid reason for the court limiting the application of directions, given to the boy by the defendant, to the matter-of the sale. The very limitation itself shows it is not to be applied to the feature of possession. The court had directed the jury in instruction No. 3 that a person may be said to be unlawfully in possession of intoxicating liquor when he has such control thereover as amounts to ownership or which shows an intention on his part to have or keep the same as his own. There is nothing in the record to indicate that the defendant was aiding or abetting the boy in the matter of possession, and we see no error in limiting the fourth instruction to the matter of the sale and omitting to give something further concerning possession when no such instruction was requested.
The second instruction was as follows, and the appellant complains of the last part of it, admitting that the first part is correct:
“Any whisky is intoxicating liquor under the law and any liquor capable of being used as a beverage whose alcoholic content is 33 per cent per volume is intoxicating liquor under the law.”
If it is generally and popularly known that any liquor capable of being used as a beverage, whose alcoholic content is 35 per cent per volume, is intoxicating liquor, we presume the court may take judicial notice of it and declare it to be intoxicating as a matter of law. (Intoxicating Liquor Cases, 25 Kan. 751.) But we do not deem it necessary in this case to go that far, although percentage of volume of liquors has been discussed in many Kansas cases as to the liquor being intoxicating. (City of Topeka v. Zufall, 40 Kan. 47, 19 Pac. 359; State v. Walbridge, 123 Kan. 386, 255 Pac. 83; and State v. Wharton, 132 Kan. 409, 295 Pac. 656.)
The only description given in this case of the liquor said to have been possessed and sold by the defendant was that it was whisky. It was examined by a chemist and he testified not only as to its per cent per volume of alcoholic content but also that it was intoxicating, and there was no evidence to the contrary. So we have here the uncontradicted evidence that the liquor was intoxicating and that it was whisky. The latter is sufficient under the statute (R. S. 21-2101 and 21-2109) to authorize the court to give the first part of the instruction as a matter of law.
“If in any case the liquor sold or kept for sale be identified by th.e proof as plain whisky or brandy or gin or wine or beer, or other spirituous, malt, vinous, or fermented liquor of the kind specifically mentioned in the statute, it shall be construed and held to be intoxicating. As to such liquors the statute simply declares what the courts and everybody else know.” (State v. Miller, 92 Kan. 994, 1004, 142 Pac. 979.)
Inasmuch as the liquor, being whisky, was, as a matter of law, intoxicating the percentage becomes immaterial in this particular case, and therefore whether correct or not, whether the percentage is too high or too low or not a subject of judicial notice, the statement becomes immaterial and certainly not in any way prejudicial to the defendant, as the liquor in question was intoxicating at any rate.
Appellant insists that the evidence of the state presents a state of facts too unreasonable, absurd and ridiculous to be worthy of belief, and that nothing but passion and prejudice could have induced credence thereof by the jury. In the first place, the main witness, Thompson, the purchaser, was almost an entire stranger to the defendant, having met him only once or twice before when he was purchasing a few empty bottles. The evidence shows that Thompson had been employed by the county attorney as a special liquor investigator; that before the purchase of this liquor was made they both observed police cars standing a block away and spoke of them as to what the officers might be doing out there. It is urged that no reasonable person would, in the face of such apparently close observation, have sold liquor to a stranger, and that in the light of such facts it is unreasonable to accept the evidence of this one witness with the slight corroborations of the officers as against the positive testimony of the defendant, his wife and two boys to the contrary. The defendant and Thompson were in the house when the purchase was said to have been made. The car of Thompson was in the driveway in the junk yard of the defendant, in view, however, of the officers a block away. The defendant says he sold Thompson five empty bottles for forty cents and gave back $9.60 for the ten-dollar bill which had been previously photographed and marked, instead of returning $2 as claimed by Thompson. In the search of the premises within a half hour after the sale, no liquor was found, but the marked ten-dollar bill was recovered. The reasoning of the attorneys for the appellant is logical and meets the approval of most cautious and prudent men, and for that very reason many such are deterred from the commission of crime because of the risk of being observed. There is a similar hazard in every crime, perhaps not so apparent as in this case, and while the unreasonable feature of the case is proper for consideration, it does not necessarily overcome the affirmative testimony of the offense, even ventured under such hazardous circumstances. Nearly all crimes carry in them huge blunders on the part of the performers readily so recognized by them after apprehension.
There was sufficient evidence, we think, to support the verdict. It is said the heavier penalty than usual indicates a prejudice and bias on the part of the trial judge, but perhaps the frequent violation of the liquor law in that county may have urged the trial judge to do something to lessen the frequency of such offenses if possible, as something evidently did urge the county attorney, resulting in. his employment of a special investigator.
We find no error in the matters above discussed nor in the overruling of the motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Tangie D. Godsey against Manley Cox and the Business Men’s Protective Association to recover damages sustained by plaintiff in a collision of automobiles on U. S. highway No. 73, which resulted in serious injuries to the plaintiff. At the trial a general verdict was rendered for the plaintiff in the sum of $10,000, itemized in special findings of $6,000 for permanent injuries, $3,000 for pain and suffering, and $1,000 for hospital and other expenses. A motion for a new trial was presented, which was overruled on condition that the plaintiff would remit $550 of the allowance for expenses. The remittitur was filed by plaintiff, and judgment was rendered for $9,450. Defendants appeal.
Plaintiff, it appears, was a guest of her sister, Mrs. Eaton, who was driving a Chevrolet car from Kansas City westward, with Helen Eaton, a daughter of Mrs. Eaton, seated on the front seat with the driver. The plaintiff was sitting in the back seat of the car. When they reached a point on highway No. 73 about six miles northwest of Lawrence they discovered the defendant’s car, which was a Hudson, coming from the west near the middle of the road at a speed estimated by witnesses as fifty-five to sixty miles per hour.
There is a conflict in the evidence as to the speed of the Hudson car, and also as to the management of the cars as they came into collision, which appears to have occurred on a straight road in the open country where there were no obstructions to the view of either driver.
Plaintiff’s evidence was to the effect that the Hudson car driven by Cox was coming from the west at a speed of sixty miles an hour in the middle of the road with a wavering and zigzagging motion, and partly on the wrong side of the road; that the driver of the Chevrolet was on the right or north side of the road traveling twenty-five to thirty miles an hour, and that Mrs. Eaton drove towards the edge of the road to avoid the Hudson car, which seemed to be heading for the Chevrolet, and that her daughter Helen, seeing the Hudson car coming towards them and fearing a collision, suddenly grabbed the steering wheel of the Chevrolet and pulled it to the left, when a collision with the Hudson occurred, which resulted in the death of Mrs. Eaton, her daughter Helen, and the injury to the plaintiff. There are no complaints of rulings on the admission of evidence or of instructions given or refused, but the only complaint is that the evidence is insufficient to establish negligence on the part, of Cox, and the contention is that the collision was caused by the act of Helen Eaton in grabbing the wheel and turning the car towards and into the path of the car driven by Cox, and that defendants are not legally liable for Helen’s act. Special findings were returned, one of which was:
Q. “Did the daughter of the driver of the automobile in which plaintiff was riding, just before the collision, grab the wheel and swerve said automobile across the road and into the path of the defendant Cox’s automobile? A. Yes.”
While Cox denies he was driving at an excessive rate of speed or in a careless way, several witnesses testified that he was driving at a speed of from fifty-five to sixty miles an hour, but a more serious matter was that he was wavering from one side of the slab to the other or wrong side as he approached the Chevrolet. A motorist who was changing a tire near the place of collision testified that the Hudson was being driven half on the left-hand side and that:
“This fellow (Cox) kept driving down the road and kept driving in a wavering manner, from the center, and a little over to the left and back over to the right, and kept doing that.”
Another witness stated that the Hudson car was going at a speed of sixty miles an hour, was wavering and apparently out of control, that sometimes he was on the wrong side of the slab and just an instant before the collision the Chevrolet turned somewhat to the left and appeared to be trying to get around the Hudson car. The plaintiff, who was riding in the back seat of the Chevrolet, testified that they were traveling along on the right side of the road at a rate from twenty-five to thirty miles an hour, and as to the collision she said the first thing she saw was “a big black car coming as fast as it could come, right at us,” when she jumped and grasped the back of the seat in front of her and at the same time Helen shouted, “Oh, mama,” and grabbed the wheel which turned the car to the left. The slab was concrete, being eighteen feet wide, with a black mark in the center of the slab. On either side of the slab was a shoulder and outside of the shoulder a ditch. As to careless and wavering driving of the Hudson car as it approached the place of collision, Cox and his companion testified that the speed did not exceed forty miles an hour, that they were going straight ahead and were not on the wrong side of the road, and that the Chevrolet was suddenly swerved in front of the Hudson followed by a collision.
Manifestly the jury gave credence to the evidence of plaintiff’s witnesses as to the manner of driving the Hudson and its position on the wrong side of the road. The manner of driving the Hudson as described by the witnesses, and evidently believed by the jury, constituted gross negligence. The jury did find that when Helen Eaton grabbed the wheel of the Chevrolet the car was swerved to the left and defendants say that she was negligent and her action caused the collision, but the testimony which was believed, and must control on this appeal, shows that Cox was driving on the wrong side of the road, and was heading directly towards the Chevrolet when Helen grabbed the wheel. Perhaps it would have been a wiser or better course to have pulled it to the right, even into the ditch. Naturally when the women in the Chevrolet saw the big black Hudson car headed directly towards them at a high speed it caused a sudden fright, and when there was no time to deliberate as to which way was best to avoid the Hudson car, the impending danger that threatened the lives of the three women would naturally throw them into a condition of panic. Perhaps the position and direction of the Hudson car led Helen to think she could best avoid a collision by turning to the left and going around the Hudson- car. The plan was not successful, but who can say that some other plan would have been judicious and would have avoided a collision? Under the circumstances of the emergency it cannot be held that the action of Helen constitutes negligence which relieves defendants from liability for their own negligence, which brought about the situation that caused the smash-up and injury to plaintiff.
In Barnhardt v. Glycerin Co., 113 Kan. 136, 213 Pac. 663, the negligence of 'persons suddenly placed in a position of peril and impending danger was considered and sanction was given to the following rule:
- “The rule judicially stated is that one who in a sudden emergency acts according to his best judgment or who because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.” (20 R. G. L. 29.)
In Ryan v. Atchison, T. & S. F. Rly. Co., 131 Kan. 706, 293 Pac. 763, the act of a railroad employee in an emergency was discussed and the employee was asked why he didn’t apply the emergency brake (the angle cock) or signal the engineer, and his answer was, “Because I didn’t have time.” It was remarked:
“He may have employed the wrong means to avoid the injury, but if he had attempted to use either of the other means it might have been unsuccessful and the censure could with equal force have been applied to him for failing to hurriedly push him off the track. Negligence cannot be predicated upon the choice of the wrong means pursued to avoid the injury in an emergency.” (p. 715.)
And the rule of Barnhardt v. Glycerin Co., supra, was approved.
In Webb v. Lipperd, 134 Kan. 764, 8 P. 2d 381, where an automobile was wrecked on a curve of the road, the question was whether one or the other of two courses should have been followed. It was remarked:
“Defendant also makes the point that when defendant saw the unexpected automobile approaching around the curve from the northwest he should not be held liable for his error in judgment in applying his brakes as he swerved to avoid the collision. Probably so. Persons suddenly confronted with imminent danger do things which ordinarily might be regarded as negligence but which are excused by the circumstances.” (Citing the Ryan case.) (p. 768.)
We hold there is sufficient evidence to sustain the verdict finding the defendants were guilty of negligence and that their negligence caused the injury to plaintiff.
It follows that the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal question supposed to be involved in this case is, whether a certain supposed school district called “School District No. 101, of Montgomery county,” has any legal or valid existence. The plaintiff claims that it has, while the defendants say that it has not, and deny that it ever had any existence as a school district, either in law or in fact. Other questions are also involved in this case, and the case might be disposed of in this court upon some of the other questions without deciding this supposed main or principal question. The territory out of which it is claimed that said School District No. 101 was organized, (except 500 acres thereof,) belonged at the time of such supposed organization to School District No. 2 of Montgomery county; and the defendants claim that it still belongs to said School District No. 2. This action was commenced by said School District No. 101, to enjoin the county treasurer of Montgomery county from paying to said School District No. 2 any moneys collected as taxes for school-district purposes from said disputed territory. Whether such treasurer has or is likely to have any such money, we cannot tell; for there is nothing in the record of this case, except the allegations of the plaintiff’s petition, which shows anything concerning ■the matter, and these allegations were denied by the defendants in an answer verified by affidavit. It would seem from the record that about all that the plaintiff desired to do on the trial of this case was, to prove that it was a legally-organized school district. And it would seem that it supposed that if it proved that fact, that everything else would necessarily follow. But even in the proof of this fact, we think the plaintiff failed. We shall consider all the legal evidence introduced or offered to be introduced by the plaintiff, whether it was received by the court below or not. And taking all of this evidence, did it show prima faoie a legal organization of said School District No. 101? We think not. First, it did not show that the county superintendent of public instruction ever created or attempted to create said School District No. 101, but on the contrary it showed that he actually refused so to do. Second, it did not show that there was ever any legal appeal taken from such refusal of the county superintendent to the county commissioners;' and probably no such legal appeal was ever in fact taken. Third, it did not show that said county commissioners ever legally created said school district. Under the statutes the county superintendent alone has original jurisdiction to create new school districts, or to change old ones, but an appeal may be taken from him to the county commissioners. (Laws of 1876, pp. 245, 246, §§13, 3, 4, 5.) But where the county superintendent refuses to create a new district, and the county commis sioners on appeal reverse his decision, what should then be done, is not defined by the statutes. Whether the county commissioners themselves should then make the order creating the new district, or should remand the matter back to the ■county superintendent for him to do so, is not prescribed by the statutes. Probably the latter course would be the better practice. It makes no difference however in this case, as we think, which course should be adopted; for in this case it was not sufficiently shown that either the county superintendent or the county commissioners ever made any valid order creating said School District No. 101.
The plaintiff offered to introduce in evidence all the proceedings of the county superintendent, and all the proceedings of the county commissioners, and all papers connected with such proceedings, and with the supposed formation, creation, and organization of said School District No. 101. But the court below, on the objection of the defendants, excluded such evidence. Was this error? If said evidence showed prima facie a valid organization of said School District No. 101, it was error; but if not, then it was not error. Among this evidence was a paper marked “K,” purporting to be a petition of “qualified voters of Montgomery county,” asking the county superintendent to create a new school district, defining its boundaries by sections, township, and range, but not otherwise. Upon this petition were the following indorsements:
“Independence, Kansas, April Ifth, 1876. — The undersigned refuses to take any action on this petition.
“B. R. Cunningham, Co. Superintendent.”
“The within petition is granted this 11th day of April 1876. Thomas R. Pittman, Chairman Board, &a.”
“Independence, Kansas, Oct. 3d, 1876. — The county commissioners having heard evidence, and the argument of counsel, upon the within petition, are of the opinion that their first action in April last making division of said district was taken without full knowledge of the facts and of the law, and hereby reverse their order of that date.
“Thos. R. Pittman, Chairman.”
Also among said evidence was the following- from the county commissioners’ records, to-wit:
■ “April 4th, 1876. — The petitions of school districts in Louisburg and Cherokee townships, for division, were discussed, and action thereon deferred till the first Tuesday in June, and the county clerk instructed to notify all the district officers concerned of the time of meeting. Reconsidered in Cherokee township, and division made according to the petition. District No. —.”
The defendants objected to this record being introduced m evidence, “for the reason that the territory described in the petition marked ‘K,’ is in Parker township, and not in Cherokee township; and second, because said record is irrelevant, incompetent, and immaterial testimony at this stage of the proceedings,” which objection was by the court sustained. Also among said evidence was a paper purporting to be a notice from the county superintendent to the voters of School District No. 101, notifying them “that the board of commissioners of said county has formed a school district to be known as School District No. 101, county of Montgomery, state of Kansas,” etc. But there was no evidence showing that this notice was ever used in any manner in forming or organizing said School District No. 101.
The foregoing is all the evidence, that can be called legal evidence, tending to show what the county superintendent, or the county commissioners, did with reference to the creation or formation of said School District No. 101.’ That the county superintendent did not form, create, or organize said school district, is certain; and there was really no legal evidence tending to show that any valid appeal was ever taken from the county superintendent to the county commissioners. But even if such appeal had been taken, still there was no sufficient evidence that the county commissioners ever formed, created, or organized said School District No. 101. But as it does not appear that any valid appeal was ever taken to the county commissioners, it therefore does not appear that even what the county commissioners did with reference to this matter was within the.scope of their jurisdiction. There is no claim- that thé plaintiff had any other or additional evidence than that offered in the court below to prove that said school district was legally formed, created, or organized". The plaintiff’s evidence also showed that certain persons met in-said supposed school district, and elected officers, and went through with all the forms of organizing a school district. But it is not claimed that these persons or officers ever got such possession of the disputed territory, or were ever so recognized by the inhabitants and voters thereof, or by School District No. 2, or by the county officers of Montgomery county, as to become a school district de facto, provided it was not a school district de jure. Under the showing made in this case we would think that said disputed territory, and the inhabitants thereof, still form a part of said School District No. 2.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action of replevin, to recover the possession of a half-medium Gordon job printing-press. The plaintiff claimed under a chattel mortgage from A. W. Gifford to W. L. Winter, of date 22d April 1875, assigned to it on the 28th of said April, by said Winter. Defendants claimed by purchase from one Carr, who bought at an execution sale, after the mortgage was recorded; but such defendants were ignorant of the existence of the mortgage at the time of their purchase. The chattel mortgage was offered in evidence, but rejected as being void for uncertainty of description. Thereupon the following proceedings were had:
“Plaintiff’s counsel asked the witness Augustus Wilson, who was the president of the Parsons Savings Bank:
What did you do, if anything, toward taking possession of the property mentioned and described in this mortgage offered in evidence, including the press in controversy?’
“Defendants object, for the reason that the question is incompetent, immaterial, and irrelevant, and assumes that the press mentioned in the mortgage is the one in controversy. Objection sustained — to which ruling plaintiff excepts.
“ Plaintiff now offers to prove, in response to such question, that the plaintiff, as assignee of W. L. Winter, the mortgagor, and while A. W. Gifford was in possession of the property described in the mortgage as owner thereof, and before these defendants acquired any interest in said property, with a copy of the mortgage offered in evidence went with A. W. Gifford to where the mortgaged property (including the press in controversy) was, and there took possession of said property with the consent of said Gifford, and retained the possession thereof until the same was wrongfully obtained by other parties, under whom alone these defendants claim, which facts the court refused to allow the plaintiff to prove— to which ruling plaintiff excepts.
“Question: ‘State whether or not, prior to the defendants’ obtaining any possession of the press in controversy, you had received possession and control of the said press from A. W. Gifford? and if yea, state the facts in relation thereto.’ Defendants object, on the ground of incompetency, irrelevancy, and immateriality. Objection sustainedto which ruling plaintiff excepts.
“Plaintiff now offers to prove, in response to such question, that A. W. Gifford, as owner of said press in controversy, delivered possession of the same to this plaintiff before the constable’s sale mentioned in the testimony, and before defendants’ purchase of the press referred to in the testimony, and that such possession was transferred for a valuable consideration, and that the said press was in the possession of this plaintiff at the time of the supposed constable’s sale— which facts the court refused to allow plaintiff to prove — to which ruling plaintiff excepts.”
As the chattel mortgage neither sufficiently described the personal property, nor stated where it was situated, nor gave the place, county, or state where either the mortgagor or mortgagee resided, it was insufficient and defective, within Golden v. Cockril, 1 Kas. 259. The description of property in a chattel mortgage, to be good, should contain either some hint which would have directed the attention of those reading it to some source of information beyond the words of the parties to it, or something which will enable third persons to identify the property, aided by inquiries which the mortgage indicates and directs, or a description which distinguishes the property from other similar articles. When however the plaintiff offered to prove that, while the property was in the possession of Gifford, and before the defendants acquired any interest in it, the plaintiff, with a copy of the mortgage, went to where the mortgaged property was, and then took possession of the same with the consent of the mortgagor, and re tained possession of it until it was wrongfully obtained by other parties, the court below erred in rejecting the testimony. If this was done as claimed, it would cure any defect in the mortgage on account of any imperfect description of the property ; for it would be an appropriation and identification of the specific property to the mortgagee. Of course, the delivery, to be valid, must have been an actual transfer of the possession and control of the property, so that if destroyed the loss would have been that of the mortgagee, (or in this case, the assignee of the mortgagee, who stands in the shoes of the mortgagee.) Any constructive delivery or taking possession would have been of no avail.
The judgment of the district court must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
This ease is decided against plaintiff in error upon the authority of the case of Kansas Pacific Railway Company v. Yanz, 16 Kas. 583. The judgment of the district court' will therefore be- affirmed, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution under section 233 of the crimes-and-punishments act; (Gen. Stat. 369.) The defendant was charged with defiling one Emily Barney, a female person under eighteen years of age, by carnally knowing her while she was confided to his care and protection by her parents. The girl Emily was a sister of the defendant’s wife, and their father, Joseph M. Barney, was the prosecuting witness in the case. On the trial, the prosecution introduced in evidence a letter from the defendant to his wife. This was done under the permission of the court, but over the objections of the defendant. The defendant claimed that this letter was a confidential communication from himself to his wife, and therefore that it was not competent evidence against him. The admission of this letter in evidence is the first ruling of the court below of which the defendant now complains. For the purposes of this case, we shall assume that said letter was a confidential communication from the defendant to his wife; that it is what would ordinarily be called a privileged communication, and that it could not have been introduced in evidence in this case or in any other case, by either the husband or the wife, or against either of them, except with the consent of both, so long as the letter remained in the hands or under' the control of either of them, or in the hands or under the control of any agent or representative of either of them. We assume this however without desiring to express any opinion upon the subject. And with this assumption, was the said letter wrongfully introduced in evidence? We think not. It would seem that the letter was in the hands and custody of Joseph M\ Barney, the prosecuting witness, at the time it was introduced in evidence. It- had previously been sent through the post-office, and by mail, from the defendant to his wife. Barney received it from the post-office, properly directed to the defendant’s wife. He delivered it to her, and she, after reading it, returned it to him, and he furnished it to the prosecution to be read in evidence as aforesaid. And there was no evidence tending to show that it was at that time in the custody or under the control of any other person except Joseph M. Barney and the prosecution. It does not appear that either the defendant or his wife had at that time any control over the letter. It is certainly true, that a communication between husband and wife is a privileged communication. But it is privileged only while it remains within their custody and control, or while it remains within the custody and control of their agents or representatives, and just so far as it remains within the custody and control of themselves or their agents or representatives. “A private conversation between husband and wife, who thought that no one overheard them, may be testified to by a concealed listener.” Commonwealth v. Griffin, 110 Mass. 181. See also, State v. Center, 35 Vt. 378. This rule also applies as to confidential communications between attorney and client. Hoy v. Morris, 13 Gray, 519; Goddard v. Gardner, 28 Conn. 172; 1 Greenl. Ev., § 239a. With reference to confidential communications between attorney and client, Dr. Wharton uses the following language: “If a legal adviser permits his client’s papers to pass out of his hands into those of strangers, or if such papers are in any way extracted from his custody, they may be put in evidence by the party by whom they aré held, as against the client. So far has this been pushed, that it has been held that if an attorney permits a witness to see such writings, such witness, not being a clerk of the attorney, or legal adviser of the client, may be called to give secondary evidence of the writings, due notice being first given to produce them on the trial.” 1 Wharton’s Evidence, § 586. See also, Lloyd v. Mostyn, 10 Meeson & Welsby, 478. Mr. Greenleaf uses the following language, (probably with reference to written evidence generally, but immediately following a section concerning “communications between husband and wife,”) to-wit: “It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully; nor will it form an issue to determine that question.” 1. Greenl. Ev., § 2.54a.
There is no statute in this state rendering said letter incompetent evidence in a case of this kind. , The only statutes supposed to even look in that direction are the following:
Criminal Code, Section 309: “The provisions'of the law in civil cases, relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings for contempt to enforce the remedies and protect the rights of parties, shall extend to criminal cases, so far as they are in their nature applicable thereto, subject to the provisions contained in any statute.” (Gen. Stat. 853.)
Civil Code, Section 333: “ * * * In no case shall either (the husband or wife) be permitted to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.”' (Laws of 1872, page 335.)
It will be seen that these statutes do not go to the extent of excluding said letter as evidence. While the civil code provides that neither the husband nor wife shall, as a witness, furnish evidence concerning confidential communications, yet it does not provide that others who may happen to be possessed of such communications shall not do so; and while the criminal code provides that the provisions of law in civil cases relative to “compelling the attendance and testimony of witnesses,” and “their examination,” “shall extend to criminal cases,” yet it does not provide that the provisions of law in civil cases relating to the competency of witnesses and the competency of evidence shall extend to criminal cases. (The State v. Howard, 19 Kas. 509, 510.) A certain territorial district judge, once, however, in the early days of Kansas, thought otherwise, and permitted a defendant who was charged in a criminal case with murder in the first degree to testify in his own behalf, simply because defendants in civil cases were then (as now) allowed to testify in their own behalf. But whether said district judge would have compelled the defendant in that case to testify against himself, and in favor of' the prosecution, at the instance of the prosecution, simply because defendants in civil cases could at that time be compelled to testify against themselves and in favor of the adverse party, at the instance of the adverse party, is not known. The provision quoted from the criminal code is old. It was first enacted in 1855, (Laws of 1855, page 621, §16;) and was reenacted in 1859, (Laws of 1859, page 209, § 188; Comp. Laws of 1862, page 264, § 188;) and again reenacted in 1868, (Gen. Stat. page 853, § 209.) And the law making defendants competent witnesses in civil cases, for and against themselves, was passed in Kansas more than twenty years ago. Under section 215 of the criminal code, as amended in 1871, (Laws of 1871, page 280, §1,) a wife is a competent witness in a criminal case against her husband, if she chooses to testify. The State v. McCord, 8 Kas. 232.
All the instructions given by the court below to the jury were in writing, but inadvertently the court failed for fifteen days to sign some of them, or to file them among the papers of the case. These instructions were given on April 12th, and immediately thereafter were placed by the j udge in a private drawer of his in a table behind which he sat while the court was in session. These instructions remained in such drawer until April 27th, (which was the last day of the term of the court,) when they were taken out and copied into a bill of exceptions in this case, which bill of exceptions has been brought to this court. The defendant now claims that the failure of the judge to file them with the papers in the case was a fatal error. We do not think that it was, however. The statute does not in terms, if it does at all, require that the judge should sign instructions given in criminal cases; and the failure of the judge for fifteen days to file them among the papers of the case was not under the circumstances of this case a fatal error. Of course it was error, but it was not fatal, for the reason that it did not in the least affect any substantial right of the defendant. At the time the defendant desired to have his bill of exceptions allowed, the instructions were produced, ready to be incorporated into his bill of exceptions, and were so incorporated therein, and ready to be filed with the papers in the case. And as they had been reduced to writing by the judge before they were given, and were afterward put into a safe place, there could be no question as to their being given in a proper manner, nor as to their identity. The statute applicable to this question reads as follows:
“The judge must charge the jury in writing, and the charge shall be filed among the papers of the cause.” (Gen. Stat. 858, §236.)
It is probably unnecessary for us to say anything further in this case; for, taking the record brought to this court, it really does not in any intelligent manner present any of the other questions desired to be presented by counsel for the defendant. The evidence probably proved that the defendant was guilty beyond all possible doubt; but still, as the evidence has not all been brought to this court, we cannot tell this to a certainty. The evidence however brought to this court comes near enough to proving this fact to require a strong case of mere technical error to authorize a reversal of the judgment of the court below. But no strong case, if any case, of technical error has been made out, further than we have already considered.
The record is defective in not showing many things con cerning which the defendant desires to raise questions in this-court. We suppose that Joseph M. Barney was the prosecuting witness in .the case, but the record does not show that he was either examined or sworn as a witness in the case. Emily Barney, the girl alleged to have been defiled, was probably quite young, but what her age was,- except that she was under eighteen years, cannot be told from the record. It is shown that the girl was confided to the care of the defendant by her mother; but from anything appearing in the record she may have also been confided to his care by her father, and that portion of the charge complained of may have been error against the state, if error at all, instead of error against the defendant. But is it material, whether she was confided to the defendant’s care by the one, or the other, or by both? We think it is shown that she was not confided to the - care of her brother and sisters, either separately, or conjointly with the defendant; but as she was certainly confided to the care of the defendant, is it material whether she was also confided to the care of some other person, or not? She was certainly under the care of the defendant, and the defendant alone, when he defiled her.
We think it is clearly shown that the defendant fled from the country, and such fact probably was shown beyond all possible doubt.
It would probably have been out of place under the circumstances of this case for the court to have instructed the jury with reference to attempts to commit offenses similar to the one charged in this case. It would not have been proper under the evidence; and besides, the defendant did not ask that any such instruction should be given.
The court gave proper and sufficient instructions with reference to the place where the offense'must be proved to have been committed. Besides, there was no question but that the offense was proved to'have been committed in Neosho county, Kansas, just where it was charged t.o have been committed.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This action was brought by the First National Bank of Parsons, against George W. Franklin and his bondsmen, upon Franklin’s official bond, to recover damages for an alleged neglect of duty upon his part as sheriff of Labette county. The defendants filed a general denial. Judgment for defendants, on demurrer to plaintiff’s evidence.
The facts are as follows: On the 3d of October 1873, the sheriff,- by one Bradley, deputy, by virtue of an order of attachment issued by a justice of the peace in the case of the bank against one Whitney, levied upon and took into his possession certain goods, of the appraised value of $385. On the 29th of November following, judgment having been rendered against Whitney, the justice issued an order of sale, which it appears from the evidence was originally directed “To Carl Bradley, Deputy-Sheriff of said county,” and that sometime — the record does not show when — a pen-stroke was drawn through the words, “ Carl Bradley, Deputy.” This order was delivered to Bradley, and was returned as follows:
“Nov. 29th 1873, Rec’d this writ; advertised for sale, the goods described in the inventory and appraisement. Dec. 3d 1873, the above-described goods were taken out of my possession by Chas. H. Hallett, U. S. Deputy Marshal.
“G. W. Frankuin, Sheriff Labette county,
“By Carl Bradley, Deputy.”
Upon the trial of the cause the court excluded all testimony offered by plaintiff as to the value of the goods, except the sheriff’s appraisement, holding that conclusive. The court also excluded the order of sale, and the return thereon, because, without the alteration, the order was void, being directed to the deputy-sheriff; and with the alteration it was void, there being no evidence showing that the alteration was made before delivery. The only testimony as to the erasure was that of the justice, who testified upon direct examination that he did not know when the words were erased, that he had no recollection as to whether they were struck out when he signed the order, or of authorizing any person to strike them out, or whether the order was given to the plaintiff’s attorney before it was given to Bradley; and upon cross-examination he added, that he would not say that the erasures were made before delivery, and- that he had no idea that he erased the words. His docket, a transcript of which was in evidence, read — “Order of sale issued, dated, directed, and delivered to Carlos Bradley, deputy-sheriff.” But he testified that the words, “directed and delivered,” were printed on his docket, and that he usually entered on the blank opposite, the name of the person to whom he delivered it.
In each of these rulings we think the court erred. The appraisement was prima fade evidence of the value; but in an action against the officer, was not conclusive. If the goods had been sold, it is to be presumed that they would have brought their real value, and- that real value is the measure of the sheriff’s responsibility. The appraisement is but the opinion of the parties selected by the sheriff as appraisers. These appraisers may or may not have been fully acquainted with the market-value; but their estimate stands as the estimate of any other witness, and is to be judged by the same considerations as affect the testimony of others. . If it were not so, it would enable a sheriff, in case of a low appraisement, to convert the property to his own use, and then pay over simply the appraised value, thus profiting by his own wrong. The law places no such temptation before an officer. The appraisement was never intended to be a conclusive test of values, or a shield to an officer’s wrong. It is made ex parte, by persons selected by the officer, and as every one knows, is often wide of the exact truth.
In regard to the erasure in the order of sale, it is clear that the testimony fails to show when it was made. The justice evidently had no recollection upon the matter, and no other witness was called. And in respect to alterations, the general rule is thus laid down in Greenleaf on Evidence, sec. 564, note 3: “ It is also generally agreed, that inasmuch as fraud is never to be presumed, therefore if no particular circumstances of suspicion attach to an altered instrument, the alteration is to be presumed innocent, or made prior to its execution” — and in support of this, many authorities are cited. And the rule is a reasonable one. Nearly every one can write, and written instruments are as abundant as the leaves of the forests. They are prepared by all sorts of persons— those skilled in the law, and those not — and cover all sorts of transactions. Pending negotiations, the original draft is subject to constant changes, and is as often signed with all the changes, erasures and interlineations, as it is copied for execution. The hurry of business will not wait for perfect copies without erasures or interlineations. The law must take things as it finds them, and adjust its rules to the facts of every-day life. To require in every case of change, proof that the change was made before execution, before the instrument is admissible in evidence, would tend to prevent rather than accomplish justice. It will be borne in mind that the more important the transaction, the more likelihood of parties waiting for a perfect copy, and of -remembering the circumstances, or noting the fact of any alteration, while the less important the transaction, the less likelihood of waiting, or noting, or of remembering. Hence, evidence would be more accessible in the former than in the latter case, and at the same time less likely to be needed. So that the presumption, in the absence of suspicious circumstances, that the change was innocent, and made before execution, runs parallel with the actual experiences of business, and tends to uphold those transactions which stand in most need of such help.
Again: It must be noticed, that so far as the questions in this case are concerned, it is immaterial whether the process was in fact directed to the sheriff, or to Carl Bradley, deputy-sheriff. The former is of course the correct and formal direction of the writ; but the latter is simply an irregularity which the officer who has taken the writ and proceeded to execute it cannot thereafter avail himself of as a defense. The execution was not void, but only voidable. The defect was one that could be amended. And whatever might be the rule, if the officer refused to take or execute the writ, he cannot, after taking it, and advertising the property for sale under it, plead this defect in bar of his liability for suffering the property to pass into the hands of an unauthorized person. He is estopped as fully as though he had sold the property, had the money in his pocket, and refused to pay it over to the plaintiff. (Herman on Executions, 202, sec. 146, and cases cited in note; Walden v. Davison, 15 Wend. 575; Bacon v. Cropsey, 7 N. Y. 195, and cases cited in opinion of court.) And again, it may be remarked, that process of this kind ordinarily passes from the justice directly to the officer, and there is nothing in this case to indicate its possession by any intermediate person. Now if the justice made the erasure before delivering the process, it was unquestionably in due form, and valid. If the officer made it while in his hands, he could not thus defeat his liability. And if a stranger did it while in the officer’s hands, it was a mere spoliation, and not an alteration, (1 Greenl. Ev., § 566;) and if done after it had been returned to the justice, the liability was already fixed, and could not be affected thereby. The probabilities as to time and person, are within these four suppositions; and in neither is the liability taken away from the officer. Finally, it may be remarked, that the question as to the time, and the party making any alteration, is, in the last instance, one for the jury.' It is like any other fact in the case, to be settled by the triers of facts. We do not mean that it is not the right and duty of the court in the first instance to determine whether the alteration is so far accounted for as to permit the instrument to be read in evidence. Where there are manifest circumstances of suspicion, and no explanation given, it may be the duty of the court to refuse to let the instrument go before the jury; but where there are but slight circumstances of suspicion, or an explanation is tendered which is doubtful, then the court should permit the instrument to go iu evidence, and submit to the jury under proper instructions ■the question as to the time when and the person by whom the alterations were made. The time and the circumstances of .an alteration are matters of fact, and not of law.
The judgment of the district court will be reversed, and .the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Plaintiff in error, as plaintiff below, filed its petition in the district court on the 25th of August 1874, against defendants Abraham Cook, Elenah Cook, and H. E. Westerman, to foreclose a mortgage on certain real estate situate in an addition to the city of Paola, Miami county, the Cooks being the mortgagors, .and Westerman holding a second mortgage on the same property. The Cooks made default, though they were duly served with summons. The petition sets forth a copy of the mortgage, that the plaintiff was an incorporated life insurance company, duly incorporated under the laws of the state of Missouri, and duly authorized to transact business in the state of Kansas, and to loan money on real-estate security, having fully complied with the laws of the state of Kansas relating to foreign insurance companies, and being duly authorized to transact business in said Miami county; that it had been compelled to pay certain taxes on the mortgaged premises to save its lien and security; that the defendant Westerman had or claimed to have some interest in the mortgaged premises, but the exact nature of which the plaintiff was not acquainted with, but averred that it was subject and inferior to the lien of plaintiff; and in addition, the petition contained the usual averments of the nonpayment of the note, taxes, etc. Westerman •filed her answer on the 5th of October 1874. This answer contained no general denial, but alleges the execution by Cook of a note to her, and the execution of a mortgage by both Cooks, on same property which had been mortgaged to plaintiff, to secure said note. Her answer further averred, “that the said mortgage sued upon by plaintiff in this action was null and void, and of no force and effect; that prior to the making of said mortgage by the said Abraham Cook and Elenah Cook, neither of said parties was indebted to said plaintiff, and that said mortgage was not given to secure any' preexisting debt; that said plaintiff was a foreign life insurance corporation, and- as such had no legal capacity to loan money and take mortgage security therefor, in the state of Kansas, or to take, hold, and receive a mortgage for the security of money so loaned in the state of Kansas at the time of said loan, and especially that said plaintiff had no legal capacity to take and receive and hold the mortgage herein sued upon in this action; that said plaintiff was not authorized to loan money in the state of Kansas; that said plaintiff had no legal capacity to transact any business within this state; that said plaintiff had no authority and no legal capacity to loan money in the state of Kansas, and take mortgage security therefor, at the time of the transaction of said loan.” This answer was not verified, and to it plaintiff for reply filed a general denial.
The pleadings showed that the mortgage given by the Cooks to the insurance company was dated 10th January 1873, and filed for record the same day at 4-J o’clock p. m. The mortgage to Westerman was executed the same day, but not filed for record until March 18th 1873. On the hearing of the cause, at the December Term 1874 of the district court, after a motion for judgment on the pleadings, filed by the plaintiff, had been overruled, the case was tried by the court, a jury having been waived, and personal judgments were rendered against defendants Cook in favor of plaintiff and Westerman, and the decree ordered the mortgage property to be sold to satisfy such judgments, but provided that the proceeds of the sale should be brought into court to abide its further order. Afterward, on the 5th of June 1875, on the application of both plaintiff and Westerman, the court tried the issues between them, as to the priority of their respective mortgages. Upon this trial the court found that “the mortgage of the plaintiff was null and void, and no lien upon the real estate described in its petition, and that Wester man’s mortgage was .a first and valid lien on said real estate, and thereupon ordered, adjudged, and decreed that Wester man’s mortgage was a first lien on said premises, and should be first paid out of the proceeds of said sale, and was prior to that of the plaintiff, and that the mortgage of the plaintiff was null and void as against the mortgage of the said H. E. Westerman.” To all of which plaintiff duly excepted.
No testimony was offered by either party at any stage of the proceedings in the case, except the exhibits attached to the respective pleadings, and on the part of the plaintiff the original tax redemption certificate, and the original renewal premium receipt for insurance on the mortgaged premises. Upon what basis the court held the mortgage of the insurance company null and void, in view of the pleadings, we are at a loss to determine; and the defendants in error have not thought it wise, or at least necessary, to enlighten us. No brief or other argument has been filed or presented in their interest. No issue whatever was presented in the pleadings between the insurance company and Westerman, as the answer of the latter did not deny the allegation of the petition, that her mortgage was subject and inferior to the lien of the insurance company. And the copies of the two mortgages evidenced this statement. Neither was any defense properly pleaded to the first or prior mortgage; and the court below would not have committed any error in sustaining the motion for judgment on the pleadings in favor of the plaintiff. Gaylord v. Stebbins, 4 Kas. 42; Douglas v. Rinehart, 5 Kas. 393; Reed v. Arnold, 10 Kas. 103; School District v. Carter, 11 Kas. 445. Certainly, in view of the evidence and" the condition of the cause at the June Term 1875, from whatever point it is judged, the district court had no right to de clare the plaintiff’s mortgage null and void, and no lien upon the real estate therein described; nor could it rightfully decree the Westerman mortgage a first lien on the premises. All of these rulings were erroneous, and demand a reversal at our hands.
If the district court assumed the question was raised, that under the laws of this state the plaintiff had no right to take a mortgage concurrently with the loan, in order to secure it, and was only authorized to take mortgages “by way of security for loans previously contracted, or for moneys due,” (and we consider the judgment in this light,) then we must hold the various provisions of our statutes relating to the powers of life insurance companies were wrongly construed. The law concerning insurance companies in force at the execution of these mortgages was ch. 93, Laws of 1871, pp. 214,249. Sec. 71 provides, that—
“No insurance company, organized under the laws of this state, shall be permitted to purchase, hold, or convey real estate, excepting for the purpose and in the manner herein set forth, to-wit: First, such as shall be requisite and convenient for its accommodation in the transaction of its business; or second, such as shall have been mortgaged in good faith by way of security for loans previously contracted for moneys due; or third, such as shall have been conveyed to it in satisfaction of debts previously contracted in the course of its dealings; or fourth, such as shall have been purchased at sales upon the judgments, decrees, or mortgages obtained or made for such debts.”
But this must be construed in connection with section 54 of the same chapter, to the effect that, “any life insurance company * * * may * * * purchase or invest, by loan or otherwise, any of their funds in bonds, or notes and mortgages, on unincumbered real estate worth fifty per cent, more than the sum loaned thereon,” etc., (and see sections 47, 48 and 49 of the act.) Recollecting that under our laws a mortgage is a mere security, creating a lien upon the property but vesting no estate whatever, either before or after condition broken, subdivision 2 of sec. 71, above quoted, read in connection with the other sections quoted, and the first part of said section 71, is a prohibition only against purchasing, holding, or conveying real estate, except such as shall have been mortgaged in good faith by way of security for loans previously contracted, or for moneys due. In the language of the counsel for the plaintiff, we reach the conclusion, “ that the very existence of an insurance company depends upon its investing its funds, so that it may be enabled to meet its accruing liabilities upon its policies. The very theory of life insurance is based upon a nice calculation, that a certain fund, invested at a certain rate of interest, will meet the losses occurring on a certain number of insured lives;” and in this state, the prohibition against such a company purchasing, or holding real estate, stated in said subdivision 2 of section 71, “is against purchasing, holding, or conveying. The exception is, that it may purchase, hold, etc., such land as had previously been mortgaged to it in good faith, if the mortgage was due; the word previously affecting and relating to the time oí purchasing, holding, etc.” Silver Lake Bank v. North, 4 Johns. Ch. 371. The case of the Kansas Valley National Bank of Topeka v. Rowell, 2 Dillon C. C. Rep. 371, is no authority in this case, because the provisions of the national banking act, relating to the loaning of money and taking security therefor, are materially different from the sections of the Kansas insurance act of 1871. The former act provides that no other security than personal can be taken for money lent. Fowler v. Scully, 72 Penn. St. 456. The latter authorizes loans to be made on real estate. In this case, if defendant Westerman wished to raise by her answer the question that the loaning of money by the plaintiff to Cook on real-estate security in Kansas was ultra vires, and forbidden, she should have pleaded its charter, or the laws of the state where it was organized, or both such charter and laws, and on the trial produced the same in evidence.
The judgment of the district court of the June term 1875 must be reversed; and such court is directed to carry into effect its decree of December 1874, so far as to have the judgments therein rendered duly enforced, and to adjudge the mortgage of plaintiff a first and prior lien to that of Westerman, and order that from the proceeds of the sale of the mortgaged premises the judgment of plaintiff be paid in full, including interest, taxes, attorney-fees, and costs, before any of the proceeds of the sale shall be applied to the judgment of the said Westerman.
Valentine, J., concurring.
Brewer, J., not sitting in the ease. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on account, tried before a justice of the peace, and brought to the district court by Mongold on appeal. In plaintiff’s bill of particulars were the following items, among others: “October 1873, to cash, $19.00; July 1874, cutting 32 acres grass, $24.00; May 1874, 64 feet lumber, (wagon bed,) $1.60; June 1874, 65 feet lumber, pine, (wagon bed,) $3.25; October 1874, potato crop, $15.00; December 1874, shocks of corn-fodder, $5.00.” Other items were for labor, etc.; and the whole claim amounted to $109.55.
At the trial in the district court, when the plaintiff introduced his testimony as to the two items above named as for “potato crop” and “shocks of corn-fodder,” it appeared that they were for damages done to his property by defendant’s stock. There was no testimony tending to show that the defendant had promised to pay for the same, or had realized money, or money’s worth, therefrom. The defendant objected that the testimony was irrelevant, and showed a misjoinder of causes of actions, some on contract, others in tort. The court overruled the defendant’s objection, to which ruling the defendant duly excepted, and now brings the case here for review.
The question is presented, whether Mongold could waive the tort or trespass committed by the cattle of Tightmeyer to his personal property, and sue on contract? Could he elect between an action ex delicto, and one ex contractu, for the damages to his crops? It is a familiar rule of law, that a promise may be express, or implied. Whenever a promise is implied, and the consideration is sufficient, an action on contract may be maintained. The whole discussion of waiving the tort and suing on the contract is reduced to the single question, When is a promise implied by the law? “It is a principle well settled,” says the court in Webster v. Drinkwater, 5 Greenl. 322, “that a promise is not implied against, or without, the consent of the person attempted to be charged by it. And where one is implied, it is because the party.intended it should be, or because natural justice plainly requires it, in consideration of some benefit received.” Within this rule, the weight of authority seems to be, that when goods or things have been wrongfully taken or converted, whether sold or disposed of, or not, by the wrongdoer, the tort may be waived, the transaction treated as a sale, and an action maintained upon the implied promise to pay the price or value of the goods. Pomeroy on Civil Remedies, §§ 567, 574; Putnam v. Wise, 1 Hill, 240, and notes; Berly v. Taylor, 5 Hill, 584; Gordon v. Bruner, 49 Mo. 570. This doctrine is in consonance with reason and justice, and meets our approval. In such a case, the wrongdoer ought not to be permitted to say in defense, that he obtained the property wrongfully. But in our examination of authorities, we have found no case supporting the, theory of the court below, that where damages have been committed by one’s cattle to the crops or personal property of another, without the owner’s participation in the trespass, or benefit therefrom, and in the absence of any promise, that the party injured in his property could waive the tort and recover his damages in an action on contract. That is this case. Therefore, when it appeared that the items in the account of Mongold charged as “potato crop” and “shocks of corn-fodder” were for damages done to his potatoes and corn by the stock of the plaintiff in error, and no promise to pay for the damage was shown, nor any participation by plaintiff in error in the trespass, or benefit to him, the district court should have sustained the objection to the evidence as irrelevant and incompetent. Its failure to do so was error. If the plaintiff in error had committed a willful trespass upon the land of the defendant in error by deliberately turning his stock thereon, in order that they might feed upon the potatoes and corn-fodder, the defendant in error, within the rule adopted in Wisconsin, might have waived the tort and sued upon an implied contract for the price and value of his j)otatoes and fodder. This proof was not made, and this case is not within that decision. Worden v. Jones, 33 Wis. 600. From the testimony, no implied promise was shown, and the transaction or trespass cannot be treated as a sale for which an action of contract, brought as upon an account for the value of the potato crop and corn-fodder, can be upheld.
The judgment must be reversed for the error committed in admitting incompetent testimony, prejudicial to the plaintiff in error, and the case will be remanded for a new trial.
All the Justices concurring. | [
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