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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by James Sexton against Z. B. Reed and Richard Reed, for trespasses alleged to have been committed by the defendant’s cattle upon the plaintiff’s crops. The action was commenced before a justice of the peace, and after judgment in that court was taken on appeal to the district court. Afterward Sexton died, and George W. Sexton and Milberry Sexton were appointed administrator and administratrix of his estate. Afterward the administrator and administratrix filed a petition in the case in the district court, reciting all the foregoing facts (and more too) in detail, giving the plaintiff’s original bill of particulars in full, and asking, that the action may be continued by them, and “that they may have their judgment against the said defendants for-the sum of $100, and costs of suit.” The defendants demurred to this petition on the ground that it did not state facts sufficient to constitute a cause of action. But the court below, rightfully as we think, overruled the demurrer. The defendants then answered, by filing a general denial. This answer was not verified by affidavit, and of course did not put in issue the allegations of the petition, that the plaintiffs were appointed and had authority to act as administrator and administratrix. (Gen. Stat. 650, civil code, § 108.) A trial was had upon this petition and answer before the court and a jury. No objection was at any time made that the original action had not been revived in the name of said administrator and administratrix. Evidence was introduced' by the plaintiffs; and when the plaintiffs rested, the defendants demurred to the evidence, on the ground that' no cause of action was proved. This demurrer was rightfully overruled, as we think. The court then instructed the jury, that;—
“If the jury believe from the evidence that the stock of the said defendants trespassed upon the premises of the said plaintiffs, as alleged in their petition, they will find for the plaintiffs, and assess whatever damages the plaintiffs have proven to have sustained 'by reason of such trespasses, if any, after the 19th of April 1872, and before the comme7icement of this suit.”
A verdict was returned in favor of the plaintiffs and against the defendants for $45. The defendants moved for a new trial, on the grounds that the verdict was “contrary to law,” and “not sustained by sufficient evidence,” and “error of law occurring at the trial and excepted to by the defendants.” This motion was overruled, as we think it should have been, and judgment was rendered in accordance with the verdict. The defendants below, as plaintiffs in error, now bring the case to this court, and ask that said judgment be reversed, on the grounds that the court below erred in overruling said demurrers, and said motion for a new trial, in giving said instruction, and in giving judgment for the plaintiffs below when as they claim it ought to have been given for the defendants below.
1. Revivor of actions; waiver. 2. Pleading; allegations not denied on oath. We do not think that any substantial error was committed. In response to the various points made by counsel for plaintiffs in error in their brief, we would answer as follows: The petition below evidently stated a good cause of action in favor of the plaintiffs and against the defendants. The << case _ macje ” brought to this court does not show that the action was not revived in the name of the plaintiffs below, or that it was not revived in the most formal and ceremonious manner. But even if it was not formally revived, still the defendants waived the same by answering to said petition, and by going to trial thereon without ever raising any question concerning the revivor of the action. And they cannot now for the first time raise any such question. That the plaintiffs were administrator and administratrix, was admitted by the pleadings, and was probably also proved. The “case-made” shows that the plaintiff, after introducing certain evidence, “then proved” “that the plaintiffs” [not “the deceased,” as stated in the brief of counsel for plaintiffs in error,] “had sustained damages as stated in the said petition of the said plaintiffs,” [not, as stated in the bill of particulars of the deceased.] The plaintiffs could not have sustained damages as stated in their petition in any other manner than as administrator and administratrix; and hence, as they proved that they sustained damages in that manner, they must necessarily have proved that they were administrator and administratrix. This is- meeting a very technical point made by counsel with an answer equally ob jectionable. The cjuestion as to whether the plaintiffs were administrator and administratrix was really not in issue, (civil code, § 108,) and therefore there was no necessity for making any proof concerning the the same. The petition alleged that said trespasses and damages were committed after the 1st of May 1870 and before the commencement of this suit, which was on 22d May 1873. And, according to the "case-made," the damages were proved just as they were alleged. That is, damages were proved, as well as alleged, to have been committed both before and after April 19th 1872. The court however instructed the jury to find for such of said damages only as were sustained after 19th April 1872, and we must presume that the jury obeyed the instructions of the court.
- Counsel for plaintiff in error also make the following point:
"The [herd] law could go into effect only after the pub-. lication of the order [of the board of county commissioners] for fQur consecutive weeks, (Laws 1872, page 384, oh. i 93, § 2,) a compliance with which would require five insertions in the paper, whereas the evidence shows that there could have been but four, commencing March 21st, and ending April 11th 1872. It has been decided by this court that this law could not have been put in force under this identical order, as early as April 12th, for want of time to make the publication.; and yet the testimony clearly shows that the last publication was made on April 11th. (Hoover v. Mear, 16 Kas. 11.) The publication was therefore entirely insufficient, and the law never went into effect."
Of course, the herd law can go into practical operation in any particular county only after an order of the board of county commissioners to that effect has been published for four consecutive weeks. But when this order is published in a weekly newspaper, it is not necessary that the order should be inserted in such paper five tithes. Four insertions are all that are necessary. If it should be inserted in such paper on March 21st, and 28th, and on April 4th, and 11th, it would be sufficient, and the law would then go into operation in such county on the beginning of the 18th day of said April. That is, the order must be published in every issue of the paper from the first insertion to the last, and need be published only four times. Of course, the four weeks would not end on the day of the last publication. They would end only on the day next preceding the fifth issue of the paper. They would end on the 28th day after the first publication. If the first publication were on Thursday, they would end on the fourth Wednesday following. The law would take effect on the beginning of the 28th day after the day on which the first publication was made; or, on the beginning of the fifth Thursday, if the first publication were on Thursday. In the computation of the time, one day, either the first or the last, is included, and the other is excluded. Four weeks cannot have five Thursdays, or five of any of the other days of the week. As to the proper manner for the computation of time, see Dougherty v. Porter, 18 Kas. 206; Mound City Mutual Life Ins. Co. v. Twining, 19 Kas. 376, 377. We think the publication of said order in the present case was sufficient.
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
Horton, C. J.:
The facts in this case were, that on 19th November 1874, an attachment was levied upon certain personal property belonging to I. N. Morris by the creditors of one Thos. L. Morris, as the property of said debtor. Geo. N. Moses, as sheriff, served the writ. Afterward judgment was obtained in the action; and on 13th January 1875 an order of sale was issued to said Moses as such sheriff, and on January 25th he sold at sheriff’s sale the said personal property to one C. F. Diffenbacker, to whom the property was then delivered, and who then took actual possession and control of the same. Thereafter sheriff Moses had no interest in the property, nor care over it. On February 10th, the defendant in error, I. N. Morris, instituted in the district court of Barton county an action of replevin to obtain the possession of said pi’operty, and made said Moses and Diffenbacker the defendants. Prior to the sheriff’s sale of the property, (January 25th,) a demand had been made by I. N. Morris of the sheriff for the property, and after the sale to Diffenbacker a like demand for its possession was made upon him. The defendants answered jointly, filing a general denial. On the trial, a j udgment was rendered in favor of Morris, plaintiff, against both defendants, for a return of the property in controversy, and in case the property could not be delivered back, then for the sum of $75, the value of the property, and also for $85 for damages sustained by the wrongful detention of said property, together with all costs. The defendant Moses filed his motion for a new trial, on the grounds, among others, that the verdict of the jury was not sustained by the evidence; that the special findings of the jury did not sustain the verdict, and for errors of law occurring on the trial and excepted to. The jury, at Moses’ request, also made special findings, as follows:
(Jwes.-Did G. N. Moses, as sheriff of Barton county, have the property in controversy in his possession at the' commencement of this action ? Ans.-No.
Ques — When did G. N. Moses sell said property? Ans — On the 25th of January 1875.
Ques — To whom did he sell? Ans.-To C. F. Diffenbacker.
§Mes.-Who took possession of and moved said property? Atis.-C. F. Diffenbacker.
Ques. — Did the-plaintiff demand said property of C. F. Diffenbacker before the commencement of this suit? Ans.— Yes.
The motion for a new trial was overruled, and the case is here for review.
The district court erred in not sustaining the motion for a new trial, as the evidence in the case and the special findings of fact were all against the verdict. On the 10th of February 1875, when the action of replevin was commenced by the defendant in error, the plaintiff in error was not wrongfully detaining the possession of the property sued for, as he then had neither the actual nor constructive possession of the same; neither did he have such possession conjointly with his co-defendant Diffenbacker;- nor was there any joint detention by him with Diffenbacker. After the sale of January 25th, Moses had nothing whatever to do with the., property, and was indifferent to it. All the evidence was one way. There was no conflict, and no variance.
The action of replevin under the code is purely a statutory one, and the writ cannot issue without the affidavit of the party, or his agent or attorney, showing the property is wrongfully detained. If a defendant, in good faith, and prior to the commencement of the action, has parted with all legal and actual possession of the property sought to be recovered, and the.party suing out the writ has notice of such fact, (as in this case,) certainly he would not be justified in swearing that such party, simply because he once had the possession, was still wrongfully detaining the same. If so, the wrongful detention might ante-date the suit many months, even years. Without either actual or constructive possession, there is no power to deliver the property; and in the absence of such possession, it cannot be said that a defendant -wrongfully detains the property. He may have committed acts which make him liable in damages; and he may be liable for the value or use of the property in an action of another form; but the action of replevin is not the proper remedy in such instances. Town of Leroy v. McConnell, 8 Kas. 273; Wilson v. Fuller, 9 Kas. 176; Yandle v. Crane, 13 Kas. 344; Brown v. Holmes, 13 Kas. 482; Ladd v. Brewer, 17 Kas. 204; Bogan v. Stantenburgh, 7 Ohio, 474; State of Ohio v. Jennings, 14 Ohio, 73. Upon the undisputed facts in the case, no judgment should have been rendered against the plaintiff in error.
The counsel for the defendant in error has referred to Nichols v. Michael, 23 N. Y. 264, as conclusive; but we find upon examination of the case that all the court really decided therein, upon this point, was, that the fraudulent vendee of goods, and his assignee thereof for the benefit of creditors, are liable in a joint action by the vendor to recover possession. “In this view of the case,” say the court, “an action properly laid against the vendee, Primer, notwithstanding he had assigned and delivered the property to Michael. Michael was not a bond fide purchaser; the property was in his custody as trustee for the benefit of Primer’s creditors, Primer having an interest in the residuum after paying his debts.” The case at bar is not a parallel one with Nichols v. Michael, supra, and this decision is not in conflict therewith. Holding the general rule to be, that an action to recover the possession of personal property can be maintained only against him who has the actual or constructive possession of the same at the commencement of the suit, and there being no special circumstances taking this case out of this rule, the judgment of the district court against the plaintiff in error must be reversed, and the case remanded.
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The opinion of the court was delivered by
Valentine, J.:
Where due notice of the time and place of settling and signing a case-made for the supreme court has been given to the adverse party, such party cannot ignore such notice, or treat it as a nullity, although the time fixed in such notice for settling and signing such case may be earlier than the ease could properly be settled and signed. (Nelson v. Becker, 14 Kas. 509, 510, and cases there cited.) And where the judge of the court, in the absence of the adverse-party, and without any objection from him or from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the supreme court will, in the absence of other irregularities, treat the case as valid.
A finding made and entered in the case-made by the judge while settling and signing such case, showing that such notice has been given, is sufficient evidence, prima facie, -to prove the fact that such notice was given. (Haynes v. Cowen, 15 Kas. 637, and opinion of Brewer, J., p. 645, 646.)
The defense of usury cannot be set up against a negotiable promissory note while in the hands of an innocent indorsee who purchased the same before maturity. (Day v. Walker, 16 Kas. 326, 332; Holden v. Clark, 16 Kas. 346; Rahm v. Bridge Co., 16 Kas. 530; Mechanic’s Bank v. Crow, 66 N.Y. 85; Cicot v. Gagrin, 2 Mich. 381; 1 Hill. on Mort. 574; 1 Pars. Notes, 279, 280; Gen. Stat., ch. 14, §3.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by James Clayton against School District No. 1 of Barton county, for the recovery of lot No. 9 in block No. 89 in the city of Great Bend. The plaintiff in his amended petition alleged that he was the owner in fee simple of said was entitled to the possession thereof, and that the defendant unlawfully kept him out of the possession. The defendant in its answer denied that the plaintiff was the owner of said property, as alleged in the plaintiff’s petition. Upon this petition and answer a trial was had; judgment was rendered for the plaintiff; and afterward a new trial was granted under section 599 of the code. A second trial was afterward had; and at this second trial the proceedings occurred, of which the plaintiff below, as plaintiff in error, now complains.
The second trial was had before the court without a jury, and was commenced on the above-named pleadings. The plaintiff intooduced the following evidence, to-wit: a patent from the United States, conveying to A. A. Hurd, mayor of the city of Great Bend, the town-site of Great Bend, in trust for the occupants thereof, dated 18th December 1872; a report of three commissioners appointed by said mayor awarding-said lot No. 9, among other lots in said town-site, to the Great Bend town company, dated 2d February 1874; a deed from said Mayor Hurd, conveying to the Great Bend town company said lot, among others, dated 25th March 1874; a deed from John T. Morton, president of the Great Bend town company, conveying said lot to the plaintiff, James Clayton, for the expressed consideration of one dollar, and dated 5th November 1875. The plaintiff then rested. The defendant then with leave of the court filed a new and amended answer. This amended answer contained two counts. The first denied specially the plaintiff’s title and right of possession, and also denied generally all the allegations of the plaintiff’s petition. The second count set forth facts entitling the defendant to affirmative equitable relief. But it can hardly be said that the answer prayed for any kind of affirmative relief. “The plaintiff then moved [the court] to strike out all of said answer except the general and special denials of title, for the reason that said amendments changed substantially the defense.” The court overruled said motion, and the plaintiff excepted, and now assigns such ruling for error. This is the first ruling of the court below of which the plaintiff now complains. After said motion was overruled, the plaintiff replied to the defendant’s amended answer, denying generally all the allegations therein contained. The trial then proceeded. The defendant introduced evidence tending to show that in the fall of 1872, J. L. Curtis, the then president of the Great Bend town company, by parol, and by a letter, donated said lot, along with other lots, to said school district; that said school district immediately took possession of said lot, and in 1872 commenced to build a school-house thereon, which it completed in 1873; that the school district has ever since been in the actual possession of said lot, and that both the Great Bend town company and the plaintiff had full and continuous knowledge of all of the defendant’s equities in and to said lot. The plaintiff objected generally to all of this evi dence,* and objected specially to portions thereof; and at the close of the trial moved to strike it all out. After the defendant introduced the foregoing evidence, the plaintiff introduced rebutting evidence, and the defendant then introduced surrebutting evidence. The court upon all the evidence introduced found in favor of the defendant, and rendered judgment accordingly, but did not render any judgment granting to the defendant any affirmative relief. The only judgment rendered in favor of the defendant was as follows: “It is therefore considered that the said School District No. 1 of Barton county, go hence without day, and recover of the said plaintiff its costs in and about its suit in this behalf expended, taxed at $-.” The plaintiff excepted to this judgment. “The plaintiff then made an oral motion for a new trial, for the reasons, first, for errors of law occurring at the trial and excepted to by the plaintiff; second, that the judgment was contrary to law; third, that the judgment was contrary to the evidence;' fourth, that the judgment was contrary both to law and.the evidence.” Said motion was overruled, aud the plaintiff excepted.
We cannot say from the foregoing facts that the court below committed any material error.
I. The motion of the plaintiff to strike out a portion of the defendant’s amended answer was evidently aimed at the second count. Now said count might properly have been stricken out for immateriality, but it could not properly have .been stricken out because it “changed substantially the defense.” It did not “change substantially the defense.” Anything that could have been proved under it might have been proved under the general denial pleaded in the first defense. Everything that was in fact proved on the trial might have been proved under said general denial. And no relief was granted that could not have been granted under said general denial. In this state a defendant may, for the purpose of defeating the plaintiff’s action in ejectment, show, under a general denial, a paramount title in himself, provided this title carries with it the right of possession, whether his title to the property in question is legal, or equitable, and whether the plaintiff’s title to such property is legal, or equitable. (Hall’s Heirs v. Dodge, 18 Kas. 277; Wicks v. Smith, 18 Kas. 508.) Under the statute the plaintiff must “state in his petition that he has a legal or equitable estate” in the property in controversy, and that he “is entitled to the possession thereof,” “and that the defendant unlawfully keeps him out of the possession” thereof. (Gen. Stat. 747, § 595.) The statute also-provides, that “it shall be sufficient, in such action, if the defendant, in his answer, deny generally the title alleged in the petition, or that he withholds the possession, as the case may be; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted.” (Gen. Stat. 748, § 596.) Under this statute, it will be seen that the defendant has a choice between two kinds of denial: 1st, he may deny generally the plaintiff’s title; or, 2d, he may deny specially that he, the defendant, withholds the possession of the property. By the former, he evidently denies all the material allegations of the plaintiff’s petition, except that he is in the possession of the property, and that he withholds the same from the plaintiff. By the latter, he virtually does nothing more than to enter a disclaimer to the property. By the former, he denies, (1st,) that the plaintiff has any such “legal or equitable estate” in the property in controversy as the plaintiff has set forth in his petition; (2d,) he denies that the plaintiff “is entitled to the possession” of the property; (3d,) and he denies “that the defendant unlawfully keeps him [the plaintiff] out of the possession” of the same. And, although the defendant, by this plea of general denial of title, admits that he, himself, is in the actual possession of the property, that he keeps the plaintiff out of the possession of the same, and withholds the same from the plaintiff, yet he does not admit that his possession is either wrongful or unlawful. And neither does he admit that the plaintiff has any right thereto. ■ Hence, under an ordinary petition in this kind of action, and a general denial of the plaintiff’s title, the plaintiff must prove, first, that he has the estate in the property which he alleges he has; second, that he is entitled to the immediate possession of the property, and third, that the possession of the property by the defendant is unlawful; and if he should fail in any one of these three particulars, he would necessarily fail in the action. Although the plaintiff might hold the legal title to the property in controversy, yet, if it were shown that the defendant held the paramount equitable title thereto giving to the defendant the right to the possession thereof, the plaintiff would necessarily fail in the action. The plaintiff’s cause of action is more immediately founded upon an infringement of his own right to the possession of the property than upon anything else. Of course, title in the plaintiff, is material in the action; but it is material only as being the basis of the plaintiff’s right of possession. The cause of action really consists in an infringement of a right of possession founded upon an estate legal or equitable. Hence it devolves upon the plaintiff, not only to show that he has an “estate” in the property in controversy, but it also devolves upon him to show that he has a right to the immediate possession thereof, and that the defendant has violated that right by unlawfully withholding the possession from him. This action is peculiar. There is no other action like it. The action of replevin for the recovery of personal property, comes nearest being like it. But even that action is not like it in all particulars. The plaintiff’s petition in this kind of action is short, being couched in the most general terms. It merely alleges the plaintiff’s estate, legal or equitable, his right of possession, and the defendant’s wrongful possession. The statutes provide in terms, that “it shall not be necessary to state how the plaintiff’s estate or ownership is derived.” (Gen. Stat. 748, § 595;) and all that is necessary for the defendant to do is, to “ deny generally the title alleged in the petition.” Upon these pleadings, which would not together require a single page of legal cap upon which to write them, the parties may show anything that would tend to prove or disprove the plaintiff’s cause of action. Upon these pleadings the defendant may always show that he has an equitable title to the property in question, provided always that such equitable title is paramount to the plaintiff’s title, and. provided further, that it gives to the defendant the right to the possession of the property; for, in all such cases, such evidence would tend to disprove the allegations necessarily contained in the plaintiff’s petition that the plaintiff “is entitled to the possession” of such property, “and that the defendant unlawfully keeps him out of the possession.”
II. The plaintiff alleges error in the admission of evidence. Now it has already been held in this court, that “in a case tried before a jury, a motion for a new trial must be filed within three days from the incoming of the verdiet, unless good reason be shown for the delay, or errors alleged in the progress of the trial in the admission of evidence, etc., will be deemed to have been waived.” (Fowler v. Young, 19 Kas. 150.) We suppose the same rule will apply where the case is tried by the court without a jury. And the statute provides that “the application [for a new trial] must be by motion upon written grounds, filed at the time of making the motion.” (Gen. Stat. 688, § 309.) No “motion upon written grounds,” asking for a new trial, was ever “filed” in this case. It must be remembered that one new trial had already been granted in this case, and that the questions we are now considering arise upon a motion for a second new trial; and that motions for a second new trial in actions of ejectment are governed by the same rules which govern applications for new trials in other actions. (Gen. Stat. 748, § 600.) But passing over this question, we do not think that the court below erred in the admission óf evidence. The defendant had a right to prove its equitable defense under its general denial. And in doing so, and as a part of the proof of such equitable defense, it had a right to prove that J. L. Curtis was president of said town company, and that he donated by parol said town lot to the defendant. These two facts taken alone would not constitute any defense to the plaintiff’s action; but taken in connection with the other facts, they would. We shall discuss the sufficiency of the facts hereafter.
III. The material facts of this case, so far as it is necessary to state them, are substantially as follows: On 18th December 1872, the lot in controversy was a part of the town-site of the city of Great Bend, and was at that time in the possession and occupancy of defendant school district, which was ^en building a school-house thereon. The title to said lot was then in the United States. But on that day the United States issued a patent conveying said town-site to A. A. Hurd, mayor of Great Bend, in trust for the several occupants of said town-site. The defendant was at that time and has been ever since an occupant of said lot. The evidence does not show that any person or corporation except the defendant ever occupied said lot, and probably no person or corporation except the defendant ever did so occupy the same. The lot was probably vacant and unoccupied when the defendant took possession thereof and commenced to build its said school-house thereon, and probably had always been so vacant and unoccupied up to that time. The defendant however took the possession of said lot as a donation from the Great Bend town _ company, made by its then president, J. L. Curtis. Probably however the town company had nothing at that time to donate. Certainly it had nothing like a legal title to said lot. And if it had anything like an equitable title, the plaintiff has failed to show it.. There is nothing in the case that shows that the town company was ever an occupant of said lot, or that it had any interest in the lot under any person who was an occupant. But suppose, for the purposes of the case, that the town company had at the time that Curtis made said donation some equitable interest in said lot; still we think the same result must follow. Curtis, for the town company, donated such supposed equitable interest to the defendant. But the plaintiff claims that Curtis, as president of said town company, had no power to make such donation. And yet the plaintiff’s whole title is founded upon a'deed executed by another president of said town company for the nominal consideration of “ one dollar.” Probably both presidents had the power which they assumed to exercise. But taking said donation by president Curtis, with the subsequent acquiescence and consequent ratification of the town company during the time that the defendant was building its said school-house, and altogether we think that they would be sufficient to transfer to the defendant any supposed equitable title or interest which said town company might have had in said town lot. On 25th March 1874, said mayor conveyed the legal title to said lot to said town company; and on 5th November 1875 said town company, through its president, conveyed the legal title to said lot to the plaintiff; and from the evidence we think the plaintiff holds the legal title to the lot in trust for the defendant.
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
Hortón, C. J.:
It is alleged in the brief of plaintiff in error, that this action was originally brought before a justice of the peace for the possession of a horse, and that the plaintiff in error, before such justice, recovered judgment, and upon appeal to the district court judgment was given for defendants in error. The judgment in the record is for a return of the property to the defendants in error, if a return thereof can be had, and if a return thereof cannot be had, for the value of the interest of defendants, to-wit, two dollars, and for the costs. But while the testimony, and the conclusions of fact and law, are preserved in the record, and the judgment and motion for a new trial are also contained therein, the pleadings are not. Neither is there any statement of their purport or substance. Nor can we tell what issues were raised by them, nor the admissions made in them. Eor manifest and manifold reasons, with such a record, the judgment of the court must be affirmed. The alleged errors attempted to be presented, are, the admission of incompetent testimony in behalf of the defendants, that the judgment for two dollars was not supported by the evidence, and that the court had no right to adjudicate a lien in the action. In the absence of the pleadings, and any statement of what they contain, we cannot say whether any substantial error was committed. Ort v. Patrick, 18 Kas. 382.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the state corporation commission and the intervenor from the trial court’s judgment reversing, vacating, and setting aside a previous order by the commission unitizing and pooling plaintiff’s 160 acres of land with three other quarter sections which were neither contiguous nor adjoining to plaintiff’s land nor with each other. The lands so unitized by the commission’s order were also attributed to one of five wells drilled by the intervenor, as producer.
The intervenor filed an application seeking allowables for five wells it had drilled in the Greenwood gas field. The one involved in this appeal is the Knoeber “A” well No. 1. The acreage sought to be attributed to this well consisted of the southeast quarter, section 19, southwest quarter, section 23, southeast quarter, section 27, and northwest quarter, section 33, township 32 south, range 42 west, all in Morton county. Since none of these quarter sections was contiguous or adjoining the application sought an order of the commission providing for an exception to paragraph “e” of the Greenwood basic proration order for the Greenwood gas field which contains the same provisions as paragraph “g” of the basic proration order for the Hugoton gas field, the subject involved in No. 41,102, Day v. State Corporation Commission, 185 Kan. 165, 341 P. 2d 1028, and Stevens v. State Corporation Commission, 185 Kan. 190, 341 P. 2d 1021, this day decided.
Intervenor’s application asked for the cause to be set down for hearing and that notice thereof be given as required by law but it did not contain plaintiff’s name, residence, or address as an interested party notwithstanding he had had correspondence with intervenor regarding his 160 acres (southeast quarter, section 19), and intervenor had informed plaintiff that his land was not included in any unit.
On November 2, 1955, the commission ordered an exception to paragraph “e,” unitized the four tracts of land and attributed the land to Knoeber “A” well No. 1 to determine the allowable of that well for the purpose of gas production.
On April 3, 1956, plaintiff filed a verified petition with the commission wherein, among other things with which we are not presently concerned, the above correspondence was set out. This petition showed that plaintiff had no knowledge of the commission’s order of November 2, 1955, and that in December, 1955, his counsel had inquired by letter as to intervenor’s ■ plans and requested an opportunity to be heard on any application. He received no reply thereto and another letter was sent to intervenor. On or about January 4, 1956, intervenor informed plaintiff by letter of the commission’s order of November 2, 1955.
At the hearing before the commission on April 27, 1956, plaintiff through his counsel contended that his name was on file with the commission but whether such record was in the correct file of the commission to receive notice of this particular matter, plaintiff did not know. After a ten minute recess to give the commission members opportunity to confer, the chairman stated as follows:
“Gentlemen, during the recess the Commission has considered the problem which was presented just before recess and it is inclined to the view that this petition we are considering is more or less in the nature of a petition for a rehearing and therefore that it is out of time and the motion to dismiss should be sustained. On the other hand, the Commission is also aware of some of the allegations which are made in the petition, which is verified, and also considering the inherent power which is always in the Commission to revise any of these orders and retain jurisdiction over them, the Commission on its own motion will hear evidence concerning this docket number and will at some future time set it down for hearing either in connection with the hearings in Wichita or a special hearing in Topeka. We will consider that this petition will be dismissed for the reasons stated.”
The trial court’s judgment reversing, vacating, and setting aside this order was correct in accordance with the opinion and views expressed in the Day case, supra, and the trial court’s judgment in regard to the issues raised by the contents of plaintiff’s petition is affirmed in accordance with the opinion and views expressed in Stevens v. State Corporation Commission, supra.
Judgment affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action in which the heirs are attacking, the validity of a will on the ground that the testatrix was mentally incompetent , to make a will and the codicils thereto. Appeal has been duly perfected from an order of the district court upholding the admission of the will to probate and from an order overruling the appellants’ motion for a new trial.
The question presented is whether the appellants were denied a fair trial, either by the exclusion of evidence or by rejecting the testimony of a psychiatrist in finding against the appellants, which they contend was by reason of prejudicial, personal beliefs and feelings of the trial judge and contrary to reliable scientific evidence.
The instrument in question purporting to be the last will and testament of Carrie E. Millar, deceased, consists of the will proper which was executed May 5, 1945, and two codicils thereto, one executed August 15, 1952, and the other executed May 23, 1957.
The appellants, Billy Millar Kratzer and Lois Allen, were the sole and' only children of Cyrus Millar and Goldie Millar. Cyrus Millar was the sole and only child of Carrie E. Millar, the testatrix herein, and William (Billy) Millar, who died in 1940 leaving a sizeable estate to his widow, Carrie E. Millar, as sole beneficiary. Cyrus Millar and Goldie Millar were divorced in May, 1945, and in 1947 Cyrus died leaving a will, which was executed May 5, 1945, leaving a sizeable estate to his mother, Carrie E. Millar. The appellants herein contested their father’s will, but were unsuccessful, the matter having been considered by this court in In re Estate of Millar, 167 Kan. 455, 207 P. 2d 483.
Carrie E. Millar never remarried after . the death of William Millar in 1940 and lived alone in the family home at Pratt, Kansas, until her death on the 15th day of September, 1957. She left an estate consisting of extensive holdings of real property, corporate stocks, bonds, notes, mortgages, cash and other personal property of the appraised value of $265,659.09.
Throughout the years from 1945 until the date of her death she looked after her properties with the assistance of her attorney, George Barrett, her banker and friends. She received constant medical attention and when she signed the second codicil on May 23, 1957, she was in her eighties. Carrie E. Millar was eighty-six years of age when she died.
On the 18th day of October, 1957, the probate court of Pratt County, Kansas, entered an order admitting the last will and testament of Carrie E. Millar, deceased, to probate and declaring said last will and testament to be valid. On appeal from the above order to the district court of Pratt County, Kansas, the matter of Carrie E. Millars mental competence was tried de novo. The appellee, L. H. Moore, executor of the estate of Carrie E. Millar, deceased, in propounding the will presented fourteen witnesses who testified as to the mental competency of the testatrix. Among these witnesses was an osteopathic physician who had practiced in Pratt County for fifty years and treated the testatrix for more than twenty-five years, two practicing physicians and general surgeons who had attended the testatrix, one having known her since 1931 and having had many contacts with her as an individual and in a professional capacity during the years, and the other having known her as a patient since May, 1952. Others included a legal secretary, a banker, an insurance broker, a graduate nurse, and neighbors from the vicinity of the Millar ranch in Kiowa County, Kansas, who had known the testatrix for many years.
The substance of the testimony given by these witnesses, if taken as true, established the requirements of mental capacity to make a valid will frequently applied by this court — that the testatrix was able to know and understand what property she had, know about her relatives and others who may be the objects of her bounty, and their condition and relation to her, and was able to direct and make disposition of her property with understanding and reason. (Hudson v. Hughan, 56 Kan. 152, 42 Pac. 701; Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494; Stayton v. Stayton, 148 Kan. 172, 81 P. 2d 1; and In re Estate of Ellis, 168 Kan. 11, 210 P. 2d 417.) In the opinion of these witnesses, the testatrix had full mental capacity at the time she executed her will and the codicils thereto. She was described as a strong-minded woman not easily influenced.
The appellants took the position that the decedent was greatly advanced in age and infirm of mind and body and was .incapable of and did not know and understand the extent and value of her property, the natural objects of her bounty and the meaning and purport of the instruments which she executed. They contended that at the time she executed the will and codicils thereto she was suffering from neuropsychiatric syndromes that gave her a sick mind and complete deterioration of mind, body and emotions; that she was influenced by untrue and imaginary beliefs and thoughts which had no basis in fact concerning her sole and only grandchildren, appellants herein, and their natural claim upon her property as natural objects of her bounty.
At this point it should be stated the testatrix left no property or money to her granddaughters, the appellants herein, who were her sole and only heirs at law. Except for a few minor bequests of money, taking the size of her estate into account, she left the home in Pratt together with the sum of $10,000 to the “Library Board of the City of Pratt, Kansas, and/or the City of Pratt, Kansas,” with directions that the1 structure be known as “the William C. Millar Memorial,” and the remainder of her estate in trust for the benefit of the “Library Board of the City of Pratt, Kansas, and/or the City of Pratt, Kansas,” as a further contribution to the maintenance of the public library of the City of Pratt, Kansas.
The appellants’ evidence as to incompetency of the deceased to make the will and respective codicils in question was the opinion testimony of an experienced psychiatrist and neurologist, Dr. Frank H. Harris, M. D., of Wichita, Kansas. Dr. Harris had never seen the testatrix during her lifetime and was presented as a qualified and experienced psychiatrist and neurologist, who had carried on an extensive practice in determining within reasonable medical certainty the competency or incompetency of a person after death, without having previously treated or observed such person prior to death. The appellants’ theory of the case was that “a competent medical trained practitioner in the field of psychiatry can determine the mental competency or incompetency of an individual after death when they have not had occasion to treat or see the person prior to death. And that the diagnostic aids of doing that is to obtain information of all the things in the background, the life and history of the person that they are trying to determine competency after death.”
Pursuant to this theory the appellants sought to introduce in evidence before the trial court the life history of the testatrix.
The first question' presented by the appellants is that the trial court excluded medical evidence which denied the appellants a fair trial.
It would be impossible to disclose just what testimony the trial court did exclude without incorporating verbatim practically the entire abstract of the testimony in this case. Suffice it to say, the appellants assigned the exclusion of evidence as one of their grounds in the motion for a new trial, however, at the hearing on the motion for a new trial they did not produce the evidence which they contend was excluded improperly. This question is therefore not here for review. (G. S. 1949, 60-3004.) It has been repeatedly held that where the ground of the motion for a new trial is error in the exclusion of evidence, the excluded evidence must be produced at the hearing of the motion for a new trial. (Mohr v. Women’s Benefit Ass’n., 134 Kan. 311, 5 P. 2d 789, and cases cited under the section of the foregoing statute.) In passing it may be said the appellants sought to rehash the evidence of the entire divorce proceedings between Cyrus and his wife and the court proceedings concerning the contest of Cyrus’ will, both of which the trial court excluded. It has been held that a wide range of testimony is allowed in cases involving mental capacity, and, as a general rule, any and all conduct of the one whose sanity is in question is admissible in evidence. Kempf v. Koppa, 74 Kan. 153, 85 Pac. 806.) Whether the excluded evidence was material is not shown by the record, it not having been produced at the hearing of the motion for a new trial.
Appellants contend the record strongly indicates the trial court at no time fully comprehended appellants’ theory of the decedent’s inability to make a valid will because of a special mental condition or disease, classified as a neuropsychiatric syndrome and paranoid personality. This leads to the next question presented.
After all of the testimony concerning the history of the testatrix’ life was in, including the cross examination of appellee’s witnesses and the testimony given by the appellants and various witnesses called on their behalf, counsel for the appellants qualified Dr. Harris as a specialist in psychiatry and neurology and then put a hypothetical question to him consisting of approximately twenty-seven hundred words. This question attempted to review the history of the testatrix’ life as disclosed by the evidence before the trial court. Dr. Harris, after stating that he had formulated an opinion concerning the. testatrix’ mental capacity, answered as follows:
“In my opinion, this woman, and I am taking into consideration what I have heard in court, having treated or haying knowledge of Billy Millar, and also having read some other records that this woman was a paranoid personality and that was characterized by, One: The rejection of her granddaughters and also the rejection of her own son. If you will go back in the records, I think that will be shown. Two: Her feeling of wanting to possess everybody. She wanted to possess her lawyer, she wanted to possess her banker, and she wanted to possess everybody. She wanted to make them dangle at the end of the string. This woman was insecure. That was her paranoid way of getting back at people. She had them do her bidding at her will. She was very suspicious, again part of her paranoid feeling. I am sure when she submitted a bill she had to have everything itemized and then she would quibble about various things on. that bill. She was very suspicious that somebody was trying to take something from her. Three: There is the problem of insight and judgment. She had good judgment probably when it came to business. She had good judgment when it came to certain parts of her mental life but when it came to her own family, her relatives, her judgment was poor, her insight was poor. You in no way could convince this woman that she was wrong in her feelings towards her'own granddaughters, regardless of what she felt about their mother, so the insight which is a very significant part of an individual’s mental capacity was poor. And judgment in regard to these people was poor. She was able to know her property but proper distribution, to leave it to her own children, she had no' conception of that judgment of what to do with it. because there was this paranoid feeling towards these two people.”
Dr. Harris then further testified that in his opinion the testatrix had knowledge and understanding of what properties she had; that she knew the granddaughters, appellants herein, were the natural objects of her bounty but that she was unable to make a disposition of her property by will with understanding and reasoning because her insight and her judgment at the time she executed the various instruments in question and for quite a long tinle had been impaired by reason of her paranoid personality. He further related that it was possible for him to reach a conclusion such as the opinion stated in his testimony, upon the evidence presented to him in the hypothetical question, without treating or seeing the patient ahead of time.
Upon cross examination Dr. Harris was asked to state upon what evidence he determined that the testatrix rejected her son, Cyrus. He answered by saying that the testatrix did not want the son to get married because she wanted to possess him. He then went beyond the record to state that Cyrus had several other girl friends but the testatrix stopped their marriage. He related that he obtained this information from some people whom he contacted and some evidence he had in the office, and not from the courtroom. Counsel for the appellee moved to strike the doctor’s testimony, whereupon Dr. Harris, pursuant to interrogation by counsel for the appellants, disclosed that no other extraneous evidence, beyond what he stated, was considered in his opinion and that even excluding such evidence his opinion would be the same. The trial court thus permitted his testimony to stand.
The trial court found that the decedent, Carrie E. Millar, at the time she made her will and the two codicils thereto, “was fully competent and mentally alert enough to know the property which she owned, the objects of her bounty, and be able to make a reasonable, sensible disposition of it” and by bis ruling affirmed the order of the probate court admitting the will and the two codicils thereto to probate.
The second question presented by the appellants’ brief is: “Were the findings of fact and judgment of the trial court rendered under the influence of prejudicial personal beliefs and feelings of the court and contrary to reliable scientific evidence so as to deny to the appellants a fair trial?”
At the conclusion of the trial the judge made rather extensive remarks consisting of his findings and judgment. Among these remarks he said:
“ . . . Now, of course, the objectors here rely upon the evidence of the psychiatrist. Well, I hope that I am not prejudiced against psychiatry
Appellants conclude from the foregoing remarks that the trial judge was prejudiced, or at least sufficiently prejudiced so as to deny them a fair and impartial trial. It is clear that a court must be fair and impartial when the court is trying a fact case without a jury. (Harrison v. Harrison, 48 Kan. 443, 29 Pac. 572.)
The law is settled in this jurisdiction that nonexpert testimony is competent on the question of mental capacity, and the trier of the facts is not bound to adopt the views and opinions of a physician, qualified as an expert in psychiatry and neurology, to the exclusion of other nonexpert testimony. (Mingle v. Hubbard, 131 Kan. 844, 293 Pac. 513; and In re Estate of Millar, 167 Kan. 455, 207 P. 2d 483.) Furthermore, the opinions of medical men, who have only normal school trainipg in psychiatry without being specialists in the field, are admissible in evidence as to the mental capacity of a person at a particular time, because they are supposed to have become, by study and experience, familiar with symptoms of mental disease, and therefore qualified to assist the court or jury in reaching a correct conclusion. Such opinions of medical doctors may be based upon facts within their personal knowledge, gained from actual examination or observation, as well as upon a hypothetical case disclosed by the testimony of others. (Stayton v. Stayton, supra.) While the physicians in the instant case who attended the testatrix during her lifetime and testified for the appellee were not specialized in psychiatry and neurology, as was Dr. Harris, they were none the less in the category of expert witnesses.
The appellants contend the remarks of the trial judge indicate that the trial judge decided the case upon his own meager knowledge of psychiatry, and disregarded entirely the testimony of Dr. Harris, thereby denying them a fair and impartial trial.
While the trier of the facts might under some circumstances reject expert testimony, absolutely, depending upon the circumstances, and give it no weight because it is believed to be least worthy of credit, it does not follow that such expert testimony can be disregarded. (Forsyth v. Church, 141 Kan. 687, 42 P. 2d 975.)
In our opinion the above quoted remarks of the trial judge appear to be relatively insignificant when considered in the light of other remarks made in connection therewith. Pertinent portions of the statement made by the trial judge are:
. It [the question] is whether or not the decedent in this case had a right to believe certain ways and had a right to indulge certain prejudices which she had. No doubt she had certain prejudices, but who can say that they were not or that they were entirely without reason or that they went to the extent of becoming insane delusions? I don’t think we could say that at all. I think the evidence falls far short of that. This woman had an only son and no doubt she had great ambitions for that son. Perhaps she was possessive to some extent. Perhaps she did seek to control his life to a greater extent than most mothers do or she should have done, but that is quite common. So, he goes out and mairies a girl — selects a wife and marries her and that didn’t suit the mother very well and so it is to be expected that in a year or two or three these girls came along. The mother was still possessive and still craving the love and affection of her only son and perhaps these girls tended to take some of their father’s love and devotion way from the mother which was only natural, but the mother didn’t take kindly to it and she went along and she didn’t overcome that as years went along, that motherly, overly possessive feeling that she had. In fact, as years set upon her it may have increased and then the divorce between the son and his wife came and it just tended further to confirm her judgment that, the marriage had been wrong, and she naturally took her son’s part. She was already turned against the daughter-in-law and somewhat prejudiced against her granddaughters and so this prejudice becomes greater. Maybe if the girls could now look back and see how they might have catered more to their grandmother and had used greater diplomacy and bowed before her, they might have overcome some of this, but they were also individualists and they didn’t see fit to do that and they can’t be blamed for that. So, events run along until the time when their grandmother got to thinking of the disposal of this property. After the divorce and the son got whatever he got out of it, and he naturally was embittered at the girl’s mother and whatever the facts are as between the father and these girls or whatever the rights and so on are concerned, the father may have been somewhat dominated by his mother. I don’t know. Anyhow, he saw fit to disinherit the girls, which he had a right to do, whether it was the proper thing to do or not. Under the law he was the sole judge and all his property went to his mother; and in a few years it became necessary for her to make a will and dispose of this property, and she seeks an outlet for these biases and prejudices and feelings that she has carried.during the years. The library here for some reason or other, which the evidence does not disclose entirely, appealed to her so she made the provision for the library. Now, it may be somewhat unnatural for the grandmother to just utterly forget her grandchildren. It may seem harsh and cruel that her own flesh and blood are left out. Yet, it was her privilege to do whatever she saw fit to do and she did. She made this will. I think the overwhelming evidence here is in support of the will and the testatrix’ competency to make the will. I can’t get away from the fact that all these lay witnesses that have come in here with their knowledge of the testatrix which they have disclosed and who were perfectly competent to pass upon the competency of this woman and to know what her mental abilities were. It has been pointed out here that she knew of the property she had; that she knew of her family and the natural objects of her bounty. There is no doubt but that she knew and had the ability to make a reasonable disposition of that property according to the dictates of her own conscience and that I think she did. Now, of course, the objectors here rely upon the evidence of the psychiatrist. Well, I hope that I am not prejudiced against psychiatry. I believe it has a place in medical science. I think it also has a place in the jurisprudence of our country. I don’t think it should be discarded lightly, but under the facts of this case and with my meager knowledge of psychiatry, I am rather disappointed in Dr. Harris. I listened to certain testimony here and particularly the question that was put to him by counsel for the objectors and then heard the definite fixed opinion that this woman was a paranoid. I rather expect more from a psychiatrist than that; that he would see the possibilities on the other side also. I think it might apply to certain individuals, that He might be able to tell, but if I should accept the testimony of Dr. Harris in the light of all the other testimony in this case, I would be very very fearful that I would put upon the auction block every last will and testament that might be made in this county or any other county in the district for years to come, if this will could be determined by the. mental analysis of a psychiatrist. I am unwilling to go even part way on that. I still think that in many respects that the lay witness comes nearer to analyzing his neighbor’s mind than perhaps a trained mental student or psychiatrist could because human nature is so different and it varies with all persons and to take one rule out of a book and say that if you come within that rule, you are a paranoid and incompetent, why, I cannot go along with it.” (Emphasis added.)
Nó doubt some of the remarks of the trial judge were prompted by testimony elicited from Dr. Harris on cross examination' by counsel for the appellee as follows:
“Q. (By Mr. Barrett) You further said that from the evidence that it showed that she was possessive, that she wanted her lawyer, she wanted her doctor, she wanted to possess- them. Doctor, when a person is sick, they hire a doctor. That is logical. That isn’t possessive, is it?
“A. Yes, you find people possessive even under illnesses..
“Q. A woman that is engaged in numerous business activities, would it be wrong for her to make inquiry of and depend somewhat upon her banker for advice in financial dealings?
“A. Yes, you expect to depend on them.
“Q. A woman who is in — At the time this instrument was executed in which most of the testimony has been, she was seventy-six years of age and eighty-six at the time of her death. She had arthritis and rheumatism and other ailments that limited her movement. Was anything unnatural for her attorney or her banker or her insurance representative or car salesman to call upon her and transact ordinary business for her? Did that make her possessive?
A. I drink you will find that if she was that ill that she couldn’t go to the bank or to see her lawyer, then she couldn’t transact her business too well.
“Q. If she had brains enough to know that she needed a banker’s assistance or lawyer’s assistance, would that make her incompetent and graspy?
“A. Yes.”
The remarks of the trial judge plainly indicate that the testimony of Dr. Harris was not disregarded. It was rejected by the trial judge after having fully considered all the evidence. There is nothing in the record to indicate that the trial court did not give the testimony of Dr. Harris the consideration to which it was entitled. It should not have been so (Considered as to nullify all nonexpert testimony in conflict with it (In re Estate of Millar, supra), nor should it have been so considered as to nullify the expert testimony of medical doctors who attended the testatrix in her lifetime even though they were not specialized in psychiatry and neurology.
Our decision is therefore controlled by the rule stated in Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580. Where the trial court, in an action to set aside a will (including the codicils thereto) because of the testamentary incapacity of the testatrix, holds under conflicting testimony that the testatrix was mentally competent to make the will, and such finding is sustained by substantial evidence, the finding is conclusive on appeal.
The value of property consists largely in the right to dispose of it as the owner desires, and this power of disposal, either by deed or by will, is not to be interfered with so long as the requisite mental capacity exists. (Cole v. Drum, 109 Kan. 148, 197 Pac. 1105, and cases cited therein.) The right to make a will includes the right to make it according to the testatrix’ own desires, subject only to the statutory restrictions. It is no condition of this right that the will shall please a jury, or a court, or the testatrix’ relatives, or anyone else. If the will was properly executed, and the testatrix was of competent sanity, and no undue influence has been established, it is the testatrix’ will, and no tribunal is appointed on earth to inquire whether it ought to have been her will. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634.)
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|
The opinion of the court was delivered by
Schroeder, J.:
These injunction actions were instituted by a group of taxpayers against the appellant school districts and their board members to challenge the validity of proceedings to issue school bonds, on the grounds that notice of the bond elections were published for an insufficient period of time. The trial court rendered judgment for the appellees, permanently enjoining the issuance, registration and sale of the bonds.
Appeals have been duly perfected to this court by the school districts from all adverse rulings.
The sole and controlling question presented is whether the notice given of the bond elections was sufficient to comply with the statu tory requirements. The foregoing question is treated in two phases: (1) What is the publication date of a newspaper regarding legal notices? and (2) Does G. S. 1957 Supp., 72-2018, require twenty-one clear days notice?
Common School District No. 78 and Rural High School District No. 5 are located in Linn County, Kansas, and cover practically the same territory. The city of Pleasanton, Kansas, is a city of the third class and is included within the boundaries of both districts.
Pursuant to G. S. 1957 Supp., 72-2017 and 2018, the respective school districts called an election upon the question whether bonds should be issued for the purpose of providing funds to acquire a site and construct and equip a school building. The election was held on May 22, 1958, and the bonds carried in both districts. After the election and before the bonds were issued and registered, the appellees filed the present actions to enjoin the issuance, registration and sale of the bonds on the grounds that the elections were void because of insufficient notice and because of certain irregularities in the conduct of the elections. The allegations of the petition in case No. 41,453 and the petition in case No. 41,469 are identical except as to the parties defendant, the amount of the proposed bond issues, and the number of yes and no votes in the respective districts. The evidence adduced at the trial applies equally to both cases. In all material respects the cases are identical concerning the issues, and the parties have stipulated that the decision of the court in one case shall control the decision in the other case.
Paragraph 8 (a) of the petitions alleges: “The said proposed election was null and void and contrary to G. S. 1957 Supp. 72-2018 in that Twenty-One (21) days did not elapse from the time of the first publication of said notice of election on May 1, 1958, until the election was held on May 22, 1958, . . .” Other subsections of paragraph 8 deal with alleged irregularities in the conduct of the election.
The defendants in their answer bring in new matter and allege that notwithstanding the May 1, 1958, date line of the paper in which said bond election notice first appeared, said newspaper was in truth and in fact printed, published and circulated on April 30, 1958, and twenty-one clear days did elapse prior to said election.
The trial court found the allegations in regard to the irregularities in conducting the election to be true, but not sufficient to vitiate the election for the reason that there was no evidence that a sufficient number of votes was influenced thereby to change the result of the election. (This question is not before us on appeal.) The trial court further found that the first publication of notice was had on May 1, 1958, and the election was held on May 22, 1958; that twenty-one clear days did not elapse from the time of the first publication until the time of the election; that the notice did not comply with the statute and the election held on May 22, 1958, was void.
There is little if any conflict in the evidence. The notices given of the bond election to be held on May 22, 1958, were published in the Pleasanton, Kansas, Observer-Enterprise, which is a weekly newspaper' published and circulated in the two school districts involved. This paper is qualified to publish legal publications. The notices were published for three consecutive weeks, the first publication being made in the paper which carried a date line of May 1, 1958. This edition of the paper was printed sometime between 3:30 and 5:00 o’clock p. m., Wednesday, April 30, predated May 1, 1958. After the papers were printed they were taken to the Pleasanton post office for mailing to the subscribers. With the exception of approximately twenty-five papers sold from a rack in front of the newspaper office on April 30, the entire circulation is had through the U. S. mail. Some of the Pleasanton city subscribers called at the post office Wednesday evening,. April- 30, and received their paper. General circulation was had on Thursday, May 1, and no subscriber, other than those calling at the post office Wednesday evening, could have received his paper prior to May 1.
Pleasanton city covers an area of about one square mile and each of the school districts is more than eighty square miles in area.
Total circulation of the Pleasanton Observer-Enterprise is about 1,200; approximately 300 in the city of Pleasanton and approximately 125 on each of the four rural routes, out of Pleasanton. The balance of the circulation is made up of bundles to nearby towns and single mailings to various more distant points. •
Papers for the rural route subscribers are placed on the carriers’ desks for delivery the following morning, which in this case would be May 1.
Papers for subscribers with a nearby town address are tied in bundles; each bundle being properly identified with the name of the town written on the outside. There was a bundle for Mound City, Roicourt, Prescott and LaCygne. The number of these subscribers who lived within the school districts involved is not disclosed by the evidence. These bundles are placed in a sack labeled to the particular town they are to go and are taken to the train. The bundles are not opened by the local postal employees and it would have been impossible for these subscribers to receive their paper until May 1. The bundle for Roicourt frequently did not arrive at the Roicourt post office until Friday of each week. Roicourt subscribers live within the districts involved.
The Pleasanton, Kansas, Observer-Enterprise has carried a Thursday date line for many years and has published legal notices for a long time. The legal publications have always carried a Thursday date line and the proof of publication has always had a date line of Thursday.
The bond election notices in question here as published were annotated: “(First published in the Pleasanton, Kansas, Observer-Enterprise, May 1, 1958.)” In proof of publication the publisher’s affidavit states that such notices were first published on May 1, 1958.
We shall first consider whether the notice of the bond elections which appeared in the Pleasanton, Kansas, Observer-Enterprise was first published on April 30 or on May 1. While it is true that city subscribers in Pleasanton could have received their paper Wednesday evening, April 30, and some did by calling at the post office, the general circulation, taking into account the rural routes out of Pleasanton and the nearby towns, was not achieved until Thursday, May 1. It is not challenged that the newspaper bore a publication date of May 1 and that proof of service of publication disclosed that the publication was first made on May 1.
G. S. 1957 Supp., 72-2018, reads in part:
“. . . Notice of the election shall be published in a newspaper of general circulation in the district once each week for three consecutive weeks, . . .” (Emphasis added.)
The Supreme Court of Indiana in Bd. of Com. of Decatur Co. v. Greensburg Times, 215 Ind. 471, 19 N. E. 2d 459, said:
“. . . General circulation as applied to a newspaper depends largely upon the diversity, rather than on mere number of subscribers . . .” (p. 476.)
The purpose of a legal publication is to give notice. Here the notice was available on April 30 to a fraction of the public in an area of about one square mile but not available or circulated to the public in the remaining portion of the district until May 1, or later. The general circulation of the first publication of the legal notice here in question was not until May 1.
We think the proper construction of the statute is that the printed date of the newspaper is generally to be regarded as the date of publication. There was no evidence in this case competent to show that the newspaper was published the day before its date. The trial court’s finding on this point should therefore be sustained. A contrary decision would lead to confusion concerning the effective date upon which legal notices are published, since morning papers are usually printed prior to midnight on the preceding day and many weekly papers are actually printed on the day prior to the date which they bear.
The provisions in G. S. 1949, 64-102, relating to legal publications and notices, have been fully met in view of the facts and the trial court’s finding that publication was first made on May 1.
We have been cited to no Kansas cases directly in point nor has our research disclosed any. In fact, very few cases on this point have been found in foreign jurisdictions. In Davis v. Huston, 15 Neb. 28, 16 N. W. 820, it was said in the syllabus concerning a publication that “The paper will be presumed to have been published on the day of which it bears date.”
The New Hampshire court had a case squarely in point upon the question here presented in Schoff v. Gould, 52 N. H. 512. That case involved the validity of a collector’s tax sale of real estate where the first publication was in the issue of the newspaper dated September 21, 1841. The defendant offered evidence to show that the publication of that paper was in fact September 20. In the opinion, which we regard as soundly reasoned, the court said:
“. • • His evidence tends to prove that this paper was actually printed and ready to be delivered on the afternoon of September 20, and was actually delivered to the subscribers in the village of Lancaster, where the paper was published, that afternoon or evening, and the rest were left in the post-office that night, directed to the other subscribers, and went out in the mail the next morning; that the whole edition was about four or five hundred, — from fifty to seventy-five for the village subscribers,
“We think the true construction of the statute is, that the printed date of the newspaper is generally to be regarded as the date of publication, and that there was no evidence in this case competent to show that the paper was published the day before its date. However it might be in case of fraud or mistake in tlie printed date, or under other peculiar circumstances, we have no doubt but that the date of the paper was intended by the legislature to be the date of publication in ordinary cases of notice in a weekly paper published on a fixed and uniform day of the week, purporting and generally understood to be published on the day of its date, and actually issued so near that day as to justify the understanding that, for the practical purpose of giving legal notice, that is the day of publication. Obvious reasons of convenience and certainty, and the general understanding and practice prevailing in this State, which the makers of the statute cannot be presumed to have overlooked, show that such must have been the legislative design.
“The publication of notice was insufficient, and the sale void.” (p. 513.)
Does G. S. 1957 Supp., 72-2018, require twenty-one clear days notice? Pertinent parts of the foregoing statute read:
“. . . Notice of the election shall be published in a newspaper of general circulation in the district once each week for three consecutive weeks, the first publication to be not less than twenty-one days prior to such election, except that in common-school districts not including a city of the third class, in lieu of such publication, notice may be given by posting written or printed notices in three public places in the district at least twenty-one days prior to such election . . .” (Emphasis added.)
The foregoing statute amends G. S. 1949, 72-2002. The appellees contend-72-2018, supra, requires twenty-one clear days notice and that the publications here did not meet that requirement because twenty-one clear days did not elapse between the date of the first publication (May 1) and the date of the election (May 22). The answer lies in the method of computing time where the words “at least” or “not less than” are used in the statute, as is the case here.
It may be noted that the bond law, G. S. 1949,10-120, upon which appellants rely, reads in part as follows:
“Whenever an election is required for the issuance of bonds for any purpose by any municipality other than a school district, drainage district or irrigation district, . . .” (Emphasis added.)
It is apparent the foregoing statute cannot apply to school districts. Appellants also rely upon the City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937. That case involved the general bond statute, G. S. 1935, 10-120, which required notice of the bond election to be published “not less than twenty-one days prior to such election.” Counting the first day of publication in that case as one of the days of publication there were only nineteen days before the election. The controlling question in the decision, however, was whether or not an act of the legislature validated the bond election for which the notice of election was published for an insufficient period of time.
The statutes, G. S. 1949, 60-3819 and 60-3819a, provide a method of computing time where the statute prescribes a time within which an act is to be done. These statutes have been held to have no application where a minimum time is required and the words “at least” or “not less than” are employed.
In Smith v. Robertson, 155 Kan. 706, 128 P. 2d 260, the court was interpreting a statute which makes a decision of the commissioner final, where notice thereof is given by mail, unless within five days after mailing of the notice thereof, a petition for judicial review is filed in the district court. It was held that a petition filed on the sixth day did not conform to the statute and was too late. In the opinion the court said:
“It should also be borne in mind that this court, like other courts, has definitely distinguished between statutes which provide that an act is to be done within a specified number of days and statutes which provide that at least a certain number of days should intervene between dates or acts. In the last class of cases the words “at least” have been interpreted to mean clear days. Clear days are not intended where the word “within” is used . . .” (p. 712.)
Cases construing the words “at least” or “not less than” in a statute have been decided over a wide expanse of time in the legal history of our state. One of the early cases is Garvin v. Jennerson, 20 Kan. 371, in which the second syllabus reads:
“A deposition to be read on the trial of a case in the district court must be filed at least one day before the day of trial; and the statute means thereby, that one clear day must intervene between the filing of the deposition and the commencement of the trial at which it is to be read. To properly compute the time within said statute, both the day on which the deposition is filed, and the day of the trial, are to be excluded.”
Another case which held that the statutory method of computing time was not applicable where the words “at least” were used in the statute under consideration is Boring v. Boring, 155 Kan. 99, 122 P. 2d 743. It was there held in construing G. S. 1935, 60-1517, that it was the legislative intent that sixty clear days should intervene between the date of the filing and the hearing of a suit for divorce. It was further held the statutory rule of computation prescribed in G. S. 1935, 60-3819 (now G. S. 1949, 60-3819), which directs the exclusion of the first day and the inclusion of the last, in computing the time within which an act is to be done, does not apply to a suit for divorce, and a default decree for divorce and alimony rendered on the sixtieth day after the filing of the petition, without the declaration of an emergency, was prematurely rendered and should have been set aside on the motion of the defendant, filed on the same day.
In the case of Gunter v. Eiznhamer, 165 Kan. 510, 196 P. 2d 177, a statute (G. S. 1935, 61-1304) provided that notice shall be served at least three days before commencing a forcible detainer action, it was held an action commenced on the third day after notice was served was insufficient in that three clear days must elapse. It was also held, since it was purely a statutory action, the person availing himself of it must bring himself clearly within the provisions of the law.
The most recent case on the question presently before the court is State, ex rel., v. Schmidt, 182 Kan. 593, 322 P. 2d 772. That case involved the organization of a rural high school district under G. S. 1955 Supp., 72-3541, and turned on the method of computing time in the publication of a legal notice of a special election. The first publication was had on November 26, 1956, and the election was held on December 17, 1956. It was there said in the opinion:
“The source of the prior law to G. S. 1955 Supp., 72-3541 is G. S. 1949, 72-3502.
“Section 72-3502, G. S. 1949 provided:
“ ‘. . . Notice of all such elections shall be given at least twenty-one days prior to the date of such election by posting printed or typewritten notices on the door .of each schoolhouse in the proposed district and by publishing the same twice in some newspaper published in each county in which the proposed district or any part of the proposed district lies, . . .’ (Emphasis ours.)
“Section 72-3541, G. S. 1955 Supp, now provides:
“ . . Notice of such election shall be given at least twenty-one days prior to the date thereof by posting notices on the, front door of each schoolhouse in the proposed district and by publishing notice twice in a newspaper published in each county in which any part of the proposed district lies, the first publication to be not less than twenty-one days prior to the election . . .’ (Emphasis ours.)
“The only change made in the statute was the addition of the words ‘the first publication to be not less than twenty-one days prior to the election.’
“[1] Prior to this amendement [amendment] the rule was well established in the decided cases that in computing the time of ‘at least twenty-one days’ the first day of publication was included and the last day was excluded. This rule of computing time did not require ‘twenty-one clear days’ of publication. (State, ex rel., v. Wallace, 112 Kan. 264, 210 Pac. 348; City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937; State, ex rel., v. Miami County Comm’rs, supra.)
“The Miami case was decided in 1950. The amendment of the Jaw by the legislature was in 1951. The additional requirement in the statute that the first publication must be ‘not less than twenty-one days’ can only be construed to mean a legislative intent of twenty-one ‘clear days,’ thus abrogating the previous rule established by judicial interpretation of G. S. 1949, 72-3502.
“The case at bar is one of first impression under the amended statute (G. S. 1955 Supp., 72-3541.) Under its provisions notice of election must be given ‘at least and not less than twenty-one clear days’ prior to the election.
“The notice here did not comply with the statute and the election held on December 17, 1956, was void.” (p. 595.) (Emphasis added.)
Upon reviewing the cases cited in the paragraph (numbered [1]) above quoted, the case of State, ex rel., v. Miami County Comm’rs, 168 Kan. 723, 215 P. 2d 631, is the only firm decision which squarely supports the rule for which it is cited. In the Schmidt case it was held the legislature intended to change the judicial interpretation of 72-3502, supra, in the Miami case concerning the method of computing time where the term “at least twenty-one days” was used in the statute. In other words, the legislature by amendment of the statute overruled the Miami case and said in effect “at least twenty-one days prior to the date of such election” means clear days and G. S. 1949, 60-3819, is not intended to apply.
In the case of State, ex rel., v. Wallace, 112 Kan. 264, 210 Pac. 348, the statute there under consideration required at least twenty-one days and the facts disclose that twenty-one clear days elapsed between the first date of publication and the election. The question there presented was whether the statute required twenty-one days after the last publication in the newspaper.
The case of City of Wichita v. Robb, supra, has already been commented upon.
The instant case is controlled by the decision in State, ex rel., v. Schmidt, supra. The phrase “the first publication to be not less than twenty-one days prior to the election,” as used in G. S. 1955 Supp., 72-3541, pertains to the same subject matter as G. S. 1957 Supp., 72-2018 — the publication of notice of a special election in a newspaper. It is further to be noted that the above two statutory sections were enacted by the legislature in 1951, in the same bill, being Senate Bill No. 5, and entitled “An Act to clarify and codify certain laws governing schools, relating to common-school, rural high-school and community high-school districts, . . .” (Laws of 1951, ch. 395, §§ 45 and 61.)
Both sections of the statute used the term “not less than twenty-one days” as regards the publication of notice and the term “at least twenty-one days” as regards posted notice, the only distinction being that 72-3541, supra, required both posted notice and publication notice while the statute here in question, there being a third class city within the district, did not require the posted notice but did require the publication notice be “not less than twenty-one days prior to such election.”
It could not be successfully argued that the legislature intended different meanings to attach to the terms “at least” and “not less than” when it used each of these expressions in both sections of the statute presently the subject of discussion.
The appellants argue that the Schmidt case is applicable only where a statute provides that the publication notice should be “at least and not less than twenty-one days prior to the election.” We do not so construe the holding in the Schmidt case as it applies to the construction of 72-3541, supra. The legislature was not satisfied with the interpretation placed upon the statute in the Miami case and changed the wording of the statute thereby indicating its intention that the terms “at least” and “not less than” should be construed as twenty-one clear days.
We therefore hold the provisions of G. S. 1957 Supp., 72-2018, which require notice of a bond election in a school district to be by publication in a newspaper, the first publication to be not less than twenty-one days prior to such election, mean twenty-one clear days must intervene between the date of first publication in the newspaper and the date of the bond election. In computing the time both the first day of publication and the day of the election are to be excluded. The statutory rule of computation prescribed in G. S. 1949, 60-3819 and 3819a, which directs the exclusion of the first day and the inclusion of the last in computing the time within which an act is to be done, does not apply.
This court has always held that the statutory provisions for notice of a special election are mandatory rather than directory. Failure to comply with such mandatory provisions renders the election void. (State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523; State, ex rel., v. Staley, 90 Kan. 624, 135 Pac. 602; and State, ex rel., v. Schmidt, supra.)
The notices here did not comply with the statute and the bond elections held on May 22, 1958, are void.
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The opinion of the court was delivered by
Parker, C. J.:
This is a habeas corpus proceeding in which the warden of the Kansas state penitentiary appeals from an order and judgment of the district court of Leavenworth County granting the petitioner, Leo Tafarella, a writ of habeas corpus and directing his release from the warden’s custody.
There is no dispute respecting the basic facts responsible for petitioners detention. According to the record presented he was charged by information in the district court of Crawford County with the crime of first degree murder, jointly with Roy Ramsey and James Samuel George. When his case was called for trial on September 26, 1949, he was present in court without counsel and announced ready for trial. Thereafter he was advised by the court that it could and would appoint counsel for him. Upon receipt of this information he stated he did not desire counsel and executed a verified written waiver before the clerk of the court. In this instru ment he stated that with full knowledge of his right to court-appointed counsel he was giving the court to understand he did not desire to be so represented and requested the court to accept his plea of guilty to the information charging him with murder in the first degree, without the appointment of counsel by the court. Thereupon the state offered in evidence a statement, signed by petitioner, admitting his part in the crime as charged by the information filed against him. Petitioner read the statement and admitted it was true, whereupon it was admitted in evidence with his permission. He was then informed by the district judge that his plea of guilty of murder in the first degree, as charged in the information, was accepted by the court. Thereafter he was required to s'and for sentence and inquiry was made of him as to whether there was any legal and lawful reason why judgment and sentence should not be pronounced against him upon his plea of guilty and, upon no reason being alleged or shown, he was sentenced by the court to confinement in the state penitentiary for life at hard labor in accord with the statute.
On November 10, 1958, more than nine years after the.foregoing conviction and sentence, petitioner filed a petition for a writ of habeas corpus in the district court of Leavenworth County. For purposes pertinent to the disposition of issues raised on this appeal it may be said that pleading alleges in substance that petitioner is being held in custody by the respondent in denial of “Due Process of Law,” because of the trial court’s failure to comply with the requirements of Laws of 1941, Chapter 291, Section 1, now G. S. 1949, 62-1304, by reason of which such court lost its jurisdiction to render a valid judgment and sentence against him for the crime of murder in the involved case.
On November 15, 1958, the Hon. L. M. Resler, who, it is to be noted, is the same district judge who rendered the judgment in the petitioner’s case on September 26, 1949, entered an order nunc pro tunc, correcting the journal entry in such case, which reads:
“Now on this 15th day of November, 1958, comes on for hearing the Motion of plaintiff for an Order entering judgment nunc pro tunc in this action as it pertains to defendant, Leo Tafarella. The State was represented by and through J. John Marshall, County Attorney in and for Crawford County, Kansas. There were no other appearances. The Court finds that adequate notice was given to the said Leo Tafarella by registered mail. The Court also finds from the records of the Court and the minutes of the trial judge in his docket, that there was a judgment and sentence duly pronounced and rendered in this action against the defendant, Leo Tafarella, on the 26th day of September, 1949, whereby it was ordered, adjudged and decreed that defendant, Leo Tafarella, be sentenced to the Kansas State Penitentiary at Lansing, Kansas, for a term of life on his plea of guilty to first-degree murder but that through an oversight or omission of the then County Attorney, certain findings were omitted from the Journal Entry filed. This Court further finds that there should have been a finding in the Journal Entry that although defendant, Leo Tafarella, expressly waived Court' appointed counsel, this Court also found that it would not be to the said defendant, Leo Tafarella’s advantage to have Court appointed counsel over his objection, pursuant to G. S. 1935, 62-1304, as amended.
“It Is, Therefore, Ordered that the Journal Entry of Judgment and sentence against defendant, Leo Tafarella, be corrected to cure this defect and that the following findings of the trial Court be inserted therein and made a part thereof, as though set out originally therein, to-wit:
“ ‘The Court also finds that the appointment of counsel by the Court over defendant Leo Tafarella’s written waiver and objection would not be to his, the said Leo Tafarella’s advantage.’ ”
On the next day, i. e., November 16,1958, the respondent, warden, answered the petition for writ of habeas corpus. It suffices to say that in this answer he denied that petitioner’s restraint was illegal or in violation of law, alleged that petitioner was legally and lawfully confined in his custody under the September 26, 1949, judgment and sentence; and prayed that the writ be denied.
With issues joined as related the district court of Leavenworth County heard the cause and rendered judgment granting the writ. It may be said that, for all purposes pertinent to the issues involved on appellate review, such judgment, as reflected by the journal entry of judgment, reads:
(1.) “That on the 26th day of September, 1949, in the District Court of Crawford County, Kansas, in Case No. 3443, wherein the State of Kansas was Plaintiff and Leo Tafarella and others were Defendants, the defendant in said action, and the petitioner herein, entered a plea of guilty to a charge of first degree murder, and pursuant to said plea of guilty was sentenced by said Court to the Kansas State Penitentiary for the remainder of his natural life.
(2.) “The Court further finds that in said foregoing criminal action in said District Court of Crawford County, Kansas, the judgment, sentence and commitment of the defendant to the Kansas State Penitentiary, each was and is a nullity and wholly void and of no effect for the reason that the Court was without jurisdiction to receive and accept the said plea of guilty by reason of failure to comply with the provisions of R. S. 62-1304 of the Revised Statutes of Kansas, 1949, in that the Court failed to find and incorporate in the journal entry of judgment that the appointment of counsel over the objection of the defendant in said case would not be to his advantage, and, in addition, the Court further finds from Petitioner’s Exhibit A attached to his petition, and a statement by counsel for. the respondent that he was in possession of the same information as stated in said Petitioner’s Exhibit A, that the court reporter, Pete Kelly, made shorthand notes at the time said plea of guilty was entered, and the proceedings leading up thereto, but that said shorthand notes were subsequently lost; that they were not transcribed; that their correctness was not certified to, filed and made a part of the pleadings in said case as required by said R, S. 62-1304 of the Revised Statutes of Kansas, 1949.
(3.) “The Court further finds that in the month of November, 1958, a nunc pro tunc order was entered in said Crawford County case, whereby the Court made a finding by adding to the journal entry of judgment in said cause that the appointment of counsel over the objection of the defendant, Leo Tafarella, would not be to his advantage; that said nunc pro tunc order is and was a nullity, wholly void and of no effect for the reason that it adds something to the journal entry that never occurred.
(4.) “The court further finds that the writ of habeas corpus should be granted and the petitioner ordered released from the custody of the respondent within five (5) days.” (Numbers supplied.)
After rendition of the judgment the respondent, warden, perfected the instant appeal under a single specification of error. It reads:
“The trial court erred in finding that the District Court of Crawford County, Kansas, was without jurisdiction to accept Leo Tafarella’s voluntary plea of guilty because of failure to fully comply with G. S. 1949, 62-1304.”
In passing we note that in his brief, filed in this court, appellee states:
“The essential question before this court is whether the District Court of Crawford County, on September 26, 1949, had jurisdiction to accept appellee’s plea of guilty to the charge of first degree murder, in view of the provisions set forth in G. S. 1949, 62-1304.”
At the outset it can be stated that, after a careful and extended examination of the record in Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225, and in the case at bar, this court is convinced the facts, conditions and circumstances and, we may add except for lack of a transcript in the instant case, the issues involved in each case are so similar in nature that our decision in the Ramsey case must be regarded as a controlling precedent, compelling a conclusion that the record here presented establishes that the jurisdictional requirements of G. S. 1949, 62-1304, were satisfied by the findings made by the district court of Crawford County prior to its acceptance of appellee’s plea of guilty in that court. Therefore, based on what is said and held in Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225, to which we adhere and all pertinent portions of which are hereby made a part of this opinion by reference, we hold that the first portion of finding 2, down to and including the words “would not be to his advantage,” and all of finding 3, as heretofore quoted and so identified, made by the trial court, which in all fairness we pause to point out were made long prior to the rendition of our decision in the case just mentioned, are erroneous and cannot be approved.
With particular reference to the conclusion just announced with respect to finding 3, it should perhaps be stated, that after giving them consideration we have rejected all contentions made by appellee touching his claim that the nunc pro tunc order made on November 15, 1958, is void and of no force and effect because (1) he refuses to recognize that a fair interpretation of the recitals of such order is that the trial court actually made the required finding that the appointment of counsel over his objection would not be to his advantage at the time of the trial, but through inadvertence such finding was omitted from the journal entry; (2) we are convinced that all such contentions are effectively answered in Ramsey v. Hand, supra, particularly at pages 360 to 362, inch, of the opinion; and (3) he declines to accept established rules of this court recognizing the right, power and authority of a court to make its judgment rolls speak the truth.
By way of supplementing what appears in the Ramsey case at pages 360 to 362, inch, and in further support of what is there said and held with respect to the power of the court to enter judgments, decrees and orders mine pro tunc, it should be said that in this jurisdiction the hereinafter mentioned rules of law are well-settled and must be followed.
A judgment is one thing. The record of a judgment is a different thing, and what purports to be a record of a judgment may or may not be correct. (Tincknell v. Tincknell, 141 Kan. 873, 876, 44 P. 2d 212.) If not correct, the settled rule is that the trial court not only has the right but is under a duty to make the judgment rolls speak the truth. (Morton v. Morton, 149 Kan. 77, 81, 86 P. 2d 486; Bush v. Bush, 158 Kan. 760, 763, 150 P. 2d 168; Christisen v. Bartlett, 73 Kan. 401, 84 Pac. 530; The State v. Linderholm, 90 Kan. 489, 135 Pac. 564.) Such a right is inherent in the court and is not dependent for its existence upon any statute. (Bush v. Bush, supra, 760, 762; Elliott v. Elliott, 154 Kan. 145, 114 P. 2d 823.) No act of the parties, such as approval of an incorrect journal entry, can prevent the court from making such correction (Christisen v. Bartlett, supra, 401, 403) nor is such power lost by the lapse of time. (Christisen v. Bartlett, 73 Kan. 404, 85 Pac. 594 [rehearing]; Hart v. Hart, 98 Kan. 745, 746, 161 Pac. 585; The State v. Linderholm, supra, 489.) Hence such correction can be made at any time, notwithstanding the expiration of the term. (Overlander v. Over- lander, 126 Kan. 429, 434, 268 Pac. 828; State v. Frame, 150 Kan. 646, 648, 95 P. 2d 278; Elliott v. Elliott, supra, 145, Bush v. Bush, supra, 760, 765). This power can be exercised on the court’s own motion (Christisen v. Bartlett, supra, 404; Morton v. Morton, supra, 77), and it is therefore immaterial how the defect is brought to the court’s attention. (Morton v. Morton, supra, 77, 81). The correction may be made upon any satisfactory evidence and it is sufficient if it be based upon the personal knowledge and recollection of the judge. (Hart v. Hart, supra, 745, 746; Tincknell v. Tincknell, supra, 873, 877; Christisen v. Bartlett, supra, 401, 403; Overlander v. Overlander, supra, 429, 434; Gates v. Gates, 160 Kan. 428, 431 to 434, incl., 163 P. 2d 395.) The correction is to be made by nunc pro tunc order. ' (State v. Frame, supra, 646, 648; Elliott v. Elliott, supra, 145) not making an order now for then, but entering now for then an order which had been previously made. (Bush v. Bush, supra, 760, 763.) And the power to make the order 'may in the discretion of the court be exercised upon its own motion and without notice to the parties affected. (Christisen v. Bartlett, supra, 404.)
As heretofore pointed out the decisive statute involved in this appeal is G. S. 1949, 62-1304. Applicable provisions thereof are set forth at length at page 356 of the opinion in the Ramsey case and for that reason will not be here quoted. Suffice it to say that portions thereof, heretofore mentioned as jurisdictional, are there identified by inserted numbers (1), (2) and (3), while those referred tó as not being jurisdictional are identified by numbers (4) and (5).
Having established that the jurisdictional requirements of 62-1304 were satisfied by the findings made by the district court of Crawford County prior to its acceptance of the appellee’s plea of guilty; that the record of the judgment and sentence imposed on that plea was corrected by a valid nunc pro tunc order so as to speak the truth before the trial of the involved habeas corpus proceeding in such manner as to comply with the requirements of the portion of 62-1304, identified in the Ramsey case by number (5); and that such record was before the district court of Leavenworth County on the date it granted the writ, the only important question remaining in this case is whether standing alone, failure on the part of the appellant to show compliance with the provisions of that portion of 62-1304, identified by number (4) was sufficient to vitiate what was otherwise a valid judgment and thus warrant the granting of the involved writ.
In connection with the question just mentioned it may be admitted that the provision of 62-1304, identified as number (4) reads: “A record of such proceeding shall be made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall be filed and made a part of the files in the cause.”
It may also be conceded, in fact the parties have stipulated, the trial docket of the sentencing and the then district judge of Crawford County now contains the statement that “Practically same proceeding had in the court when Leo Tafarella was sentenced as were had when Roy Ramsey was sentenced, except that Court Reporter, Pete Kelly made the short hand notes and his note book was lost or destroyed when move was made from the school house occupied as temporary quarters while present city hall and court room was being built, so shorthand notes cannot be transcribed.”
Appellee contends that, even though it be determined — as we have here held — that the record presented discloses compliance with the requirements of the portions of 62-1304, supra, identified in the Ramsey case by numbers (1), (2), (3) and (5), the conceded inability of the appellant to establish compliance with the requirements of the hereinabove quoted provision of such section of the statute (identified in the Ramsey case by the number [4]) vitiates the judgment and sentence of the district court of Crawford County and therefore, in and of itself, requires an affirmance of the judgment granting the involved writ.
Nothing would be gained and it would only burden our reports to labor the question thus raised by the appellee. It suffices to say that it has recently been decided contrary to his position by this court in Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, where in disposing of a similar contention, we held:
“In a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of G. S. 1957 Supp., 62-1304, (specified in Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225), insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent habeas corpus action are insufficient to overcome this evidence. The failure of the court reporter to be present and make a record of the proceedings under such circumstances is merely an irregularity which is not sufficient to vitiate the proceedings.” (Syl. fl.) (Emphasis supplied.)
For another decision of like import, following Goetz v. Hand, supra, see Tibbett v. Hand, 185 Kan. 770, 347 P. 2d 353.
Based on the foregoing decisions, as well as Ramsey v. Hand, supra, we are required to conclude that where — as here — the record establishes that the jurisdictional requirements of 62-1304, supra, have been met by an otherwise adequate record, failure of the court reporter to make and file a transcript of the record of the proceedings in a criminal action in conformity with the provisions of such statute is merely an irregularity which is not sufficient to vitiate the proceedings or nullify the judgment and sentence.
What has been heretofore stated and held means that the judgment of the district court granting the writ of habeas corpus and directing the appellees discharge is erroneous and must be reversed.
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The opinion of the court was delivered by
Parker, C. J.:
This appeal stems from an order of the district court where it was adjudged that appellees were entitled to a fractional portion of a maize crop.
In the interest of clarity, appellees Welker will be sometimes referred to as the lessors and appellants Barton as the lessees.
The facts leading up to this appeal will be related as briefly as the state of the record permits.
On February 2, 1953, Ray X. Welker and Mabel D. Welker, as lessors, entered into a farm lease and .purchase agreement with Láveme and Dorothy Barton, as lessees, for a term of five years. The leasing term was to begin on August 1,1953, arid end August 1, 1958. The lease, insofar as is pertinent to an accurate determination of this appeal, stated that the lessors owned, in addition to certain described farm lands and improvements thereon, machinery, the aggregate total value of whicji was $12,900.00. Among other things, the lessees agreed to purchase the machinery by paying twenty-five per cent or $3,223.00 upon execution of the contract contained in the leasing agreement and the balance was to be paid by certain crop shares anually with interest at six per cent. The stated amounts were to be apportioned during the five-year period according to the terms of the lease. The lessees entered into possession and during their occupancy made payments towards the purchase of the machinery.
Later, toward the end of the five-year term and on April 29, 1958, an agreement was signed by the parties to this lawsuit. It appears that at the time this agreement was signed, an amount of money was still due and owing on the machinery. This instrument in part reads:
“. . . that Lessees may plant maize on said land to mature after August 1, 1958, and that Lessees will give possession of said land on August 1, 1958, except for the right to harvest said maize. That Lessees will harvest said maize at their own expense and that the proceeds will be divided as follows: Two-fifths (2/5th) to Lessees minus any cash rent which is owing on August 1, 1958; two-fifths (2/5th) to Lessors, and the other one-fifth (l/5th) shall be applied to'payment of amounts owing Lessors on machinery purchase contract unless Lessees shall sooner pay said contract in full, which contract is payable August 1,1958. If Lessees have paid said machinery contract by August 1, 1958, they shall be entitled to said one-fifth of said maize.
“This agreement shall not vary the terms or rights of the parties in the machinery purchase contract.”
A few days prior to the expiration of the five-year term, the lessees returned the farm machinery to the lessors. At this time in the sequence of events, apparently the parties to the lease made some effort to negotiate their financial arrangements under the lease. This is evidenced by a letter dated July 28, 1958, which was written by counsel for appellants (lessees) and addressed to Ray X. Welker, one of the lessors, which in substance purported to convey a check “in the sum of $536.91 as full and complete settlement.” Four other items, not included in the above amount, were mentioned separately. The letter further stated that the lease was now terminated and appellee (lessor) had absolute possession of the farm and the machinery.
The present controversy arose when an action was filed by the Bartons to restrain the Welkers from harvesting the maize crop and on October 7, 1958, a temporary restfaining order was issued.
• By the terms of a journal entry dated October 11, 1958, the dis- • trict court, by agreement of the^ parties, agreed to assume jurisdiction of the question concerning ownership of the maize crop and found in part as follows:
“The Court Finds that the Farm Lease and Purchase agreement made and dated the 2nd day of February, 1953, was duly and legally entered into by and between the parties thereto and was and is a valid document, binding on the parties litigant; that Agreement made and dated the 29th day of April, 1958, was and is a valid document, binding on the parties litigant; that on Saturday, July 26th, 1958, the parties litigant made a full, and complete settlement pursuant to said Farm Lease and Purchase Agreement, the terms of which were fully set forth in Mr. Oswald’s letter of Mr. Welker under date of the 28th day of July, 1958; and that said letter did not modify nor set aside the Agreement made by and between the parties litigant on the 29th day of April, 1958, nor did the Defendants consider that said letter modified or set aside said Agreement.”
Remaining portions of the journal entry pertinent to the appeal show that the court found that appellants (lessees) were entitled to harvest the crop of maize pursuant to the agreement dated April 29, 1958; that the crop was to be stored until further order of the court; that the temporary restraining order was made permanent; and that the question of the proportionate shares of said crop of maize owned by the parties should be and was reserved for further consideration.
By a journal entry dated November 21, 1958, the district court ordered that each party take two-fifths share of the stored maize-crop and that the other one-fifth, over which there was disputed ownership, remain in storage until the court determined to whom, it belonged.
The trial court rendered its decision with respect to the question: reserved on December 11, 1958, in the form of a Memorandum-Opinion which sets forth the decisive facts, outlines the issue, and states the reasons for its decision with such clarity we believe it should be quoted at length. It reads:
“It seems to me that the contract of April 29, 1958, evidences an intent on the part of all parties thereto that the defendants should receive the final l/5th part of the maize unless they had received, by August 1st, the entire purchase price of the machinery in the manner provided in the contract of February 2, 1953, and, conversely, that the plaintiffs should be entitled to no part of such maize unless by August 1st they had paid said entire purchase price, according to the terms of the 1953 contract. The defendants’ agreement to apply this share of the maize to the payment of amounts due on the machinery was obviously designed to induce the purchasers to fulfill their purchase contract, and did not, in my opinion, militate against the defendants’ right to receive and retain the same merely because the plaintiffs turn back the machinery and decline to complete payment of the purchase price thereof.
“It would do violence to my concept of ‘payment’ to designate as such the settlement which the parties made of their disputes. Rather than being held for the payment of the price of the machinery, the plaintiffs were released therefrom. Nowhere in the 1953 agreement do I discern any provision relieving the plaintiffs from the obligation to pay in money the full purchase price of the farm machinery, despite the fact that defendants became entitled to possession under certain conditions. When the parties made their settlement, the plaintiffs were not enforcing any contractual right to turn back the machinery in payment of the balance due, and, in my judgment, their delivery of the machinery did not constitute payment. The compromise of their differences by the parties, through which the defendants took back the machinery and in turn forgave the balance due them, did not affect the defendants’ right to retain the fruits of their April agreement.
“It appears just to me that defendants bear the costs of this lawsuit. Their action initially gave rise to this litigation, even though it was later broadened by agreement to include the question discussed in the Memorandum. Accordingly, judgment will be entered awarding to defendants the l/5th part of the majze which has been in dispute and assessing the costs against defendants.”
Judgment was duly entered in accord with the foregoing opinion. Thereupon the Bartons filed a motion for a new trial, based on the single ground the ruling of the trial court in holding the Welkers were entitled to the one-fifth of the 1958 crop of maize, as set forth in the Memorandum Opinion, was erroneous. When this motion was overruled they perfected the instant appeal where, in their brief, they concede the one and only question involved on appellate review is whether the Rartons (appellants) or the Welkers (appellees ) are entitled to the disputed one-fifth of the maize crop.
Pointing to the fact that in its decision of October 11, 1958, disposing of the injunctive feature of the case, the trial court found that on July 26, 1958, the parties entered into a full and complete settlement pursuant to the farm lease and purchase agreement, appellants, as we understand them, contend that all matters in controversy between the parties were disposed of by the July 28, 1958, letter and the subsequent acceptance and cashing of the cashier’s check therein enclosed. Assuming, arguendo, that finding is to be construed as holding all matters involved under the contract of February 2, 1953, had been settled, we cannot agree it disposed of all matters in controversy between the parties. The trouble with this contention of appellants is that in connection with the same finding the court expressly held, under another finding which is equally binding upon the parties, that they did not intend to change or alter their rights under the subsequent contract of April 29, 1958. In other words the court found there had been a settlement of one contract but not the other. Since neither party has seen fit to abstract the evidence adduced in support of either finding, we must assume there was evidence to support both findings (See West’s Kansas Digest, Appeal & Error, § 907 [2]; Hatcher’s Kansas Digest [¡Rev. Ed.], Appeal & Error, §§ 419, 421; and the numerous decisions tihere cited). We must also proceed on the premise such findings were within the province of the trial court.
Under our decisions, an accord and satisfaction is the result of an agreement between the parties, and, like all other agreements, it must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. And if a creditor is to be held to abate his claim against a debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor. (Harrison v. Henderson, 67 Kan. 194, 200, 72 Pac. 875; Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166; Sigler v. Sigler, 98 Kan. 524, 532, 158 Pac. 864; Manning v. Woods, Inc., 182 Kan. 640, 643, 324 P. 2d 136.) Moreover, in Vigneron v. List & Hallett Construction Co., 130 Kan. 676, 288 Pac. 570, we held that where — as here — it appears an issue of fact exists as to what the payment and the accord and satisfaction actually covered, that question is to be determined by the trier of fact on the basis of whether there has been a meeting of the minds of the parties and the unity of purpose and intention as to the extent of the settlement.
Applying the rule of the foregoing decisions we have no hesitancy in concluding the trial court properly concluded (as set forth in the journal entry of October 11, 1958) that the letter of July 28, 1958, did not modify or set aside the agreement made between the parties on April 29, 1958. Indeed proof of the fact such letter and acceptance of the check did not consummate an accord and satisfaction of the last mentioned contract with the understanding and unity of purpose required under our decisions, is to be found in the letter itself. Resort thereto discloses two contradictory statements. One was to the effect the check therein included, which it cannot be denied was for much less than the amount then due -for the purchase price of the machinery, was offered, along with the return of such machinery, as full and complete settlement. The other reads “The Lease is now terminated. You have absolute possession of the farm and the machinery.” Obviously both statements could not be true for to give full force and effect to the one last mentioned would mean, which neither party now contends, that appellants would have no right whatsoever in and to any part or portion of the maize crop planted pursuant to the terms and conditions of the separate and distinct contract of April 29, 1958. It follows many contentions advanced by appellants to the effect all rights under such contract, as between the parties, have been settled and disposed of by reason of the claimed accord and satisfaction lack merit and cannot be upheld.
From what has been heretofore stated it becomes obvious that, under the limited issue (who is entitled to the disputed one-fifth of the maize crop?) involved on this appeal, our obligation is to construe the additional and separate agreement entered into between the parties on April 29, 1958, on the basis of their intention at the time of its execution. Therefore we turn to such issue mindful as we do so that where — as here — the terms and provisions of a contract are ambiguous, obscure or susceptible of more than one meaning such terms and provisions must be considered in the light of the universal rule (see Heckard v. Park, 164 Kan. 216, 188 P. 2d 926; Tate v. Stanolind Oil & Gas Co., 172 Kan. 351, 240 P. 2d 465) that where ambiguity- or uncertainty is involved the intention of the parties is not ascertained by punctuation alone or by resort to literal interpretation of an isolated provision but by consideration of the instrument as a whole, circumstances existing when the agreement was made, the object sought to be attained, and other conditions tending to clarify the real purpose and intent of the parties.
Appellants strenuously urge that, having settled their obligation under the machinery purchase contract by return of the machinery and payment of the amount heretofore mentioned, they are to be considered as having “Paid” such contract by August 1, 1958, within the meaning of the term “Paid” as it appears in the contract of April 29, 1958, and hence are entitled to the disputed share of the maize crop. We believe this construction of the last mentioned agreement not only overlooks but entirely disregards preceding language of the same instrument providing that the other one-fifth of the maize crop should be applied to payment of amounts owing lessors (appellees) on the machinery purchase agreement unless lessees (appellants) should sooner pay said contract in full by August 1, 1958. To concede, as appellants contend and we repeat for purposes, of emphasis as the trial court found, tire parties litigant made a full and complete settlement pursuant to the Farm Lease and Purchase Agreement does not mean that appellants paid that contract in full as required by the terms of their subsequent agreement. Indeed, the undisputable facts of record are that they did not do so.
Under the foregoing circumstances, standing alone, we believe there is sound ground for the trial court’s conclusion that the contract of April 29, 1958, evidences an intent on the part of all parties thereto that the defendants (appellees) should receive the final one-fifth part of the maize unless they had received, by August 1st, the entire purchase price of the machinery in the manner provided in the contract of February 1953, and, conversely, that the plaintiffs (appellants) should be entitled to no part of such maize unless by August. 1, 1958, they had paid the entire purchase price, according to the terms of the 1953 contract. Even so it is not required that,we base our decision entirely upon that premise. It suffices to say we have reviewed the entire record in the light of the rule to which we have previously referred and, after doing so, are convinced the facts, conditions and circumstances there presented disclose the trial court’s construction of the April 29, 1958, contract, as set forth in the first two paragraphs of its heretofore quoted Memorandum Opinion, was proper and that its subsequent judgment, rendered in accord with the views expressed in such opinion, must be upheld. Therefore the judgment must be and is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an original proceeding in habeas corpus. The petitioner is presently confined in the Kansas State Penitentiary pursuant to an order of the district court of Meade County, Kansas, entered on the 30th day of August, 1958, wherein the petitioner was sentenced to a term of one to five years for the crime of issuing a worthless check.
The question presented is whether the district court of Meade County, which originally tried the petitioner on the worthless check charge, fully complied with the jurisdictional requirements of G. S. 1957 Supp.," 62-1304.
The petitioner was charged in the district court of Meade County, Kansas, with the offense of issuing a worthless check. On August 30, 1958, the petitioner appeared before the court without counsel of his own choice and the court appointed E. Keith Beard, a member of the Meade County Bar, to represent him. The petitioner was then arraigned and entered a plea of guilty to the charge set forth in the information. He was thereupon sentenced to the Kansas State Penitentiary where he is now confined.
From a letter annexed to the petition it appears that the official court reporter was on vacation at the time the petitioner entered his plea, and therefore no record was made by the reporter of the appointment of counsel.
The petitioner charges that the Meade County district court was without jurisdiction to accept a plea of guilty for the reason that it failed to give him an opportunity to consult counsel of his own choosing and denied him an opportunity to consult with any counsel. The petitioner then alleges:
“. . . If the court did appoint counsel as alleged in the ‘Judgment of Conviction’ it was without your petitioner consent or knowledge and such counsel never conferred with him concerning the offense charged or the penalty therefore . . .”
The petitioner further denies that he was represented by counsel and alleges that “the failure of the reporter to make the required record now denies him the means with which he could prove that he did ask to consult counsel of his own choosing and was denied.”
The “Judgment of Conviction” filed in the district court of Meade County on the 2nd day of September, 1958, in the petitioner’s case states the matter came on for hearing on the 10th day of August, 1958, and after reciting the charge and the statutes pursuant to which the action was filed, reads in part:
“The defendant, Gene Goetz, appeared in court without counsel of his own choice. Upon interrogation by the court as to whether he had sufficient funds with which to retain counsel, he stated he did not, and the court duly appointed E. Keith Beard, a qualified, licensed and regularly practicing attorney in Meade County, Kansas, to represent defendant. The State of Kansas appeared by and through Bradley Post, tire duly appointed, qualified and acting County Attorney in and for said County of Meade.
“Thereupon, the court inquired of the defendant and counsel whether or not a sufficient preliminary hearing was held, and the court was advised that preliminary hearing was waived by the defendant.
“Thereupon, the defendant was asked by the court whether or not he knew ■ that he was entitled to trial by jury, at which time he stated he wished to waive jury trial and have trial held before the court. Defendant thereupon advised the court he was ready to proceed with formal arraignment. Formal arraignment was then held and the defendant and his counsel answered in the affirmative upon inquiry by the court as to whether or not they were ready to enter a plea to the charge as read. Upon being asked what the plea was, defendant answered ‘Guilty.’ The court then inquired of the defendant whether or not he knew the maximum penalty which could be assessed against him under the statutes and the defendant stated that he did.
“Thereupon, the court accepted the defendant’s plea of ‘Guilty’ and found the defendant guilty as charged in the information. Upon the court’s inquiry as to whether or not there was any reason to urge why sentence should not be imposed at this time was answered in the negative.
“Thereupon, no sufficient cause being alleged or appearing to the court why judgment should not be pronounced, with the defendant and Iris duly appointed attorney being present in person in open court and Bradley Post being present for the state of Kansas, the following judgment and sentence was entered in accordance with 1949 G. S. of Kansas, 21-554 and 21-555.”
The foregoing “Judgment of Conviction” was approved by Bradley Post, County Attorney, and E. Keith Beard, “Attorney appointed by the court to represent defendant.” (Emphasis added.) It was also signed by the district judge.
The allegations of the petitioner that he was not represented by counsel, that the court denied him an opportunity to consult counsel, that if the court did appoint counsel it was without his knowledge and consent, and that his appointed counsel never conferred with him, are denied by the respondent. Furthermore, they are wholly uncorroborated. This court is committed to the rule that the unsupported and uncorroborated statements of the petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of his writ where the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. (Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P. 2d 1081, and cases cited therein.) Further, it is presumed that an attorney appointed to represent an accused in a criminal case discharged all duties imposed upon him by the provisions of 62-1304, supra, and this presumption is not overcome by the uncorroborated statements of the petitioner in a habeas corpus proceeding.
Conceding that no record of the proceedings was made by the court reporter or transcribed and reduced to writing showing the appointment of counsel as provided in G. S. 1957 Supp., 62-1304, the question is whether compliance with this provision of the statute is necessary to prove that the jurisdictional requirements of the above section of the statute have been met.
The provisions of G. S. 1949, 62-1304, were recently before this court for review in Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225. Reference is made to the Ramsey opinion and to the provisions of the foregoing statute as numbered and quoted therein. It should be noted the provisions of G. S. 1957 Supp., 62-1304, presently before the court, are identical with the provisions of G. S. 1949, 62-1304, quoted in the Ramsey case.
It was determined in the Ramsey case, where no counsel was appointed to represent the accused, that compliance with only the first three numbered provisions of the statute were jurisdictional to the acceptance of a plea of guilty. The provision of the statute with which we are here concerned is numbered [4].
It was recognized in the Ramsey case, after reviewing Selbe v. Hudspeth, 175 Kan. 154, 259 P. 2d 204, and other decisions cited therein, that the primary right of an accused to a trial, safeguarded as provided by the statute, must be disclosed by a record which shows such rights were safeguarded. It was further said:
“. . . Proof that tire foregoing jurisdictional requirements have been met, when challenged, can be established only by a record of such procedings made as provided in the statute. These provisions are identified by numbers [4] and [5] in the quoted portion of 62-1304, supra.” (p. 359.)
The question resolves into whether, on the facts and circumstances here presented, proof that the jurisdictional requirements of the statute have been met requires compliance with both provisions [4] and [5], or whether compliance with [5] only is sufficient. This resolves into whether the failure of the court reporter to make a record of the proceedings is sufficient to render the conviction and sentence void.
G. S. 1949, 62-1516, provides in part as follows:
“When judgment is rendered, or sentence of imprisonment is imposed, upon a plea or verdict of guilty, a record thereof shall be made upon the journal of the court, which record among other things shall contain a statement of the offense charged, and under what statute; the plea or verdict and the judgment rendered or sentence imposed, and under what statute, and a statement that the defendant was duly represented by counsel, naming such counsel, or a statement that the defendant has stated in writing that he did not want counsel to represent him ... It shall be the duty of the court personally to examine with care the entry prepared for the journal, or the journal when written up, and. to sign the same and to certify to the correctness thereof.” (Emphasis added.)
The foregoing statutory section was discussed in the Selbe case, but there the journal entry was materially deficient in many of the particulars specified in 62-1304, supra, and in 62-1516, supra.
All presumptions are in favor of the regularity of proceedings, and it will be assumed that upon approval of the “Judgment of Conviction” a record thereof was made upon the Journal of the district court by the clerk under the direction of the court. It thereby became the record of the judgment reciting the essential facts specified in 62-1304, supra, and in 62-1516, supra. (See, State v. Linderholm, 90 Kan. 489, 135 Pac. 564.) A journal entry speaks as of the date of the judgment (Miller v. Phillips, 92 Kan. 662, 141 Pac. 297; and Gates v. Gates, 160 Kan. 428, 163 P. 2d 395) and the record of a judgment entered on the journal speaks as of the date of the judgment.
The recital of a judgment record as to facts is prima facie sufficient to establish the facts recited and cannot be disregarded without clear and satisfactory proof to the contrary. (See, O'Driscoll v. Soper, 19 Kan. 574.)
The evil which 62-1304, supra, was designed to correct was noted in both the Ramsey and Selbe cases. Prior to the enactment of the foregoing section of the statute, this court was confronted on many occasions with contentions growing out of the failure of an accused to be represented by counsel, and the obvious intent of the statute was to safeguard the accused’s right to have counsel.
In the instant case counsel was appointed to represent the petitioner in the district court of Meade County and the judgment record is prima facie evidence of the facts which it recites showing full compliance with the jurisdictional requirements of 62-1304, supra, insofar as they may be said to have application where counsel is appointed to represent an accused. The uncorroborated statements of the petitioner are insufficient to overcome this evidence.
Obviously, if the court reporter were present in the trial court to make a record of the proceedings relating to the appointment of counsel, such record transcribed and reduced to writing by the court reporter and certified as required by the statute, showing full compliance with the jurisdictional requirements, would be .merely cumulative of the facts which the record already discloses, because 62-1304 imposes upon the trial court the duty to enter the substance of the proceedings provided for in this section of the statute of record in the journal and to incorporate them in the journal enfry of trial and judgment. Similar duties are imposed upon the trial court by the provisions of 62-1516, supra.
The instant case is somewhat analogous to Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219, where the procedure relating to the appointment of counsel did not fully comply with G. S. 1949, 62-1304. It was there held that any irregularity in the appointment, of counsel to represent the accused was an afterthought of the petitioner after having talked to his present counsel, and the failure to comply with the statute did not render the proceedings void. There, however, the accused pleaded not guilty and upon trial before a jury was found guilty.
We therefore hold in a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of 62-1304, supra, insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent habeas corpus action are insufficient to overcome this evidence. The failure of the court reporter to be present and make a record of the proceedings under such circumstances is merely an irregularity which is not sufficient to vitiate the proceedings.
The petitioner’s writ of habeas corpus is denied. | [
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|
The opinion of the court was delivered by
Wertz, J.:
This was an action brought in the district court by The Commercial National Bank of Kansas City, Kansas (appellee), against Violet L. DeVore (appellant) and other defendants not material herein to quiet title to three quarter sections of land sit uatecl in Franklin county. From a judgment in favor of appellee, defendant Violet L. DeVore appeals.
The facts are as follows: W. M. DeVore, a long-time resident of Williamsburg, Franklin county, died testate June 4, 1931, leaving as his sole survivors a son, Howard R. DeVore (age, fifty-seven) and a granddaughter, Margaret Fogle (age, twenty). He was a farmer, cattleman and president of the Williamsburg State Bank. His will and codicil were admitted to probate in Franklin county July 22, 1931; the estate was fully administered, and final settlement of the estate and discharge of the administrator with the will annexed was ordered July 17, 1934. No appeals were taken from that order, and the will was not construed.
At the time of his death W. M. DeVore owned the three quarter sections of land which are the subject matter of this action. In paragraph 11 of his will, W. M. DeVore devised the above-mentioned real property to his son, Howard, for life, and upon the death of Howard to the Kansas Trust Company in trust. The trustee was directed to sell the land, invest the proceeds in securities and pay the income therefrom to a certain named school district in Franklin county (Williamsburg) at semiannual periods to be used by that school district to maintain a course in vocational agriculture. The will provided that if the named school district should cease to exist and a new one should be created, then the income was to be paid to the new school district for the same purpose, and further that if the named school district ceased to exist and no other school district was created, or if the named school district or its successor “shall fail for a period of one school year to maintain a course in vocational agriculture in said school, then this trust shall cease and terminate, and the principal of said trust fund shall be by said trustee paid to my heirs at law according to the laws of descent and distribution of the state of Kansas.” It is undisputed that the appellee is the legal successor to the trustee named in the will — the Kansas Trust Company — and the trial court so found.
Following the death of his father in 1931, Howard took possession of the land in question and remained in possession thereof until his death. During this period the appellee, as trustee under the will of W. M. DeVore, kept a watchful eye on the property and on at least one occasion contacted Howard with reference to the payment of taxes.
A few months. prior to his death, Howard was married to the appellant. He died testate May 17, 1956) leaving as his sole survivors his wife (appellant) and his daughter, Margaret Fogle. Administration of his estate was begun nearly a year later and his will was admitted to probate in Franklin county April 3, 1957. Appellant was appointed executrix of the estate. Howard’s will devised and bequeathed all his property, real and personal, to her as his surviving spouse.
On May 17, 1957, the appellee filed its petition in the Franklin county probate court, alleging ownership, as trustee, of the land in question and claiming title by virtue of the will of W. M. DeVore, and asked that letters of appointment as testamentary trustee be granted. Notice was given to all interested parties as provided by law, including notice to appellant individually and as executrix of the estate of Howard R. DeVore. Appellant, individually and as executrix of Howard’s estate, filed exceptions and motions to the petition, and it was amended. On May 24, 1957, the probate court appointed the appellee as special trustee under the will of W. M. DeVore and stated that the trustee should not have power or authority to sell the land in question or to make any distribution of the income from the trust res until the dispute over ownership of the land was settled. On the same day, appellee filed its sworn “inventory of trust estate,” stating that as trustee it was the legal owner, in trust, of the three quarter sections of land.
Upon motion of appellee, the probate court, June 11, 1957, issued an order authorizing the appellee, as testamentary trustee, to file a suit in the proper court for a declaratory judgment interpreting the will and codicil of W. M. DeVore to quiet title to the land in question. Appellant did not appeal from that order. Pursuant to that order, appellee filed this action in the district court of Franklin county for that purpose.
On May 31, 1957, appellant, as executrix of the estate of Howard R. DeVore, filed her inventory and appraisement in that estate and listed therein, as an asset, the three, quarter sections of land in question.
Issues were joined in the district court action and the case proceeded to trial.
The trial court made findings of fact substantially in accord with those heretofore related, ánd concluded as a matter of law as follows:
“1. This action is brought for the purpose of quieting title and interpreting the provisions of Item 11 of the will of W. M. DeVore, Deceased, and the District Court has jurisdiction to determine all issues raised by the pleadings.
“2. From the words of the last will and testament and codicil thereto, its language, provisions and all parts thereof, and from the nature and extent of the testator’s property and the various devises and bequeaths and dispositions made of his property by said last will' and testament, the Court concludes that it was the intention of the testator to cireate and that he did create in his son, Howard R. DeVore, a life estate, and no further interest other than a life estate, in the North Half and the Southeast Quarter of Section 7, Township 18, Range 18, Franklin County, Kansas, and that said life estate terminated upon May 17, 1956, the date of the death of said Howard R. DeVore.
“3. The fee title to the North Half and the Southeast Quarter of Section 7 is vested in the plaintiff to be held in trust for the benefit of the Williamsburg Rural High School District all in accordance with and subject to the limitations of Item 11 of the will of W. M. DeVore, deceased.
“4. Item 11 of the will also creates in the heirs of W. M. DeVore, Deceased, a possibility of reverter should the School District ever cease or fail for one year to maintain a course in vocational agriculture. Upon the happening of that possible event the trust fund should be by the trustee paid to the testator’s heir to be then determined.
“5. The public charitable trust and the possibility of reverter to the heirs are both valid and neither violates the rule against perpetuities.”
The court entered judgment in accordance therewith, quieting title to the land in question in the appellee, from which judgment this appeal was perfected.
The first question presented is whether the provisions contained in paragraph 11 of the W. M. DeVore will violate the rule against perpetuities. Appellant contends that the devise in trust for the benefit of the school district does, in fact, violate the rule and is, therefore, null and void because (1) title to the three quarter sections of land devised in trust never actually vests in the trustee within the period of the rule for the reason that the trustee and beneficiary are limited to the spending of the income from the corpus and no express authority is given to the trustee to dip into the principal of the trust, and (2) paragraph 11 of the will indicates the primary intention of the testator was to devise the fee in the land to his heirs at law at a date so remote that it violates the rule. Appellee, on the other hand, contends that upon the death of the testator, W. M. DeVore, it acquired a vested remainder interest in the land, subject to Howard’s life estate and to defeasance upon the happening of certain events specified in the will, and, therefore, appellee now has the complete title to the land in trust for the benefit of the school district.
At the outset it may be stated that a devise in trust for educational purposes, such as the one involved herein, creates a public char itable trust (Washburn College v. O’Hara, 75 Kan. 700, 704, 90 Pac. 234; In re Estate of Porter, 164 Kan. 92, Syl. ¶ 3, 187 P. 2d 520; 14 C. J. S. Charities § 15a, pp. 444-445), and it may be limited to a particular educational purpose or use (14 C. J. S. Charities § 15b, pp. 445-446). Such trusts are favorites of the law which must be upheld whenever possible, and once it has been determined a will contains, language creating the trust, other language to be found therein which is susceptible of more than one construction must be liberally construed for the purpose of carrying out the intention of the donor. (In re Estate of Porter, supra; In re Estate of Woods, 181 Kan. 271, 282, 283, 311 P. 2d 359.)
It is the well-established rule in this jurisdiction that the intention of the testator is to be determined from the whole will — from the four corners of the instrument when all provisions of the will are considered without deleting any part • thereof. (In re Estate of Yetter, 183 Kan. 340, 328 P. 2d 738; In re Estate of Woods, supra, 275, 277; Diver v. Hendrix, 178 Kan. 253, 257, 284 P. 2d 1080; Walker v. Koepcke, 177 Kan. 617, 622, 282 P. 2d 382; Beall v. Hardie, 177 Kan. 353, 356, 279 P. 2d 276.) In examining the will in its entirety, it becomes clear that the testator’s intention or primary purpose was to devise the land in question to appellee in trust for the benefit of the school district. He, then, directed that in the event the primary purpose of the trust should ever fail, the corpus should go to his heirs at law.
Under this situation, what sort of an interest did the appellee acquire in the property? The very idea of a life estate, such as was created in Howard by the will, presupposes a fee existing elsewhere than in the tenant for life (In re Estate of Woods, supra, 280; Alexander v. Goellert, 153 Kan. 202, 205, 109 P. 2d 146). Thus, in the instant case, die fee was vested in the appellee as trustee, and the trust in favor of the school district took effect immediately upon the termination of Ploward’s life estate, unless appellant’s contention that the provisions in the will violate the rule against perpetuities is correct.
Generally speaking, the rule against perpetuities is that no future interest in property can lawfully be created which does not necessarily vest within twenty-one years after some life or lives presently in being, excluding from such computation of years the incipient life of infants in ventre sa mere. It is grounded traditionally on a farsighted public policy which frowns on the total exclusion of property from commerce for long periods of time .and is supported by the practical needs of modern times. (In re Estate of Woods, supra, 280.)
However, this court has held that no remainder will be construed to be contingent which may, consistently with the words used and the intention expressed, be deemed vested. (Bunting v. Speek, 41 Kan. 424, 21 Pac. 288; In re Estate of Woods, supra, 280, 281.) The law favors the early vesting of testamentary gifts, and unless a contrary intention clearly appears in a testamentary instrument, an interest will be regarded as vested, rather than contingent. (Tretbar v. Aged Ministers Home, 180 Kan. 18, 21, 299 P. 2d 58, and cases therein cited; In re Estate of Woods, supra, 281.) Furthermore, an estate may properly vest within a life or lives in being, irrespective of how long possession and enjoyment of the property may be postponed. A vested interest does not necessarily include a right to possession and if the title is vested, the interest is not subject to the rule, however remote may be the time when it may come into possession, inasmuch as the rule has reference to the time within which title vests. (In re Estate of Woods, supra, 281, and cases cited therein.)
In accordance with the foregoing rules of law and the intention of the testator, as expressed in the will, it is apparent that legal title to the real estate in question vested in the appellee as trustee and equitable title vested in the school district upon the death of the testator (W. M. DeVore) with the enjoyment of possession thereof postponed until such time as the life estate created in Howard terminated. The fact that the corpus of the trust was to be paid over to W. M. DeVore’s heirs at law upon the failure of the trust, if it did fail, does not change the result and does not make the interest of the trustee contingent rather than vested. Rroadly speaking, the distinction between a contingent estate and an estate vested subject to defeasance appears to be that if the condition on which the estate depends is precedent, the estate is contingent; if subsequent, it is vested subject to defeasance. (See annotation 131 A. L. R., pp. 712-725; Simes and Smith, The Law of Future Interests (2d Ed.), § 147, pp. 153-155.) For a general discussion on the subject of vested and contingent remainders, see Faris v. Nickel, 152 Kan. 652, 107 P. 2d 721, and McLean v. Stanley, 134 Kan. 234, 5 P. 2d 839.
Ry the terms of the will, the land in question was devised to ap pellee in trust subject to a life estate, with the added provision that it was to go to W. M. DeVore’s heirs at law upon the happening of a certain event, which, in fact, might never happen. Thus, the condition on which appellee’s estate depended was a condition subsequent and, therefore, appellee acquired a vested estate in trust subject to defeasance.
The interest created in W. M. DeVore’s heirs at law was a possibility of reverter (Simes and Smith, The Law of Future Interests (2d Ed.), § 281, pp. 327-329), and as such is not subject to the rule against perpetuities. (Simes and Smith, The Law of Future Interests (2d Ed.), § 294, pp. 353-354, and § 1239, pp. 146, 148; 2 Bogert, The Law of Trusts and Trustees, § 347, p. 509.) Nor can the equitable estate determined to be vested in the school district be declared ineffective because the use might be in perpetuity, inasmuch as charitable trusts are not subject to the rule. (In re Estate of Woods, supra, 282; 2 Bogert, The Law of Trusts and Trustees, § 352, pp. 518-520; 70 C. J. S. Perpetuities § 30, pp. 613-614.) We are committed by our many pronouncements on the rule against perpetuities and we must, therefore, conclude that the legal title involved here vested in appellee on the death of W. M. DeVore, subject to defeasance upon the happening of certain specified events, and was not in violation of the rule. (In re Estate of Woods, supra, 282.)
The second question presented is whether the district court had jurisdiction to hear and determine this lawsuit. Appellant contends that since the appellee was making a claim to land which was listed and inventoried in the estate of Howard R. DeVore, deceased, it was attempting to get assets out of such estate and, therefore, the probate court had exclusive jurisdiction to hear and determine the case; hence, the district court was without jurisdiction.
We do not agree with this contention. As heretofore stated, the legal title to the property involved vested in appellee as trustee on the death of W. M. DeVore with the enjoyment and possession thereof postponed until Howard’s life estate terminated. Upon Howard’s death his life estate terminated, and there was nothing left to pass to his heirs or personal representatives. The appellee, as the remainderman, was entitled to the immediate possession thereof (31 C. J. S. Estates § 65b, p. 81). Thus, the property never became an asset of Howard’s estate, and the mere fact that appel lant, as executrix of his estate, erroneously listed it in her inventory as an asset did not make it one, nor was the appellee, as the true owner, required to come into the probate court to establish its title to the property. Title to the property in question having vested in the trustee as aforementioned, if appellant was claiming any interest therein in her representative capacity in Howard’s estate, it was incumbent upon her to have brought an action in the district court to bring such assets into Howard’s estate. (Hildenbrand v. Brand, 183 Kan. 414, 327 P. 2d 887; Coffey v. Shrope, 180 Kan. 621, 306 P. 2d 164; In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818.)
The record has been thoroughly examined and no error has been found. In view of what has been said above the judgment is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal in a criminal case by defendant from an order of the trial court overruling his motion to withdraw his plea of guilty and to vacate the judgment entered thereon.
We are not concerned with the circumstances out of which arose the prosecution of the defendant. The record in the trial court, insofar as pertinent, may be briefly stated. On January 17, 1958, defendant, Paul Downs, a practicing lawyer of some years’ experi ence, appeared in the district court for arraignment upon an information charging him with an offense under G. S. 1949, 40-247, to which he entered a plea of not guilty. The case was set for trial on February 5, at which time defendant appeared and at his request the case was continued to February 12.
On the latter date, defendant appeared in person and with his counsel, Robert P. Anderson, a duly licensed and practicing attorney and a member of the bar in this state, and, with the consent of the court, defendant withdrew his plea of not guilty and entered a plea of guilty to the crime as charged in the information. Upon inquiry by the court, defendant said he could give no legal reason why sentence should not then be imposed. Following statements made by the county attorney and Mr. Anderson as counsel for defendant, the court sentenced defendant to confinement in the county jail for one year and ordered him to pay the costs of the action. Defendant made application for a parole, and, after a short recess, the parole board, organized under G. S. 1957 Supp., Ch. 20, Art. 23, consisting of the Hon. Clayton Brenner, the Hon. Earl E. O’Connor and the Hon. Raymond H. Carr, met and heard Mr. Anderson’s oral plea for a parole on behalf of defendant because of extenuating circumstances. The board denied defendant’s application, but, upon his request, granted him a stay of execution of the sentence until February 17, when commitment was ordered issued.
On February 17, defendant appeared in person, without counsel, on his unverified motion to set aside his plea of guilty and to vacate the judgment. The grounds of his motion were that he was not guilty of the crime charged; that he was not properly represented at the time of the plea and parole hearing; that he was persuaded to enter his plea of guilty for the reasons that he had been requested by the attorney general to surrender his license to practice law and had been publicly criticized by statements made in a daily newspaper circulated in the area, and that he had entered his plea of guilty to avoid further criticism; that he was led to believe, by statements made by his attorney and by the county attorney, that a parole would be granted him if he entered his plea of guilty; that he had tremendous responsibilities in life and a family dependent upon his earnings and his desire to save them from destitution and malicious publicity was a further inducement to enter his plea. A hearing on defendant’s application was had before the trial judge. Defendant presented no evidence on any fact al-‘ leged in his unverified motion, other than his own unsworn statement to the court.
Defendant did not contend he had been promised a parole, other than that it was his understanding. He stated he had not discussed the matter with the trial judge or with the parole board. The county attorney stated that he, at no time, promised the defendant a recommendation for parole if he pleaded guilty; that defendant was a lawyer in his own right, had employed counsel of his own choosing, had accepted this employment of counsel throughout the proceedings, and had made no objection until after sentence was imposed and the parole denied. The county attorney further stated that one of the last things Mr. Anderson told defendant prior to his entering a plea of guilty was, “You know now, Mr. Downs, that we cannot guarantee you a parole. And he said, ‘Of course I know that. I am a lawyer’.”
The trial court, in denying defendant’s application to set aside his plea of guilty, stated, “. . . you are a lawyer and you are acquainted with this criminal procedure, and just because the results have been disastrous is certainly no ground for the Court now to set aside a plea of guilty. The Court had set your trial for that day [February 12,1958], had given you one week’s continuance so Mr. Anderson could represent you. The Court had called a jury, because I had had no idea when you were — whether you were going to plead guilty or not guilty and had no information on it whatsoever, and it appeared that your real ground here is more hardship than anything else, rather than your plea was not as it was, and for all these reasons, no showing has been made to the Court that the plea should be set aside, and your motion to set aside the plea of guilty and to vacate the judgment is overruled.” Whereupon, defendant served his notice of appeal to this court.
At the outset, it may be stated that a defendant’s plea of guilty in a criminal case is a confession of guilt of the crime charged and of every fact alleged in the charge. Legally speaking, it is the most formal and binding confession it is possible for a defendant to make. If later the plea is set aside and there is a trial, the plea may be offered in evidence against such a defendant. (State v. Nichols, 167 Kan. 565, 207 P. 2d 469.)
It is a well-established rule in this state that a defendant who enters a plea of guilty to an offense as charged in an information has no legal right to withdraw it. It is also well established that if a defendant in a criminal case enters a plea of guilty, it is within the discretion of the trial court to allow the plea to be withdrawn and a plea of not guilty to be entered; and an order granting or denying such an application is reviewable on appeal only for abuse of discretion. (State v. Yates, 52 Kan. 566, 35 Pac. 209; State v. Garrett, 78 Kan. 882, 98 Pac. 219; State v. Nichols, supra, and cases therein cited; State v. Walker, 177 Kan. 752, 281 P. 2d 1070; Hoyt v. United States, 252 F. 2d 460 [10th Circ.]; 22 C. J. S. Criminal Law § 421b., p. 639.)
In the instant case defendant had been a lawyer in his own right for some years. He was represented by able counsel. He does not claim to have been deficient in understanding or that his attorney misled him in any particular. The trial court found that the claimed misapprehension in defendant’s own mind was not sufficient to justify the setting aside of his plea of guilty under the facts heretofore related. Defendant’s plea of guilty was voluntarily made after proper consultation with his attorney and with a full understanding of the probable consequences.
The questions raised in this case were fully considered and decided in the case of State v. Nichols, supra, and what was said there is controlling here. A careful review of the record fails to disclose any abuse of the trial court’s discretion. The judgment is affirm^
It is so ordered. | [
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|
The opinion of the court was delivered by
Fatzer, C.J.:
This is an appeal from an order granting relief from a default judgment. The pertinent facts may be briefly stated. On September 17, 1965, Helen A. Baker, plaintiff-appellee, and Girdo M. Baker, defendant-appellant, were granted a divorce. The decree provided that plaintiff be awarded custody of the two minor children, David and Nancy, that defendant pay $50 a month child support for each child during their legal minority and that he pay $100 a month alimony until plaintiff remarried or died. Child support payments for the older child, David, are not here at issue.
On January 5, 1972, defendant filed a motion to reduce alimony payments, and a hearing was set for January 28, 1972. Defendant filed a certificate of mailing, certifying the motion and notice of hearing had been mailed to plaintiff in New Mexico. The matter came on for hearing on January 28, 1972, and a default judgment was entered against plaintiff terminating alimony payments. Plaintiff through her attorney, learned of the default judgment in correspondence from defendant’s counsel on October 26, 1972. Thereafter, and on April 4, 1973, plaintiff commenced this proceeding for relief from the default judgment contending she had received no notice of the hearing.
On June 21, 1973, the district court filed its memorandum opinion finding notice had been mailed to an incorrect address and was not received by the plaintiff. The court concluded that the unusual circumstances of the case entitled the plaintiff to relief from the default judgment entered on January 28, 1972, and modified the default judgment by reinstating the obligation to make monthly alimony payments. Judgment was entered in the amount of $1,845 which included alimony and child support payments in arrears as of the default judgment, and also included child support and alimony payments due to July 1, 1973. The court ordered defendant to continue alimony payments of $100 per month after July 1, 1973. The court further ordered the defendant to pay plaintiff $200 for attorney fees.
The appellant first contends the plaintiff’s motion was barred by laches. We do not agree. As indicated, neither the plaintiff nor her counsel received notice of the default judgment until October 26, 1972. Thereafter, and on April 4, 1973, the plaintiff commenced this proceeding for relief from the default judgment. We are of the opinion the motion was filed within a reasonable time pursuant to K. S. A. 60-260 (h) (6). (Cavalliotis v. Salomon, 357 F. 2d 157 [2d Cir. 1966]; Radack v. Norwegian America Line Agency, Inc., 318 F. 2d 538 [2d Cir. 1963].)
The appellant next contends the district court erred in modifying the default judgment terminating alimony payments. Under the provisions of K. S. A. 60-260 (b) (6) the district court has broad discretionary power to relieve a party from final judgment for any reason justifying relief from the operation of the judgment. (Wichita City Teachers Credit Union v. Rider, 203 Kan. 552, 456 P. 2d 42 [1969].) The plaintiff’s motion under 60-260 (b) was addressed to the sound discretion of the district court and upon appeal is reviewable only for abuse of discretion. (Lee v. Brown, 210 Kan. 168, 499 P. 2d 1076 [1972]; Wichita City Teachers Credit Union v. Rider, supra; Neagle v. Brooks, 203 Kan. 323, 454 P. 2d 544 [1969].) Under the circumstances presented, we find no abuse of discretion.
The appellant’s contention the court erred in allowing child support payments until July 1, 1972, is without merit. At Nancy’s eighteenth birthday on August 3, 1970, die age of majority was twenty-one. In Jungjohann v. Jungjohann, 213 Kan. 329, 516 P. 2d 904, we said:
. . The statute [K. S. A. 38-101] made eighteen the age of majority from and after July 1, 1972. It affected no rights accrued before that date. It did not reach back to make a person an adult from and after his eighteenth birthday but only operated from and after the effective date of July 1, 1972.” (1. c. 336.)
the decree requiring support payments until the age of majority remained in force until July 1, 1972, when it was terminated by K. S. A. 38-101.
Appellant further contends that Nancy’s enlistment as a Navy Wave in July 1971, was tantamount to emancipation and relieved him from further obligation to make support payments. There are no Kansas decisions on the point; jurisdictions vary on whether a minor’s entry into the armed forces automatically terminates the father’s obligation to continue support payments. (See, e. g., Carson v. Carson, 120 Ind. App. 1, 89 N. E. 2d 555 [1950]; Swenson v. Swenson, 241 Mo. App. 21, 227 S. W. 2d 103 [1950]; 24 Am. Jur. 2d, Divorce & Separation, § 854.) We think the better view is that a minor’s entry into the armed services is merely a factor which may be considered for reducing or terminating support payments when a proper petition is filed. Here, the appellant initiated no action to modify or terminate child support payments. Accordingly, his •’ obligation continued until the date of legislative emancipation.
Lastly, it is contended the district court erred in allowing plaintiff’s counsel a $200 attorney fee. We find no error. K. S. A. 60-1610 (/) vests the district court with wide discretion in allowing attorney fees. (Tyler v. Tyler, 203 Kan. 565, 455 P. 2d 538 [1969]; Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465 [1967].)
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Harman, C.:
This is an appeal from summary judgment denying an employee of a subcontractor the right to maintain a tort action against the general contractor for personal injury on the basis the employee’s exclusive remedy was under the workmen’s compensation act pursuant to K. S. A. 44-503 (a). The primary issue is whether a contract existed between the general contractor and the subcontractor at the time of the plaintiff’s injury.
Plaintiff Jay C. Storts, an employee of Kendall, Inc., was severely injured on June 12, 1970, when the wall of a storm sewer excavation collapsed on him. Plaintiff was provided workmen’s compensation and medical aid by Kendall and its insurance carrier. He instituted this action to recover damages allegedly caused by the negligence of the general contractor, Martin K. Eby Construction Company.
Garvey Center, Inc. was the developer of an area in downtown Wichita known as the Kiva project, which included a high rise motel, a theater, a parking garage and three office buildings. Eby had previously been the general contractor for Garvey in constructing the garage. On January 16, 1970, after conferences between the two, Garvey notified Eby it had been selected as the general contractor to work with the architects further to develop the project and a construction contract. The agreement was to be a negotiated contract project wherein the construction company worked with the architect during design phases prior to a formal written contract between Garvey and Eby. The arrangement was to be a cost plus contract with a maximum guaranteed cost (not to exceed a certain amount).
On February 18, 1970, Eby sent a letter to Kendall inviting a proposal for mechanical work (air-conditioning, heating, ventilating and plumbing) to be done on the Kiva project. The letter stated the work would be done on a maximum guaranteed price basis with Kendall to compute the maximum cost for the complete job when the mechanical drawings were available; Kendall was requested to propose the percentage above cost for which it would do the work; upon completion of the job if the cost plus percentage figure was less than the maximum guaranteed price the lesser amount would be paid.
Kendall replied by letter February 23, 1970, in which it proposed to do the work on phase one of the project for cost plus 12% and on phase two for cost plus 15%. Kendall pointed out it had been the mechanical contractor on two of the Garvey buildings in the project.
By letter dated March 3, 1970, Eby accepted Kendall’s proposal to do the mechanical work. The letter further stated: “The award was made based on your proposal dated February 23, 1970, with one exception. The job will be awarded on a maximum guaranteed cost basis, and not a true cost plus job.”
On March 12, 1970, Kendall sent a letter to Eby which detailed how Kendall would compute its cost. The letter concluded with this: “Thank you for the opportunity of working with you on this project.”
Meanwhile, there had been oral discussions between Eby and Kendall officials as to excavation work necessary in connection with Kendall’s part of the project — Eby was to do this with its own backhoe and operator.
On April 23, 1970, Garvey authorized Eby to commence construction on May 1, 1970; however, the formal written contract between them was not signed until late in December, 1970. In the middle part of May, 1970, Kendall entered the site and commenced its work on the project.
On June 15, 1970, after Kendall received its copy of the plans and specifications, it submitted a maximum cost figure on the project of $419,016. Although excavation was not specifically mentioned this figure included the cost of excavation necessary in connection with Kendall’s portion of the work.
The formal written subcontract between Eby and Kendall, prepared by the former, was dated June 10, 1970. On that date Eby, in accord with its custom, mailed two unsigned copies of the contract to Kendall. This contract specifically provided Eby was to furnish the labor and equipment for machine excavation and backfill. The contract price, by reason of this work by Eby, was stated as $5,576.00 less than the afore-mentioned figure, or $413,440. Kendall signed the two copies of the subcontract and returned them to Eby by letter of transmittal dated June 15, 1970. The contracts were then signed by Eby.
Meanwhile plaintiff’s injury occurred on June 12, 1970. The ditch in question had been dug June 9th by Eby’s backhoe operator using Eby’s backhoe. The next day pipe was run into it and inspected and backfilling had been commenced. The ditch had not been shored. On June 12th while the workers were waiting for another load of sand for backfill plaintiff asked his foreman if he should repair a gasket that looked out of place on the pipe in the ditch. The foreman said it was okay the way it was but plaintiff could suit himself. Plaintiff entered the ditch and it collapsed upon him. Plaintiff had been in the same ditch earlier that day.
This action was instituted by the filing of plaintiff s petition alleging that at a time when no contract existed between Eby and his employer Kendall he was injured by Eby’s negligence in failing to shore the ditch and in failing to warn him of the dangerous condi tions. In the alternative he alleged that if a contract existed between the two contractors then Eby was Kendall’s subcontractor as to the excavation work.
Eby’s answer, among other things, denied the nonexistence of a contract and asserted exclusivity of the workmen’s compensation act. After the taking of depositions to which were attached the writings already referred to and entry of a pretrial conference order which included certain stipulations Eby filed a motion for summary judgment upon three grounds: The exclusivity of the remedy of workmen’s compensation, that there was no evidence of Eby’s negligence and plaintiff was guilty of contributory negligence as a matter of law. This motion was twice argued to the trial court. The court sustained the motion upon the first ground but made no ruling as to either of the negligence questions. The court found that on the date of the accident a contract existed between Garvey and Eby and a subcontract existed between Eby and Kendall; that Eby was not a subcontractor of Kendall. It ruled that the provisions of the workmen’s compensation act barred plaintiffs tort action. Plaintiff has appealed from the summary judgment.
Appellant Storts contends that prior to the accident on June 12, 1970, appellee Eby and his employer Kendall had not entered into a binding contract and did not do so until appellee formally signed the written contract on June 15, 1970. He concedes now, and did so also at trial level, that K. S. A. 44-503 (a) bars tort actions by employees of subcontractors against the prime contractor and, where this is the case, the employee’s exclusive remedy is a claim for workmen’s compensation, citing Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10. He also concedes now as he did at trial that if a contract existed between the two his primary theory for recovery herein has no merit. Appellant further contends the issue as to when appellee and Kendall entered into a binding contract was a disputed fact question, thus rendition of summary judgment was premature. The two contentions may be considered together.
First we note the parties agreed at pretrial conference that all discovery necessary for determination of the liability issue had been completed and further that appellee could file a motion for summary judgment prior to trial. The question now is whether the trial court properly determined the relationship of the parties as a matter of law.
The general rule is that in order for parties to form a binding contract there must be a meeting of the minds as to the essential terms of the contract (Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P. 2d 875). Appellant argues that prior to the date of the accident the parties were still negotiating and had not reached a meeting of the minds. We have already summarized the correspondence between the two contractors: The invitation to bid, Kendall’s response and appellee’s acceptance letter of March 3, 1970. This latter stated:
“We have decided to have your company work with us on the above project. The award was made based on your proposal dated February 23, 1970, toith one exception. The job will be awarded on a maximum guaranteed cost basis, and not a true cost plus job.
“We will expect you to work with our people, the design engineers and the architects in doing everything possible to present the best mechanical system possible for the least amount of money, still meeting design requirements.
“I would appreciate your contacting me about estimating procedure on the project.” (Our emphasis.)
Pointing out that an acceptance must be unconditional and not impose new terms, and relying on the language emphasized above, appellant says the March 3rd letter of acceptance varied the terms offered. We cannot agree. The portion upon which appellant relies merely repeated appellee’s letter of February 18, 1970, in which it was stated the job would be awarded on a maximum guaranteed cost basis. No new terms were introduced or imposed. The statement “with one exception” was inappropriate and inaccurate because no exception in fact existed nor could any have been understood. Subsequently, on March 12, 1970, Kendall sent appellee its letter detailing how it computed its costs and closing with an expression of thanks for being accepted for the job.
Appellee and Kendall agree that, at the latest, they had on March 12th entered into a contract and all the evidence so indicates. Appellee’s vice-president and project manager testified:
“. . . Invitations to bid the plumbing work were sent to three contractors on February 18, 1970. When this letter was sent, Kendall, Inc. did not receive any plans or specifications so no cost estimate could be submitted from Kendall, Inc. to Martin K. Eby Construction Co. Kendall’s proposal to do the work on a cost plus basis not to exceed a set dollar amount was accepted by letter of March 3, 1970.”
Kendall’s corporate secretary and engineer testified first as to the formal signed contract dated June 15, 1970, then as follows:
“Q. And the amounts are different, aren’t they, sir?
“A. Yes.
“Q. Do you have any information concerning why those amounts are different?
“A. Yes.
“Q. Will you tell us what it is?
“A. Well, we made the proposal and I actually think the proposal was accepted. We had the job. And to the best of my knowledge, Jim Grier [Eby’s vice-president and project manager] called and I believe he thought it was in the best interests of the job, the lowest price of the job, for these people to do the excavation.
“Eby took out of our bid the cost of machine excavation and $600.00 for sand.
“I was the author of the June 5, 1970, letter to Martin K. Eby Construction Co. I delivered the letter to Mr. Grier on June 5, 1970 and Mr. Grier indicated he accepted the dollar amount of the bid in the June 5, 1970 letter. I feel Kendall, Inc. had the contract with Martin K. Eby Construction Co. on or before March 12, 1970. However, it was impossible to come up with a figure until June 5, 1970 because Kendall, Inc. did not have a copy of the plans and specifications. The submitted bid included the cost of excavation.
“Q. Would you say that prior to March 12, 1970, that Martin K. Eby Company had accepted your bid on this job and that you had a negotiated contract?
“A. Yes, I think so.
“Q. And that all that was left to do was determine from, the plans .and specifications what the cost would be and how much material and supplies were to go into the building?
“A. Yes.
“Q. Did you plan — On June 5, 1970, did you plan to actually do the excavation work yourself?
“A. You mean did we plan on—
“Q. Your people — physically doing the work?
“A. Oh, no.
“We had the job before 5 June, 1970; then it was just a question of getting the job within the money. We had the job negotiated, and we had to come up with a figure Eby could live with. Our original proposal was made to Eby on 23 February, 1970; and Eby accepted us on the mechanical sometime before 12 March, 1970, I think.
“I felt that as of 12 March, we had the mechanical job. If Eby was going to build the Kiva, we would get a contract from Eby; all that was left to be decided was how much the contract was going to be.”
What about the matter of the change in figures due to the excavation work to be done by appellee? From the very beginning it appears clear that appellee rather than Kendall was going to do this and it was so understood between them. The reason was explained by the deposition testimony: Kendall owned no backhoes and if it were going to do excavating it would have to rent one and include that charge and an operator s wages in its cost; Kendall would be entitled to a percentage add-on for this; appellee owned about fifty backhoes or pieces of excavating equipment; it was going to be required to keep a backhoe on the job site during construction in any event for which daily rental would be charged and paid for by Garvey in the total cost; this backhoe would not be used all the time but the rental would go on the same and it could easily be spared for excavation in connection with Kendall’s mechanical work; under union agreement the backhoe operator could not be used for other types of work and if he were sent home for part of a day a full day’s wages would still have to be paid; appellee would not profit from having another backhoe and backhoe operator on the job (the job site was crowded as it was) and it was in Garvey’s interest from a cost standpoint that appellee do the excavating with the equipment already there; hence, appellee retained the excavation work and it was never contemplated otherwise between appellee and Kendall.
It seems clear the parties concluded they had entered into a binding contract with the specific maximum guaranteed cost to be submitted when the plans and specifications became available. In 1 Corbin on Contracts, § 29, it is stated:
“Two persons may fully agree upon the terms of a contract, knowing that there are other matters on which they have not agreed and on which they expect further negotiation. Such an expectation does not prevent the agreement already made from being an enforceable contract.” (pp. 94-95.)
This principle was adopted in Phillips &r Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 512 P. 2d 379, in which we also held the fact that parties contemplate the subsequent execution of a formal instrument as evidence of their agreement does not necessarily imply they have not already bound themselves to a definite and enforceable contract.
On March 12th Kendall explained how it figured its cost basis. All that remained was for Kendall to determine the materials needed when the plans and specifications were made available and compute the maximum cost. Kendall actually began work on the project in the middle of May and had done a considerable amount prior to appellant’s accident. As appellee points out this is not without significance as a factor indicating the parties were contractually bound prior to June 12th. In Corbin, supra, it is stated:
“The court will be more ready to find that the apparently incomplete agreement was in fact complete and required the payment and acceptance of a ‘reasonable’ price or a performance on ‘reasonable’ terms, in case the parties have already rendered some substantial performance or have taken other material action in reliance upon their existing expressions of agreement. The fact that they have so acted is itself a circumstance bearing upon the question of completeness of their agreement.” (p. 93.)
Following receipt of the plans and specifications Kendall submitted its maximum cost on June 5, 1970. Although this figure included the cost of excavation the parties had understood from the beginning that upon appellee doing the excavating that cost would be deducted from Kendall’s submitted maximum cost. Upon the undisputed facts before the trial court it properly concluded as a matter of law that all essentials had been agreed upon and appellee and Kendall intended to and did in fact enter into a binding contract prior to June 12, 1970. Rendition of summary judgment was proper.
We turn now to appellant’s alternate theory of recovery — that if it be held a contract existed between appellee and Kendall, that agreement was such that Kendall became the general or prime contractor while appellee became the subcontractor, and appellant as an employee of the general contractor can maintain a tort action against appellee as the subcontractor. He says in his brief:
“K. S. A. 44-503 (a) precludes, in effect, common law actions ‘up the ladder of employment’, i. e., an employee of a subcontractor cannot maintain a common law damage action against his employer’s employer. However, the statute does not bar an action by an employee of a prime contractor, or ‘principal’ as he is referred to in K. S. A. 44-503 (a), against his employer’s subcontractor. [See, e. g., Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219 (1950) wherein the Court states an injured employee may maintain a common law action for damages against .a subcontractor of the workman’s employer.] The effect is that although a workman cannot ‘sue up the employment ladder’ he can sue down that ladder.”
Appellant’s argument further is that the purpose of 44-503 (a) is to insure workmen’s compensation to the injured workman and where workmen’s compensation has in fact been paid, as here, the statute is satisfied and its operation should not be extended beyond that purpose to abrogate his right to a common law action. He would have appellee wearing two hats — one as general contractor and the other as sub-subcontractor on the same contract. The facts here do not admit such an alternative. There was only one contract. Much of that which has already been said is applicable. The parties simply never contemplated or intended a sub-subcontract. Kendall was never awarded the excavation work and it could not subcontract out something appellee had retained for itself.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a workmen’s compensation case. By written claim served on the respondent-employer on the 21st day of November, 1957, the claimant alleged that he suffered a coronary thrombosis on the 11th day of February, 1957, while in the employ of the respondent. After hearing the case, the commissioner on the 18th day of July, 1958, entered an award in favor of the claimant and against the respondent, a self-insurer, for twenty-five weeks of temporary total disability, followed by 60% permanent partial general disability not to exceed the remaining three hundred ninety weeks, all payable at the rate of $32 per week, subject to review and modification as provided by law.
On appeal to the district court judgment was entered for the claimant as follows: The court “is of the opinion that there was sufficient evidence introduced in the hearing before the Commissioner to support his findings.” From the foregoing order the respondent has duly perfected an appeal to this court.
The questions presented for review are stated by the appellant in its brief as follows:
“I- Was written claim for compensation filed by claimant with his employer within the time specified by the Kansas Workmen’s Compensation Act?
“II. Is the order in this case supported by substantial, competent evidence proving that claimant met with an accident arising out of and in the course of his employment?
"III. Did the District Court properly fulfill its function by looking at the record solely to see if there was sufficient evidence introduced in the hearing before the Commissioner to support his findings?”
The third question may be summarily answered. The trial court in October, 1958, had before it the oral arguments of counsel, briefs and transcripts. It took the matter under advisement and finally in March, 1959, five months later, rendered its judgment. It could hardly be suggested the trial court made a quick decision. The point presented was before this court in Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P. 2d 41. The rule was acknowledged that on appeal in a workmen’s compensation proceeding, the district court must try the case de novo on the record and make its own findings. In the Davis case the judgment of the trial court was worded in language similar to that above, and it was said the court’s statement in its letter of judgment to counsel must be treated in effect as a statement that after independent determination it “adopted” the commissioner’s findings and award. Thus viewed, it cannot be said here the court erred in entering judgment for the claimant on this point.
The facts, supported by the evidence, are that on February 11, 1957, the claimant, Elmer H. Wilson, while unloading furniture, felt a sharp pain go through his chest. At the time he experienced the sharp pain he was lifting a refrigerator. He was working for the respondent, The Santa Fe Trail Transportation Company, at the time of the attack as a pick-up truck operator. He continued with his work a few minutes there and then told Mr. Morfitt, a fellow employee who was also a pick-up truck operator for the respondent, he did not feel well and that he was going into town. He then went to Sears and Roebuck to pick up some freight, suffering with pain, and lifted sacks weighing approximately 75 to 125 pounds, and the pain became worse. Thereupon he sat in his truck for approximately an hour with no relief. He next went to Haynes Feed Store across the alley from Sears and Roebuck and telephoned his wife to bring him some anacin in an effort to get relief. While in the feed store he talked to Mr. John Fuller, a feed salesman, and told him he did not feel well and that he had severe pains. Mr. Fuller, when asked the purpose of the claimant’s call on the 11th day of February, 1957, testified:
“Well, he just come iu there and said he was sicker than hell, and said he wanted to call his wife; that’s just about the way he worded it.”
He further testified the claimant used the telephone and he later saw the claimant with Mrs. Wilson, his wife, in the alley.
The claimant testified his wife came with some anaoin. She asked him to leave his truck and go to the doctor but he told her he would “try to suffer it out.” The claimant then made another call and returned to the respondent’s dock about 4:00 p. m., where he spoke with Mr. Scheck and told him he had a “hurting in my shoulders.” He sat around on the dock and did a little work there. At 5:30 that evening his father-in-law came to take him home.
His wife then called Dr. Charles R. Hopper who wanted to come by and give the claimant a shot, but the claimant declined thinking that he might get relief during the night. The claimant then propped himself up on the divan without taking off his clothes where he remained all night. He testified that he did not get any sleep that night and the pain was gradually getting worse. A little after 12:00 noon on the following day his wife took him to Dr. Hopper’s office. After examination the doctor informed him he had suffered a heart attack twelve to twenty-four hours previous. The claimant was thereupon hospitalized under oxygen. He was released from the hospital on the 14th day of March and sent home by ambulance for bed rest for three weeks, during which time Dr. Hopper continued to visit him. Later he entered the Veterans Hospital in Topeka about May 16th and was there for nine days.
When the claimant returned to Emporia he continued to make visits to the hospital to see Dr. Hopper, his private physician. In the month of June, 1957, he saw Dr. Funston J. Eckdall, the respondent’s contract doctor in Emporia, at the hospital in an attempt to get a release to return to work. Dr. Eckdall informed the claimant if he wanted to see his family raised he could not go back to work.
Dr. Hopper testified he consulted with Dr. Eckdall and when asked why he happened to consult with Dr. Eckdall he answered:
“A. 'I think he came to me and asked me if he could have some of mv original electrocardiograph tracings, and what the original findings were, and what I thought of his physical condition.
“Q. And do you know why he was interested in this information?
“A. Well, I think he was going to have to examine him, as I understand it, and pass on him whether he was able to return to work or not.
“Q. For the company; is that correct?
“A. For the company.
“Q. You state you continued to have Mr. Wilson under your treatment?
“A. Yes.”
Dr. Eckdall testified he saw the claimant at the hospital in June, 1957, and his reason for being asked to consult with Dr. Hopper was that he represented the respondent and was supposed to recommend whether the claimant could return to work. His conclusion at that time was that the claimant definitely had a coronary accident and he did not recommend that the claimant return to work. Dr. Eckdall said he gave the claimant an examination on the 10th day of August, 1957, when the claimant came to his office wanting to return to work:
“. . . which was a perfectly natural feeling, and I stated that he had been out — this is a little conflicting, but he had been out the day before pitching hay, which would be a rather strenuous task to anybody who had any sort of a coronary injury; and on 8/10/57, he had an inversion of his °T waves in Lead 1, which is usually considered as good evidence of a coronary accident, and it has never become upright since that date. I believe that I was lulled, you might say, or kidded, in a sense, to give him release; I talked it over with Hopper, and he more or less agreed on the date of August the 12th; . . .”
As a result of claimant’s efforts Dr. Hopper gave him a release on the 10th day of August, 1957, to return to work stating that as a result of examination on August 3, 1957, “all findings were negative for disabling heart disease. Released to return to work.” On the 12th day of August, 1957, Dr. Eckdall gave the claimant a release noting on the form that claimant “Had coronary Feb. 1957 Ecg and heart examination normal now.” Dr. Eckdall’s certificate on the medical examination form of The Santa Fe Trail Transportation Company releasing the claimant reads.
“This is to certify that I have this day examined Elmer H. Wilson in accordance with S191.2, and the physical examination procedure prescribed by the Motor Carrier Safety Regulations, Revision of 1952 of the Interstate Commerce Commission, and that I find him . . . Qualified under said rules. I have kept on file in my office a completed examination form for this person.
8-12-57 Emporia, Ks. F. J. Eckdall M. D.
Date (Place) (Signature of Examining Doctor)
Address of Doctor Emporia, Ks.”
Following the certificate on the reverse side of the form is a note reading:
“I have seen previous electrocardiograms ran on this man at the time of his coronary. Ecg at this time is normal.
F. J. Eckdall M. D.”
It is noted August 12th is the 181st day after February 11,1957, the date of the accident. (See G. S. 1957 Supp., 44-520a.)
As a result of these releases the claimant returned to work for the respondent on the 12th day of August, 1957, and after performing three hours of duty was sent home by Agent Haywood until he had been given a more complete physical examination.
Dr. Eckdall testified that he saw the claimant on August 12th because there was some dispute regarding the return of the claimant to work. Claimant said it was Mr. Haywood, agent for the respondent, who sent him to Dr. Eckdall on the 12th day of August.
Prior to giving the claimant a release Dr. Eckdall testified that he “talked with the office down there, and Hopper and I had both agreed that he was unfit for his old occupation, or present occupation, that he could be employed in something of a lesser capacity.” He further testified:
“Q. Doctor, if you had been informed that his regular employment necessitated him lifting heavy cargo and doing heavy manual labor, would you have given him a release to do that type of work?
“A. No. You see, at times it all depends on the qualifications, sometimes, of an individual; if a man has proper qualifications and education, sometimes they can be transferred to jobs of lesser physical effort, and it has been done at times.”
Dr. Eckdall’s testimony at the hearing before the commissioner was confined to objective considerations and he concluded it was inadvisable for the claimant to return to any form of manual labor. Admitting that he had last seen the claimant on August 12th, he testified:
“Q. — but at the time you last saw him, would you say you felt Mr. Wilson’s condition was one which would probably remain a permanent one?
“A. From looking at Dr. Hopper’s EKG’s, I would say that he would probably never return to normal EKG. I have seen all of Dr. Hopper’s EKG’s.”
Dr. Hopper’s testimony at the hearing before the commissioner was both subjective and objective. It is apparent Dr. Hopper was fully aware of the accident and the history as heretofore related, having been so advised by the claimant and his wife. As a result of the examination on February 12, 1957, in his office Dr. Hopper testified:
“. . . it was my impression he suffered a heart attack, a coronary occlusion. I had an electrocardiogram tracing made at my office, and it showed evidence of acute myocardial infarction, or coronary occlusion, and he was referred to Newman Hospital.
“Q. This myocardial infarction you speak of, was it your opinion at that time or is it now that as of that time it was a recent infarction?
“A. Yes, this was an acute thing, probably of a 24-or-48-hour duration . . .”
In an attempt by counsel to establish a causal connection as to whether claimant’s accident arose out of his employment, Dr. Hopper testified:
“Q. Did he say what he was doing at the time he had the pain? Did he say that to you?
“A. I think he was unloading furniture or carrying furniture. However, I didn’t make any record of that because that would be something that I don’t know about. He simply stated that while at work he had this pain and then it went away again after he stopped working for awhile. In other words, in the histoiy I was struck by the fact that the pain was pain on effort.” (Emphasis added.)
The last examination of the claimant made by Dr. Hopper was on January 16, 1958, and he gives the results of that examination and his conclusions as follows:
“Q. Would you tell the Commissioner the results of that examination?
“A. Mr. Wilson has at this time made, I would say, a fairly good recovery from the initial heart attack that he suffered. He has a regular pulse, he has what we would call a normal blood pressure and also a normal heart rate. He has a very slight heart murmur, which is an abnormal sound heard over the heart. The electrocardiograph still shows some abnormality which goes along with a decreased blood supply through the coronary blood vessels or else scarring from old damage. You can’t tell the difference from looking at it unless you go through all of them, and I do have a lot of them over a year’s time. He also was having some hemoptysis, coughing up bright red blood; and 'I took an X ray of him at that time, also, and the X ray showed nothing at all except possibly a question of some increased pulmonary congestion, as if there might be some dilatation of the blood vessels. He was advised to stop smoking. He was doing some smoking at that time. This hemoptysis, or spitting up of blood, I found no cause for other than the fact that he might have some bronchitis from either possible upper respiratory infection — it was possibly aggravated by smoking. He didn’t have any fever at that time. Otherwise I don’t have any definite way of knowing where this came from. The X ray was clear.
“Q. As a result of the examination did you form or have you formed some conclusions as to what restrictions should be put on Mr. Wilson’s activities?
“A. The restrictions on Mr. Wilson’s activities are — he falls into a cardiac category recognized by the American Heart Association of a person who has had a coronary occlusion, or myocardial infarction. They have not shown complete recovery, by the fact that the electrocardiograph still is abnormal, they continue to have some kind of angina pain on effort. However, he does not have a severe tachycardia on mild exertion; and I would never want to be the one who decided to test him to the utmost to find out how far he could go. Mild exertion is all I have ever told him he could do, and I have forbidden him to run up and down steps or carry heavy weights. I have told him he must take care of himself and get regular rest, and light work is all that he could ever expect to do again.
“Q. Would you say Mr. Wilson could do the work he was doing at the time of his accident?
“A. No.”
Upon the record presented it is apparent the written releases given the claimant by Dr. Hopper and Dr. Eckdall authorizing the claimant’s return to work were absolute and without reservation or qualification. Further development of the facts, as the opinion progresses, will illustrate the economic havoc these releases forced upon the respondent because they did not fully disclose the claimant’s true physical condition and his limited capacity for work.
The respondent is engaged in interstate commerce and the claimant’s employment with the respondent required him to drive a vehicle, a pick-up truck, in interstate commerce. Under the safety requirements of the Interstate Commerce Commission every driver in interstate commerce must be examined periodically. If such driver is off for illness, he must be recertified as safe to drive.
After the claimant was discharged on the 12th day of August, 1957, “until further examination,” the respondent through Agent Haywood referred the claimant to Dr. Eckdall, but did nothing further to reinstate the claimant or inform him of his status for more than two months. He was referred to Dr. Emery R. Calovich, a heart specialist for the respondent in Kansas City, Missouri, for examination on the 23rd day of October, 1957. The sole purpose of this examination was to determine the physical fitness of the claimant to drive a truck in interstate commerce.
After Dr. Calovich interviewed the claimant and examined him physically, he gave his impression as follows:
“. . . I thought this man had hypertension, that he had obesity, and that this hypertension was connected somewhat with his heart and should be termed hypertensive cardiovascular disease. I also concluded that, I believed this man had a myocardial infarction that was probably old and healed. That was the real basic conclusions . . .
“. . . it was my conclusion that this man was a hazard to himself and to his employer, as well as to the public in general; that he be not permitted to operate a commercial carrier; and that he be not permitted to lift cargo and participate in any strenuous activity because of all the above that I have given you.”
Dr. Calovich again examined the claimant on the 23rd day of January, 1958, when he stated the purpose of his examination was to determine whether or not the injury to the claimant’s heart was directly associated or connected with his occupation and to de termine whether there was disability resulting from his heart injury or myocardial infarction, and if there was disability, to what extent such a disability existed. His conclusions as a result of that examination were:
“. . . this man had hypertensive cardiovascular disease; that he had an old, healed anteroseptal, midclavicular infarction; that he was obese; it is also my impression that there could be an element of cor pulmonale, which refers to strain on the lungs, which I had noted previously in the tracings. These were the conclusions, as far as the disease processes involved with this man on the second visit.”
His conclusions as to whether or not claimant was suffering from any permanent disability were:
“. . . this man was suffering no sequalae as a result of his myocardial infarction. I also concluded that I thought he had a partial, permanent disability as a result of his myocardial infarction. I also, concluded, after much thought, that this disability should be placed at a figure, and that figure was placed at 20 per cent.”
The extent of the claimant’s disability is not an issue on this appeal and no further reference will be made to it.
The deposition testimony of Dr. Calovich was rather long and extended. The respondent sought to establish that claimant’s accident possibly occurred prior to the date the claimant, said it did. As to whether claimant’s accident arose out of his employment he testified:
“Q. Doctor, was there anything in the history of this man that would permit you to determine whether or not his work would become an etiological factor in this myocardial infarction?
“A. It was my impression that Mr. Wilson’s occupation was not too etiological a factor in producing the myocardial infarction.”
The opinion of Dr. Calovich on this point is: That it is possible, not probable, that claimant’s accident arose out of his employment.
On the basis of the foregoing evidence standing alone, assuming the claim for workmen’s compensation was filed in time under the applicable sections of the workmen’s compensation act, the application of familiar rules of law to the facts warrant approval of the findings of the commissioner, adopted by the trial court, that claimant met with an accidental injury on February 11, 1957, when he had a coronary occlusion, which arose out of and in the course of his employment.
On appellate review of workmen’s compensation cases our inquiry is limited to questions of law only. (G. S. 1957 Supp., 44-556.) This means the court’s duty is to determine whether the findings of the district court are supported by substantial, competent evidence. If, when considered in the light most favorable to the prevailing party below, the record contains any evidence to support the district court’s judgment, that judgment must be affirmed even though the record discloses evidence which might warrant the district court making a finding to the contrary. (Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P. 2d 41; Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372; and cases cited in these authorities.)
The court does not review the record to ascertain whether it contains evidence to support a contrary finding, but only whether there is substantial, competent testimony to support findings made by the district court. (Angleton v. Foster Wheeler Construction Co., 177 Kan. 134, 276 P. 2d 325; and cases cited therein.)
It has been held that coronary occlusion, coronary thrombosis, cerebral hemorrhage, or heart failure-acute, which resulted in death or disability to a workman, was personal injury by accident when it arose out of and was received in the course of employment. (Alpers v. George-Nielsen Motor Co., 182 Kan. 790, 324 P. 2d 177; and cases cited therein.) Other heart cases to which reference is made are Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103; and Peterson v. Safeway Stores, 158 Kan. 271, 146 P. 2d 657.
In Kafka v. Edwards, 182 Kan. 568, 322 P. 2d 785, a heart case, the trial court found the injury did not arise out of and in the course of employment, and this court affirmed. A similar finding was affirmed in Grow v. Musgrove Petroleum Corp., 184 Kan. 800, 339 P. 2d 75.
The workmen’s compensation act prescribes no standard of health for a workman, and if his physical structure gives way under the stress of his usual labor his death or injury is an accident which arises out of his employment. The general rule appears to be that the injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed, and the resulting injury. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Pinkston v. Rice Motor Co., supra; and Alpers v. George-Nielsen Motor Co., supra.)
The elements of the term “accident” as well as other provisions of the Kansas workmen’s compensation'act, must not be construed in a strict and technical sense but liberally in a manner designed to effectuate the true intent and purpose of the act. (Kauffman v. Co-operative Refinery Assn., 170 Kan. 325, 225 P. 2d 129.)
Was written claim for compensation filed by claimant with his employer within the time specified by the Kansas workmen’s compensation act?
The commissioner found that notice was received of the accidental injury by the employer, and since no accident report was filed by the employer within seven days following February 11, 1957, the statutory limitation for the filing of a claim within one hundred eighty days was lengthened to one year.
It is conceded that no accident report was filed by the respondent with the workmen’s compensation commissioner until after the claimant filed his claim for workmen’s compensation on the 21st day of November, 1957. The respondent contends it did not know the claimant suffered an accident arising out of and in the course of his employment. The claimant left his work at the usual time of 5:30 p. m., on February 11,1957.
G. S. 1957 Supp., 44-557, provides in part:
“It is hereby made the duty of every employer ... to make or cause to be made a report to the commissioner of any accident, or claimed -or alleged accident, to any employee which occurs in the course of his employment and of which the employer or his foreman has knowledge, within seven (7) days, after the receipt of such knowledge: . . . Provided fmther, That no limitation of time in this act provided shall begin to run unless a report of the accident as hereinbefore provided has been filed at the office of the Kansas workmen’s compensation commissioner if the injured workman shall have given his notice of injury as provided by section 44-520 of the General Statutes of 1949: Provided, however, That any proceeding for compensation for any such injury or death, where report of accident has not been filed, must be commenced before the commissioner within one year from the date of the accident, suspension of payment of compensation, or death of such employee referred to in section 5[*] hereof.” (Emphasis added.)
G. S. 1949,44-520, reads:
“Proceedings for compensation under this act shall not be maintainable unless notice of the accident, stating the time and place and particulars thereof, and the name and address of the person injured, shall have been given to the employer within ten (10) days after the accident: Provided, That actual knowledge of the accident by the employer or his duly authorized agent shall render the giving of such notice unnecessary: Provided further, That want of notice or any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.” (Emphasis added.)
It is definitely stated in 44-557, supra, that if the employer or his foreman has knowledge of an accident occurring to any employee in the course of his employment, notice must be given as provided in the statute. The emphasized clause quoted in 44-520, supra, excuses an injured workman from giving notice where the employer has actual knowledge of the accident. We interpret the last clause of the first proviso, emphasized in 44-557, as one requiring the employee to give notice of injury in compliance with the provisions of 44-520, unless he is excused from the giving of such notice as provided therein. In other words, if the employer has actual knowledge of the accident, the injured workman is excused from giving the notice required, and failure of the employer to file a report of accident with the commissioner of an accident to an employee, which occurs in the course of his employment, extends the limitation of time within which to commence a proceeding under the workmen’s compensation act to one year as set forth in the second proviso of 44-557.
A resort to the record discloses that Mrs. Wilson, the claimant’s wife, after Dr. Hopper had diagnosed the claimant’s accident as a coronary occlusion, somewhere around 4:00 or 4:30 in the afternoon of February 12, 1957, went in person to notify Mr. Haywood, the respondent’s agent, that her husband had suffered a heart attack. She testified, after the claimant was in the hospital, that Mr. Haywood called about every day to check on his condition “and we talked.”
Mr. Haywood admitted Mrs. Wilson told him the claimant had a heart attack, and when asked if she told him where the accident happened, said he did not recall whether she did or not. He was asked:
“Q. But you wouldn’t say she didn’t; is that right?
“A. I don’t know if she — -I don’t recall if she told me where he had the heart attack.
“Q. Mr. Haywood, while Mr. Wilson was in the hospital approximately how many times would you say you conversed with Mrs. Wilson?
“A. Well, we checked almost every day to see how he was getting along.
“Q. Then you had knowledge during this entire period that he had suffered this heart attack; is that right?
“A. We were of the opinion, yes.”
The foregoing and other supporting evidence in the record is sufficient to permit a finding that notice was given or that the respondent had actual knowledge of the accident, and the failure of the respondent to file its report with the commissioner within seven days after the receipt of such knowledge extended the time within which claimant was permitted to commence a proceeding for compensation before the commissioner to one year.
The two proviso clauses in 44-557 were added by the 1957 legislature and became effective July 1, 1957. It is argued the effect of the ruling of the commissioner was to apply the proviso clauses retroactively to February 11,1957.
This point was presented in Pinkston v. Rice Motor Co., supra, which followed a previous decision, Dobson v. Wilson & Co., Inc., 152 Kan. 820, 107 P. 2d 676. The section of the statute under consideration in the Pinkston case was G. S. 1949, 44-520a, which provided that written claim for compensation must be served upon the employer within eight months after the death of the injured employee if death results from the injury within three years after the date of the accident. This provision of the statute was in effect at the time of the accident, February 18, 1955, but the statute was amended by Laws of 1955, Chapter 250, Section 13 (G. S. 1955 Supp., 44-520a), effective May 1, 1955, extending the period to one year. Thereafter and on November 15, 1955, more than eight months after the date of the accident but within one year therefrom, a written claim for compensation was served. The court held the provisions as to the time of service was not a substantive part of the contractual relation, but was procedural and remedial in nature, and whether the claim was served in time was to be determined under the statute as amended.
Respondent argues, however, that in those cases the court was dealing with a procedural statute, but the amendments to Section 44-557 are changes in the substantive law, and are punitive, calling our attention to the fact this is a criminal statute. This point is not well taken. While the section of the statute in question does have a punitive provision for its enforcement, the change made by the amendment is a procedural change and is remedial. Prior to the amendment of 44-557, claimant had one hundred eighty days within which to commence his proceeding before the workmens compensation commissioner. (G. S. 1957 Supp., 44-520a.) This period of time did not expire until after 44-557 was amended, effective July 1, 1957. Whether the proceeding was commenced in time must be determined under this section of the statute as amended.
We therefore conclude the claimant’s written claim for compensation was filed in time.
Do ostensibly inconsistent positions taken by the claimant, prior to the filing of his claim for compensation under the workmen’s compensation act, alter the right of the claimant to recover workmen’s compensation from the respondent?
There has been only one alleged accident — that of February 11, 1957. Based on this one incident, and prior to any claim for compensation, the respondent argues, the claimant recovered from two insurance companies on the grounds that his disability did not arise out of and in the course of his employment; he has been awarded a permanent pension by the Veterans Administration on the grounds of being “permanently and totally disabled”; he has collected back wages from his employer, the respondent, for work not performed on the grounds that he was not disabled and was fit to drive in interstate commerce but was wrongfully refused the right to do so. Now, by this proceeding before the workmen’s compensation commissioner, the claimant has been awarded compensation on the grounds he suffered a disability that did arise out of and in the course qf his employment and that he has been disabled since February 11, 1957.
Consideration of these claims is interwoven with the first two questions presented by the respondent.
By express mandate the commissioner in a workmen’s compensation proceeding is not bound by technical rules of procedure (G. S. 1949, 44-523), and the commissioner is directed to hear and determine the matters presented, and to make findings or an award such as he shall determine fair and equitable under the provisions of the act (G. S. 1949, 44-522). The workmen’s compensation act establishes a procedure of its own which provides a remedy that is substantial, complete and exclusive in compensation cases. (Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456; and cases cited therein.)
On the basis of the foregoing mandate of the legislature and interpretation of the act, we shall consider the various claims in order, viewed as evidence before the commissioner, to determine whether as a matter of law there is any reason to deny compensation.
On February 17, 1957, a claim was filed with the Travelers Insurance Company. This is a group policy administered by the respondent for which deductions are made from the wages of the employee who participates individually on a voluntary basis. The conditions for payment under this policy are that the disability does not arise out of and’ in the course of employment. Payment was made on the basis of Dr. Hopper’s written statement on the application form that claimant’s disability of February 11, 1957, did not arise out of his employment.
The evidence is that claimant was in the hospital at this time (six days after the accident) and his wife was informed by the respondent’s agent, Haywood, of the existence of this policy of insurance. Mr. Haywood personally gave claimant’s wife the forms upon which to present this claim. Under the policy claimant was paid a total of $325. While claimant’s signature appears on the application form it was filled out in the handwriting of his wife, and by Dr. Hopper. The claimant does not remember signing it.
It can hardly be said the respondent’s participation regarding this claim went as far as did the conduct of the employer in Johnson v. Shelly Oil Co., 180 Kan. 275, 303 P. 2d 172, nevertheless the evidence would authorize a finding that respondent’s participation and assistance was sufficient to preclude it from taking advantage of claimant’s position. The most favorable circumstance for the respondent resulting from this claim was the statement made by Dr. Hopper that the disability due to injury or illness of the claimant did not arise out of his employment. This was a conclusion inconsistent with the facts concerning which Dr. Hopper testified at the hearing. It was entitled to such weight as the trier of the facts saw fit to give it.
On March 1, 1957, the claimant filed for and received insurance through the Teamster’s Union. This insurance is payable only if the claim does not come under a workmen’s compensation act and must be so certified by the local union agent. Before payment was made under this policy it was necessary that the respondent complete a portion of the form relative to the application for insurance. Mr. Haywood testified he completed section three of the form which was sent to him by the union representative. The only place on the form in which inquiry is made concerning whether the accident is covered by the workmen’s compensation act is in section three. The question is: “Has claimant filed a claim for benefits under Workmen’s Compensation?” Presumably Mr. Haywood answered this in the negative. The form was returned by Mr. Haywood to the local union representative who then certified over his signature at the bottom of the form that the claim did not come under the workmen’s compensation act.
Here again it may be said the evidence was entitled to such weight as the trier of the facts saw fit to give it.
Effective April 23,1957, claimant was awarded a monthly pension by the Veterans Administration on the basis of disabilities “which are considered to be permanently and totally disabling.”
The claimant was asked whether there was a hearing for the benefit determined by the Veterans Administration. He answered:
“No, no other than tire veteran man here in Emporia. The main reason for that was, he come to my house and seen what kind of condition we was in, and I had two girls, and he did that to help me along.”
Upon the evidence appearing in the record, it does not appear that claimant’s position with respect to this disability pension is inconsistent with his claim for workmen’s compensation.
After the claimant was sent home by Mr. Haywood on the 12th day of August, 1957, he waited around for more than two months and heard nothing from the respondent. He then went to his Teamster’s representative, Mr. LaRue Moore, to see what could be done relative to getting back on the job. The union representative, armed with the two releases given the claimant by Dr. Hopper and Dr. Eckdall, filed a claim for back pay commencing August 12, 1957. This claim was based on allegations that claimant was fully recovered from all disabilities and also that he was physically fit and able to drive a truck in interstate commerce. As a result of a hearing held on October 17, 1957, before the joint labor board in Kansas City, Missouri, the respondent was ordered to and did pay back wages to the claimant in the amount of $823.68 for the period of August 12, 1957, to October 10, 1957, and reinstated the claimant in his employment.
Pursuant to this reinstatement order of the labor board, claimant worked for fourteen days subsequent to October 17, 1957. He was then referred to and examined by Dr. Calovich on October 23,1957, and found unfit to drive a vehicle in interstate commerce. Thereupon the respondent gave him written notice dated November 7, 1957, of removal from service-as not being physically qualified.
On the surface it would seem rather harsh to permit a claimant to recover workmen’s compensation from his employer after prosecuting, through his union representative, a claim for back pay as above stated. However, the facts originally stated were extended in great detail to show the conduct of the respondent which assisted in bringing about conditions which forced this claim. Dr. Eckdall, the contract doctor for the respondent, gave claimant an absolute release as heretofore reported on the 181st day after the accident. In this release Dr. Eckdall did not indicate there was any limitation upon claimant’s capacity to work. It could fairly be said the respondent brought this dilemma upon itself by the conduct of its own doctor. Furthermore, after the claimant was returned to work on the 12th day of August, the respondent did not immediately refer him to Dr. Calovich for examination but delayed matters until after the claimant sat around for approximately two months, when he went in desperation to his union representative. Only after the respondent was ordered by the labor board to pay back wages did the respondent refer the claimant to Dr. Calovich for examination. The trier of the facts was entitled to weigh this evidence.
On the 7th day of November, 1957, claim was again filed for reinstatement and back pay through claimant’s Teamster Agent, Mr. LaRue Moore, on the grounds that claimant was fit and able to work. The hearing was set for December 13, 1957, before the labor board but was withdrawn on that date due to the pendency of this workmen’s compensation claim, which was filed with the respondent on November 21, 1957, on the grounds that claimant was totally disabled from an accident suffered on February 11,1957.
In view of the foregoing and the withdrawal of the second claim for reinstatement, we think this claim merits no further attention.
It cannot escape notice that claimant did file inconsistent claims. Yet he was an employee with only an eighth grade education who did not know there even existed workmen’s compensation for injury arising out of and in the course of his employment. The record clearly reflects that claimant had no fraudulent intent or scheme in mind by the various claims. On the contrary, he was determined to get back on the job at which he earned slightly more than $100 per week, so he could support his wife and minor children. It was not until the claimant finally went into the office of Wade A. Myers, an attorney at Emporia, that he was advised of workmen’s compensation. This was on the 19th day of November, 1957. After an independent investigation and consultation with the doctors, his attorney found it necessary to convince the claimant that he was permanently disabled and that he should proceed for workmen’s compensation. It could hardly be urged by an employer that an employee was qualified to determine his own physical fitness to drive in interstate commerce.
This case illustrates the need for requiring the employer to serve notice of an accident with the commissioner under the workmen’s compensation act pursuant to 44-557, supra. When a report is filed by the employer, the commissioner sends a post card to the employee notifying him that he may have certain rights under the Kansas workmen’s compensation laws. Under normal circumstances the, employee would then check to determine whether he had rights under the workmen’s compensation act. The notice given by the employer is not a document which binds the employer to pay compensation. These reports cannot be considered as evidence before the commissioner or any court.
Upon all the facts and circumstances presented by the record, we cannot say the trier of the facts erred in finding that inconsistent claims made by the claimant were neutralized by activity or participation on the part of the respondent relative to such inconsistent claims. The evidence, as a matter of law, supports the findings and the award.
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The opinion of the court was delivered by
Robb, J.:
To prevent any misunderstanding in regard to the jurisdiction of the state corporation commission in attributing acreages to a particular gas well for the purpose of determining the allowable of such gas well for production of gas therefrom, the syllabus in Day v. State Corporation Commission, 185 Kan. 165, 341 P. 2d 1028, is modified in the 4th and 5th lines thereof by substitution of the word attributing for the words “unitization and pooling” so the syllabus in pertinent part reads:
“In a proceeding originating before the state corporation commission by reason of certain producers filing an application seeking an exception to paragraph ‘g’ of the basic proration order of the Hugoton gas field for the attributing of non-contiguous and non-adjoining acreages. . . .”
The corresponding portions of the opinion are also modified so that in line 13, page 166, as well as in line 14, page 167, where the words “unitization and pooling” appear, the word attributing is substituted therefor.
The final paragraph on page 167 is stricken and the following is incorporated into the opinion in lieu thereof:
The trial court found: “Notice was given as provided by 55-705b, 55-706 and 55-605, G. S. 1949, but the record shows that neither of plaintiffs had actual notice of the hearing.” (Our emphasis.)
The record fully supports this finding in that the notice was published but a copy thereof was not mailed to each person interested in the hearing according to the latter part of G. S. 1949, 55-605, and as we construe that part of the statute, it requires the applicants (here intervenors) to make known to the commission the names and addresses of the parties who are interested in' and affected by the hearing on the application and the results thereof.
Since the record fails to affirmatively show any necessary elements of acquiescence or estoppel on the part of plaintiffs, land owners, and in view of what was said in the original opinion in re1 gard to mailing notice under G. S. 1949, 55-605, supplemented by Mullane v. Central Hanover Tr. Co., 339 U. S. 306, Syl. ¶ 3, 70 S. Ct. 652, 94 L. ed 865, the petition for rehearing is denied.
Price, J., dissents, being of the opinion that a rehearing should be granted. | [
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The opinion of the court was delivered by
Robb, J.:
The John Hancock Mutual Life Insurance Company, hereafter referred to as the insurance company, on September 3, 1957, filed the original suit herein to recover judgment on its note and foreclose its first mortgage lien on real property in Edwards county belonging to George Hetzel and Grace Marie Hetzel, hereafter referred to as mortgagors, who had executed a note and mortgage as security therefor. Another defendant and the appellant here, the United States of America, hereafter referred to as the government, is also holder of notes and a second mortgage, as security for one of the notes, executed by the same mortgagors on the same real property. In this appeal we are not concerned with other defendants of record or their claims. No dispute exists as to the priority of the mortgages nor as to the pleadings and we shall therefore refer only to the pertinent parts thereof as we proceed with our discussion of the points at issue.
On December 4, 1957, the trial court entered judgment on the respective notes and foreclosed the -first mortgage in favor of the insurance company and the second mortgage in favor of the government. The decree further provided that if the mortgagors failed to pay the judgments within ten days, the sheriff of Edwards county was directed to advertise and sell the real property according to law subject to redemption for a period of eighteen months after the date of sale. The proceeds were to be applied on costs, taxes, on the first lien of the insurance company and then on the government’s second lien.
The mortgagors failed to pay within ten days and on January 22, 1958, the sheriff’s sale was held. The only bidder was the insurance company which bid the property in for the full amount of its judgment, interest, taxes and costs. The government did not bid at the sheriff’s sale. The insurance company was the only party who appeared to move for the court’s confirmation order of the sheriff’s sale. On February 5, 1958, the trial court confirmed the sale and directed the sheriff to issue to the purchaser a certificate of sale for the real property, fixing the period of redemption at eighteen months from the date of sale. If redemption were not made within time, the sheriff was directed 'to make, execute and deliver to the holder of said certificate his sheriff’s deed to the real property and put the holder thereof in possession.
On June 5, 1958, the government requested the district court clerk to issue a certificate of redemption to it pursuant to its tender under G. S. 1949, 60-3451. The amount thereof was to be measured by the lex rei sitae (normal state-law rule) to effectuate its right to redeem the property under 28 U. S. C. 2410 (c), which section is appended hereto. This request was declined by the clerk and in a letter dated July 8, 1958, the district court, in brief, informed the government that the holder of the certificate of purchase and the mortgagors questioned the government’s right to redeem the real property at that time and consequently the clerk would not issue the redemption certificate until the court so ordered. The letter further stated the court would be on vacation until September but it presumed the government would want to file a motion raising the question and would serve opposing counsel and have the motion set for hearing.
On July 23,1958, the government filed its motion seeking an order of the district court directing the clerk to issue a certificate of redemption to it, alleging that:
“(a) The defendant has made a proper tender to the Clerk in keeping with the provisions of Section 60-3451, General Statutes of Kansas, 1949, and has filed with said tender its affidavit stating' the amounts still due on its claim.
“(b) The provisions of Title 28, United States Code, Section 2410 (c), under which joinder of this defendant as a party to this action is authorized, accord this defendant a right of redemption co-existent with that accorded the defendant owner by Section 60-3440, General Statutes of Kansas, 1949, during the first twelve months after the sale of the property involved herein.”
Another portion of the motion contained the affidavit referred to in (a) above.
On September 3, 1958, during a hearing on the government’s motion, the mortgagors contended the trial court was without jurisdiction to grant the relief sought in the government’s motion. The trial court so found and in its order overruling the motion on the same day stated:
“. . . this court is without jurisdiction to grant the relief prayed for and has no jurisdiction of the subject matter of said motion.”
The government timely perfected the instant appeal from the above order and raises two questions.
1. Did the trial court err in denying the government’s motion made on the ground that 28 U. S. C. 2410 (c) accords the government a co-existent redemption right with that of the mortgagors under G. S. 1949, 60-3440?
2. Did the trial court have jurisdiction over the subject matter of the motion and to grant the relief prayed for?
On January 14, 1959, the mortgagors redeemed the property and were issued a certificate of redemption by the clerk of the court.
As is customary, we will proceed to the determination of the jurisdictional question, if one there be, before reaching the first question raised by the government.
The foreclosure decree entered on December 4, 1957, and the order of confirmation of sheriff’s sale on February 5, 1958, occurred during the term of court beginning on the fourth Monday of October, 1957, the next term began on the second Monday of February, 1958, and the government’s request of the court clerk for a redemption certificate made on June 5, 1958, was in the term of that court which began on the first Monday of May, 1958. The motion, as above stated, was filed on July 23,1958, which means that two terms of court in the thirty-third judicial district including Edwards county (G. S. 1949, 20-1029a) had expired from the time of the trial court’s decree and order on December 4, 1957, and the government’s demand on the court clerk and motion addressed to the trial court on July 23,1958.
The mortgagors contend that a trial court loses jurisdiction over its judgment after the expiration of the term in which a judgment is rendered absent the exceptions provided for in G. S. 1949, 60-3007, which are not present here. The contention is too far-reaching. The controlling rule of law as to jurisdiction after term was stated in Keys v. Smallwood, 152 Kan. 115, 102 P. 2d 1001.
“Rule followed that a judgment cannot be set aside, modified or in anywise affected after the term at which it is rendered except as provided by the civil code.” (Syl. fl.)
However, the Keys case was a garnishment proceeding and is not applicable in our present case.
Other authorities cited by the mortgagors are somewhat similar to the overall picture presented by our present case but they are distinguishable as to the question under consideration and, therefore, are not determinative thereof.
The government calls our attention to Johnson v. Wear, 110 Kan. 237, 204 Pac. 141, wherein (p. 243) Mitchell v. Insley, 33 Kan. 654, 657, 7 Pac. 201, was cited. The Mitchell case involved an original ejectment action where a deed was determined to constitute a mortgage to secure a payment of $2,000 and the mortgagee had a lien upon the land but it was further determined his remedy was not by ejectment. Subsequently the mortgagee filed a mortgage fore closure suit wherein the amount due under the mortgage was in issue. (p. 658.) The court stated that the amount due on the mortgage in the ejectment action was wholly immaterial, that ,the adjudication the deed was a mortgage was conclusive, and perhaps that something was due, but not the amount. The question of the amount due, therefore, remained undetermined. Justice Marshall in the Johnson case (p. 243) quoted the following language from page 657 of the Mitchell case:
“ ‘It is the general duty of the court trying a case to find upon all the issuable facts; yet findings which are not necessarily included in and become a part of the judgment, are not conclusive in other actions. Even where such findings are confirmed by final judgment, they are adjudications only so far as they are necessarily included in and become a part of the judgment.’ ”
The Mitchell case was also cited in Landon v. Clark, 221 Fed. 841, 845.
The only provision of the decree of foreclosure pertaining to redemption reads:
“. . . and in case said real estate is not redeemed from said sale for a period of eighteen months from the date of sale, as is by law in such cases made and provided. . . .”
By reason of the foregoing, the trial court obviously did not fully determine the redemption rights of the mortgagors as against the government, or vice versa, except by the general language of the phrase, “. . . as is by law in such cases made and provided.” The redemption rights of the mortgagors under our state statutes (G. S. 1949, 60-3440, et seq.) were therefore covered as were also the government’s redemption rights under 28 U. S. C. § 2410. Expressed in another way, the trial court, by using the language quoted above, of necessity ruled that all questions regarding the redemption of the real property here involved would be governed by both state and federal law.
We believe the trial court intended to subject the redemption questions to both state and federal law and that it made clear such intention when ruling on the government’s motion by use of the following language:
“Now therefore, it is by the court considered, ordered adjudged and decreed that said motion be and hereby is overruled.”
What other possible construction can be given this order? The motion was neither dismissed nor stricken, but was ruled upon, and in view of what has herein been said and the authorities relied on by the government in support of its contention that the trial court did have jurisdiction of the subject matter, we can only conclude the trial court had, and exercised, authority to determine the rights of redemption “as is by law in such cases made and provided,” as well as the power to grant or deny the relief prayed for in the motion by the government.
Determination of the second question requires that we set out a part of the mortgage executed by the mortgagors to the government. The form contained the following heading:
“United. States Department of Agriculture
“Farmers Home Administration
“Real Estate Mortgage for Kansas
“Special Livestock Loan”
Section 21 of the mortgage contained these provisions:
“That time is of the essence of this mortgage and of the note . . . and should default be made in the payment of the note secured hereby, or any installment due under said note . . . or if for any reason the Mortgagee should deem itself insecure, then in any of said events Mortgagee is hereby irrevocably authorized and empowered . . . (1) to inspect and repair said property . . . (2) to declare the entire indebtedness herein secured immediately due and payable and to foreclose this mortgage in the manner hereinafter set out, and (3) to pursue any remedy for it by law provided; provided, however, that each right, power, or remedy herein conferred upon Mortgagee is cumulative to every other right, power, or remedy of Mortgagee, whether herein set out or conferred by law. . . .”
Section 22 in part provided:
“That Mortgagee may foreclose this mortgage by action in a court of competent jurisdiction in accordance with the laws existing at the time of the commencement thereof. . . .”
Section 23 in pertinent part reads:
“That, should this said property be sold under foreclosure (I) Mortgagee or its agent may bid at such sale and purchase said property as a stranger: (2) Mortgagor will pay all costs . . . (3) Mortgagor does hereby expressly waive, to the extent permitted by law the benefits of all homestead, dower, exemption valuation, appraisement, stay and moratorium laws of the State of Kansas now in force or which may hereafter become laws, and the rights of possession of die mortgaged property during the period of redemption.” (Our emphasis.)
The mortgagors base their contentions primarily on G. S. 1949, 60-3440 as follows:
“For the first twelve months after such sale, the right of the defendant owner to redeem is exclusive; but if no redemption is made by the defendant owner at the end of that time, any creditor of the defendant and owner whose demand is a lien upon such real estate may redeem the same at any time within fifteen months from the date of sale. A mechanic’s lien, before decree enforcing the same, shall not be deemed such a lien as to entitle the holder to redeem.”
The government places its reliance on 28 U. S. C. § 2410, which is hereto appended in full, but more particularly it relies on subsection (c) thereof, as follows:
“Where a sale of real estate is made to satisfy a lien prior to that of the United States, the United States shall have one year from the date of sale within which to redeem.”
Mortgagors referred to other statutes involving redemption. Some of them are of little, if any, help in the determination of this appeal. Briefly stated, those that are pertinent here provide that after the issuance of the certificate to the purchaser at the sheriffs sale (G. S. 1949, 60-3438), the mortgagors could redeem the real property at any time within eighteen months from the day of sale (60-3439); for the first twelve months after the day of sale the mortgagors had the exclusive right to redeem but if at the end of that time they had not done so, any lien creditor could redeem within fifteen months from the date of sale (60-3440); after the expiration of the fifteen, months, the mortgagors could still redeem at any time before the end of the eighteen months, but the creditors could not. (60-3447.) The mortgagors could assign or transfer their rights of redemption whereby those same rights would pass to an assignee or transferee. (60-3455.) See Union Central Life Ins. Co. v. Reser, 134 Kan. 876, 8 P. 2d 366, for further discussion of some of our redemption statutes.
The sovereign immunity of the government from suit without the express mandate of the Congress to the contrary, by waiver or granting permission for such suit or suits, is of sufficient general knowledge that a full legal discussion thereof would be surplusage.
Neither can there be any argument with the government’s contention that federal laws are supreme over state laws where a conflict exists between them such as occurred in an action in a state court to recover statutory penalties for violation of the emergency price control act. (Testa v. Katt, 330 U. S. 386, 67 S. Ct. 810, 91 L. ed. 967.) The same is true where there were labor disputes involving interstate or foreign commerce. (Myers v. Bethlehem Corp., 303 U. S. 41, 58 S. Ct. 459, 82 L. ed. 638.)
The Supreme Court of the United States has not been hesitant in cases involving diversity of citizenship to remand them for de termination by the federal circuit court under state laws. For example, Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 L. ed. 1189, was an action concerning tort liability and involved application of state laws by the federal circuit court;
In United States v. Ryan, 124 F. Supp. 1, the Minnesota Torrens system as it related to the filing of federal tax liens was comprehensibly explained and it was held that the government failed to comply with the procedural requirements of the state law whereby its lien for taxes was lost. We cannot repeat all that was said in the Ryan case, as to do so would unduly extend this opinion, but the following statements therefrom are of significant consequence herein:
“The United States is not exempt from the provisions of the state statutes. The laws of the United States definitely provide that the tax lien here asserted will not become a valid lien unless notice thereof is filed as by state law prescribed. A state law affecting the title to property must-be followed, and is binding upon the United States.” (p. 10.)
“At any time, however, up to the time of the foreclosure of the prior mortgage held by Minnesota Federal Savings and Loan Association, the plaintiff could have perfected its hen by filing the notice as by statute required. The foreclosure of the mortgage and the expiration of the period of redemption has now precluded plaintiff from so doing. The mortgage contained a power of sale. Under the laws of the State of Minnesota, a mortgage containing a power of sale may be foreclosed by advertisement. There is nothing in the United States Code which precludes a foreclosure by advertisement. 28 U. S. C. A. § 2410 provides that in any action to foreclose a mortgage the United States may be joined as a party defendant. But there is nothing in this section, or in any section of the United States Code, which prohibits a foreclosure under a power of sale or which provides that the United States will not be bound thereby. The Minnesota Federal Savings and Loan Association was entitled to foreclose by advertisement, and the plaintiff, and all other parties interested in the property, is bound by the foreclosure. This exact question was before the Court in the case of Trust Co. of Texas v. United States, D. C., 3 F. Supp. 683, and the Court held that a mortgage foreclosure under power of sale extinguishes not only the rights of the owner in the property sold, but all subsequent and inferior liens thereon, including the lien of the United States. Therefore, in the instant case, the foreclosure divested the interest of the registered owner, Kenneth Ryan, and the rights of all parties claiming under or through him, including the plaintiff here.” (pp. 10-11.)
A case more analogous to our present one is United States v. Cless, 150 F. Supp. 687, where a first mortgagee had obtained a writ of fieri facias and later bid in and purchased the mortgaged property at the sheriff’s sale. He then sold the property to another but title had not yet passed. The government was seeking foreclosure of its second mortgage and the question was whether the second mortgage lien was divested by the sheriff’s sale in the light of 28 U. S. C. § 2410. In rendering summary judgment against the government, the district court there said:
“At the time the agency [the government] made this loan and entered its mortgage it had notice that its mortgage was second in lien to a first mortgage held by an individual entered over a year prior thereto.
“The mortgagors defaulted on their first mortgage. The mortgagee foreclosed and bought in the property at the Sheriff’s sale on his bid of the costs of the sale. Had the second mortgagee been an individual there is no question but that the hen of the second mortgagee would have been extinguished by the foreclosure on the first mortgage. Is the situation changed because the United States happens to be the second mortgage holder?
“The Government leans heavily on 28 U. S. C. § 2410(a), above cited. This statute is not mandatory, —it merely waives sovereign immunity in suits to foreclose mortgages or quiet titles. Haldeman v. United States, D. C. E. D. Mich., 93 F. Supp. 889. In other words, the purpose of this statute in which the United States consents to be named a party in an action which' seeks an adjudication touching any mortgage or other hen of the United States is merely to waive sovereign immunity from suit in certain types of cases. Wells v. Long, 9 Cir., 162 F. 2d 842.
“If the United States is entitled to a priority in this case it must be based on some statutory enactment. *. . . the federal statutes do not attempt to give priority in all cases to hens created under the paramount authority of the United States.’ ” (pp. 689-690.)
The court therein further stated:
“I find no evidence of a Congressional sensitivity in relation to claims of the Government predicated on loans made to individuals by various governmental agencies comparable to that evidenced in relation to tax claims, and for the very obvious reason that the latter deals, as above indicated, with a matter of pubhc policy, —the collection of taxes to enable the Government to .function. Certainly what was said in the Ryan case, supra, is pertinent in connection with the problem presented in this case concerning the hen of the United States under a second mortgage created in the course of an ordinary business transaction of an agency of the United States, as to which there is no federal statutory provision conferring any particular sanctity, and which, therefore, is dependent entirely both as to its position and enforcement upon State laws.” (p. 692.)
The Cless case was appealed by the government and appears as United States v. Cless, 254 F. 2d 590, where the circuit court affirmed the lower court and stated: '
“We find nothing the the statute giving the United States rights in this matter superior to the rights enjoyed by private citizens. The statute accords to the government no such preference.” (p. 593.)
In the same opinion it is further stated:
“In the absence of express Congressional action to the contrary, we think it is not asking too much from a federal agency, which has embarked upon the business of lending money in competition with private firms and individuals, simply to be governed by the same local law which controls the rights of private citizens in a similar endeavor.” (p. 594.)
In view of the language in the above federal court decisions to the effect that there is nothing in 28 U. S. C., § 2410 giving the government rights that are superior or preferential to the rights enjoyed by private citizens, we are unable to see that the government in this appeal has made it affirmatively appear that its substantial rights have been prejudiced. In its answer in the original foreclosure proceedings, the government, under 28 U. S. C., § 2410, could have asked for preferential or superior rights of redemption over those of the mortgagors, or at the time the trial court entered its judgment of foreclosures the government could have sought to have its redemption rights determined,' and finally, had the trial court, in view of the decisions of the federal courts, refused to grant such preferential or superior rights, the government still had the authority and power to bid at the sheriffs sale, which would have fully protected it. The government admits that it had the authority and power to bid at the sheriff’s sale the same as any private citizen in its position. The federal farm mortgage corporation was holder of a second mortgage under circumstances identicle with those in our present case in Federal Land Bank v. Ludwig, 157 Kan. 657, 143 P. 2d 784. The mortgage corporation appealed from an adverse decision of the court below. This court set out the pertinent statutes (pp. 659-660) and in reversing the trial court, substantially stated what has just been said above in respect to the government’s right to redeem, (pp. 660-661.)
In United States v. Jungels, 167 Kan. 482, 207 P. 2d 402, the government filed a claim on notes which had been barred by the five year statute of limitation for a long time — but less than twenty years. The evidence showed that during his lifetime the deceased maker had been solvent so far as non-exempt personal, real, and mixed property was concerned. The trial court’s instructions were that the jury could consider all this in determining “that it is more likely that these notes have been paid than that they have not,” (p. 484) and in affirming the verdict and judgment against the government, this court set out the controlling rules of evidence and concluded:
“While the statutes of limitation and nonclaim do not run against the United States when suing in its sovereign capacity it is well established that when the United States brings an action for money it is governed by the rules of evidence just as any litigant.” (pp. 487-488.)
Considering the terms of the government’s mortgage which bound both it and the mortgagors, all the provisions of 28 U. S. C., § 2410, the appropriate Kansas statutes and the cases decided thereunder, and the points emphasized in the foregoing discussion, we are compelled to hold the trial court was correct in its final decree overruling the motion of the government for a certificate of redemption irrespective of the reasons given or those that may be inferred from the journal entry of judgment.
Affirmed.
APPENDIX
“28 U. S. C. 2410 provides as follows:
“(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, including the District Court for the Territory of Alaska, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.
“(b) The complaint shall set forth with particularity the nature of the interest or lien of the United States. In actions in the State courts service upon the United States shall be made by serving the process of the court with a copy of the complaint upon the United States attorney for the district in which the action is brought or upon an assistant United States attorney or clerical employee designated by the United States attorney in writing filed with the clerk of the court in which the action is brought and by sending copies of the process and complaint, by registered mail, to the Attorney General of the United States at Washington, District of Columbia. In such actions the United States may appear and answer, plead or demur within sixty days after such service or such further time as the court may allow.
“(c) A judicial sale in such action or suit shall have the same effect respecting the discharge of the property from liens and encumbrances held by the United States as may be provided with respect to such matters by the local law of the place where the property is situated. A sale to satisfy a hen inferior to one of the United States, shall be made subject to and without disturbing the lien of the United States, unless the United States consents that the prop erty may be sold free of its lien and the proceeds divided as the parties may be entitled. Where a sale of real estate is made to satisfy a lien prior to that of the United States, the United States shall have one year from the date of sale within which to redeem. In any case where the debt owing the United States is due, the United States may ask, by way of affirmative relief, for the foreclosure of its own lien and where property is sold to satisfy a first lien held by the United States, the United States may bid at the sale such sum, not exceeding the amount of its claim with expenses of sale, as may be directed by the head of the department or agency of the United States which has charge of the administration of the laws in respect of which the claim of the United States arises.
“(d) Whenever any person has a lien upon any real or personal property, duly recorded in the jurisdiction in which the property is located, and a junior lien, other than a tax lien, in favor of the United States attaches to such property, such person may make a written request to the officer charged with the administration of the laws in respect of which the lien of the United States arises, to have the same extinguished. If after appropriate investigation, it appears to such officer that the proceeds from the sale of the property would be insufficient to wholly or partly satisfy the lien of the United States, or that the claim of the United States has been satisfied or by lapse of time or otherwise has become unenforceable, such officer shall so report to the Comptroller General who may issue a certificate releasing the property from such lien.” | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by the relatrix (appellee), Doris Mayer, under the provisions of G. S. 1949, Ch. 62, Art. 23 (the Illegitimate Children Act) to determine the parentage of twin children born to the relatrix. The trial court found the defendant (appellant), Ray Pinkerton, Jr., to be the father of the twin children, and entered judgment accordingly.
Defendant appeals and contends that inasmuch as section 5 of our Rill of Rights provides the right of trial by jury shall be inviolate and section 10 thereof provides in all prosecutions the accused shall be allowed a speedy public trial by an impartial jury, the trial court erred in refusing his request for the same.
In State, ex rel., v. Herbert, 96 Kan. 490, 152 Pac. 667, we held that the words “all prosecutions” (as mentioned in section 10 of the Rill of Rights) mean all criminal prosecutions for violations of the laws of the state. In the instant case, G. S. 1949, 62-2303 requires that the prosecution shall be in the name of the state of Kansas on the relation of the prosecuting witness, and that the rules of evidence shall, in all respects, be governed by the law regulating civil actions. Section 62-2311 provides that if the defendant deny the charge of parentage, the issue shall be tried by the court or a jury. Section 62-2312 provides that if the court or jury find the defendant is the father of such child, he shall be adjudged so, and shall stand charged with the maintenance and education thereof.
It has long been settled that proceedings of this kind are, in nature, civil rather than criminal (State, ex rel., v. Herbert, supra; State, ex rel., v. Stout, 101 Kan. 600, 606, 168 Pac. 853). The ultimate purpose of a bastardy proceeding, such as the instant case, is to establish the paternity of the child in question and to require the father of such child to contribute to its support and maintenance (State, ex rel., v. Conn, 160 Kan. 370, 162 P. 2d 76).
Our bastardy act was passed in 1868 (G. S. 1868, Ch. 47). The act repealed an earlier statute relating to the same subject (Laws 1859, Ch. 82; Comp. Laws 1862, Ch. 109). Neither of these statutes was ever embodied in any of the codes of civil or criminal procedure adopted in this state. Neither did they constitute a part of the Crimes Act. In all of our statutory compilations prior to the revision of 1923, the bastardy act was given a place, under the title “Illegitimate Children,” separate from any code of procedure. The fact that the revisers of our 1923 statute placed it under criminal procedure did not change the nature or purpose of the statute, nor did it make the procedure provided for therein any more criminal than it had previously. The bastardy act is a statute, separate from codes of civil or criminal procedure, enacted for the purpose of establishing the paternity of children and providing for their maintenance and support, as indicated by its title “Illegitimate Children”; and to accomplish that purpose provides a procedure of its own. It is a statutory action. We, therefore, look to the law relating to civil actions for procedure only on such points or questions where the bastardy act itself is silent, or for which it makes no provision (In re Bolman, 131 Kan. 593, 597, 292 Pac. 790). This being a statutory action and not a criminal prosecution, section 10 of the Bill of Rights has no application.
The constitutional guaranty that “the right of trial by jury shall be inviolate” (Bill of Rights, § 5) has no application to proceedings such as the instant case and does not extend beyond cases where such right existed at common law, but only applies to cases that were triable by jury before the constitution was adopted. (Tatlow v. Bacon, 101 Kan. 26, 30, 165 Pac. 835.) In Swarz v. Ramala, 63 Kan. 633, 66 Pac. 649, we stated:
“The right of trial by jury is not guaranteed by the constitution to litigants in all cases, but only in such cases as were properly triable by jury before the adoption of the constitution. In chancery and statutory proceedings the legislature has the power to dispense with trial by jury.” [Emphasis supplied.]
This matter was laid to rest early in the history of our state in the case of Kimball and others v. Connor, Starks and others, 3 Kan. 414, 432, wherein we stated:
“(Bill of Rights, sec. 5.) ‘The right of trial by jury shall be inviolate.’ . . . That provision does not require every trial to be by jury. Nor does it contemplate that every issue, which, by the laws in force at the adoption of the constitution of the state, was triable by jury, should remain irrevocably triable by that tribunal. Trial by jury is guaranteed only in those cases where that right existed at common law. Such is the meaning of the constitutional provision referred to, and in statutory proceedings, proceedings in chancery, &c„ the legislature is fully competent to dispense with the jury.”
(See also Cole v. Drum, 109 Kan. 148, 153, 197 Pac. 1105; Spena v. Goffe, 119 Kan. 831, 241 Pac. 257.)
It cannot be said that the instant case was a common-law action. As stated, it is statutory and the legislature had within its power the authority to prescribe the procedure of trial. G. S. 1949, 60-2903 provides, in substance, that issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury is waived; and that all other issues of fact shall be tiled by the court, subject to its power to submit issues to a jury. The instant action is not one for the recovery of money or of specific real or personal property. The only question here is one of paternity, and nothing in the mentioned statute would justify defendant’s request for a jury trial as a matter of right. Moreover, section 62-2311 of the Illegitimate Children Act provides that if the defendant deny the charge in the district court, the issue shall be tried by the court or to a jury. It is apparent that defendant’s right to a jury trial was a matter within the discretion of the trial court.
Defendant next contends that the trial court erred in not granting his request for a continuance based upon his counsel’s affidavit regarding the absence of a material witness. G. S. 1949, 60-2934 provides, in part, that a motion for continuance on account of the absence of evidence can be made only upon an affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to obtain it; and if it is for an absent witness, the affidavit must show where the witness resides, the probability of securing his testimony within a reasonable time, what facts he believes the witness will prove and that he believes them to be true. Without prolonging the discussion on this issue, suffice it to say, the affidavit failed to comply with the statutory requirements for a continuance and the court did not abuse its discretion in overruling defendant’s request for a continuance. The error complained of cannot be sustained.
In view of what has been said, the judgment of the trial court is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
Appellant filed a claim on a promissory note in the probate court of Lyon county against the estate of his father, W. W. Hill, who died testate on October 15, 1952. Decedent’s only surviving heirs were appellant and Myrtle Bessie Hill, his second wife who was appellant’s stepmother. On March 2, 1957, Myrtle Bessie Hill died intestate and Pearl G. Garriott was duly appointed administratrix of her estate.
On July 8, 1957, appellant’s claim was allowed by the probate court as a fourth class claim in the sum of $2,400 with eight per cent interest compounded from July 7, 1923, less a payment, making a balance due of $23,786.31, from which order Scott A. Mouse (appellee here) administrator, c. t. a., d. b. n., of the estate of W. W. Hill, appealed to the district court.
On August 20, 1958, the district court entered judgment whereby appellant’s claim was disallowed and appellant appeals to this court from that order.
Myrtle Bessie’s only heir was Ethel V. Lamoureux who was also named in decedent’s will to take personal property if Myrtle Bessie predeceased the decédent. The journal entry of judgment was signed by Roscoe W. Graves and Owen S. Samuel, “Attorneys for Heirs of Myrtle B. Hill.”
The notice of appeal to this court was directed to no one. It was signed by the attorneys for appellant and at the bottom thereof appeared the following:
“Service of a copy of the within Notice of Appeal acknowledged this 17th day of November, 1958.
“Putnam and Mankin
“By James W. Putnam
“Attorneys for Scott A. Mouse,
“Administrator C. T. A., D. B. N.,
“Estate of W. W. Hill, Dec’d.
“Roscoe W. Graves
“Roscoe W. Graves, Attorney for
“Estate of Myrtle B. Hill, Deceased.
“Lacy C. Haynes
“Lacy C. Haynes, Guardian ad Litem”
The record reflects no other acknowledgment or waiver of service and there is no affidavit showing that anyone else was served therewith.
A motion to dismiss the appeal was filed by Owen S. Samuel, as the only attorney of record for Leon A. Lamoureux and his wife, Ethel V. Lamoureux, for iffie reason that Leon and Ethel came within the provisions of G. S. 1949, 60-3306 and appellant had failed to. comply therewith in serving the notice of appeal.
The record of the proceedings in the court below shows that at the outset of the hearing counsel for appellant, after stating other appearances and that there were three appeals pending in the W. W. Hill estate, stated: ■
“Owen S. Samuel appears for Leon A. Lamoureux and his wife. Mr. Roscoe Graves appears for the Myrtle Hill Estate. For the purpose of this trial we are asking that these three cases be consolidated for hearing.”
The record indicates that Mr. Samuel did take an active part in the trial and his position was adverse to that of appellant.
In addition to what has already been said on the motion,to dismiss, the record further shows that in one of the appeals consolidated for trial by the district court, Leon A. Lamoureux had had a fourth class claim for $1,134.07 allowed by the trial court whereby the Lamoureuxes contend they are for that additional reason entitled to service of notice of appeal as adverse parties under the statute.
G. S. 1949, 60-3306, in part, provides as follo’yvs:
“Appeals to the Supreme court shall be taken by notice filed with the clerk of the trial court. ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal and who appeared and took part in the trial, or their attorneys of record. . . .”
Two cases which were dismissed because of failure to serve notice of appeal on an executor in his representative capacity contain good discussions of the above statute. (In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004; In re Estate of Johnson, 177 Kan. 368, 279 P. 2d 271.) Another dismissal because of failure to serve notice of appeal on a devisee and beneficiary was ordered in the case of In re Estate of Bergner, 173 Kan. 582, 250 P. 2d 781.
During the fifty years this statute has been in effect this court, as shown by our many decisions thereunder, has been called upon to apply it in a great number of cases, a few of which were cited in Polzin v. National Cooperative Refinery Ass’n, 179 Kan. 670, 298 P. 2d 333, opinion on rehearing, 180 Kan. 178, 302 P. 2d 1003. Our latest case concerned with failure of proof of service in Nicolay v. Parker, 185 Kan. 481, 345 P. 2d 1013, this day decided.
Appellant cites Shell Oil Co. v. Board of County Commrs, 171 Kan. 159, 231 P. 2d 220, but at page 163 of that opinion this court distinguished that case from the cases cited above and reapproved the rule established in them.
If appellant could obtain a reversal of the trial court’s judgment, Ethel’s interest, as heir of Myrtle Bessie Hill, would be affected because in that event Myrtle Bessie would get nothing from W. W. Hill’s estate. Ethel’s interest (sharing with appellant in the personal property of W. W. Hill under his will) would be lost because the estate would be totally exhausted by payment of appellants large claim, which was disallowed by the trial court.
Ethel satisfied every requirement of the statute as an adverse party and the notice of appeal as to her'was no notice because it was not served on her, or her attorney, nor did they waive such service. We think it unnecessary to go into the more complicated position of Leon even though his contention that he likewise was an adverse party with no service of notice of appeal might have merit. We can see no other alternative than to dismiss the appeal. So ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for personal injuries against a defendant motor carrier of property, and his insurance carrier.
The question presented on appeal is whether the trial court erred in sustaining a motion which dismissed the action as to the insurance carrier.
The plaintiff, Harold Sterling (appellant), filed an amended petition, hereafter referred to as the petition, which alleged a cause of action on the ground of negligence. For purposes of this appeal it may be assumed the petition stated a cause of action in ordinary negligence against the defendant Hartenstein who was operating a large truck upon the highways of Riley, Geary, Clay and Dickinson Counties, in the business of buying, selling and transporting, upon commission and for hire, milk and cream. The damages to the plaintiff were alleged to be the result of a collision' on the 7th day of October, 1957, between the parties at an intersection of a township road upon which the defendant Hartenstein was driving and a county highway upon which the plaintiff was driving.
The only allegations material herein relate to the insurance carrier. These allegations read as follows:
“6 — That at all times material herein, and for a long time prior to October 7, 1957, said Hartenstein desired to have public liability insurance upon■ said truck which would indemnify and insure him against loss and liability for loss arising to others from the negligent operation of said truck, whether operated in the business hereinafter mentioned or not; and desired to use said truck upon the public highways as a motor carrier of property, upon a long milk route in Riley, Geary, Clay and Dickinson Counties, in the business of buying and selling, and hauling upon commission and for hire, milk and cream; and desired to have such a public liability and insurance policy as required by the provisions of 66-1128 of 1957 Supplement of the General Statutes as would enable him to apply for and receive a permit or license from the State Corporation Commission to lawfully operate said truck in said business, and be such a public liability insurance policy as was required by said section of the Statute as a condition precedent to such license or permit, and for the protection and insurance of the public as users of the highways, including plaintiff, while said truck was being operated in such business. Said statute required such policy to be not less than $10,000.00 for injury to any one person in any one accident.
“7 — That such a policy of insurance was duly issued to said Hartenstein by said insurance company, and duly paid for by him; and said defendants duly maintained such policy in full force up to and including the time of the collision herein complained of. The exact amount of said insurance is unknown to plaintiff, but plaintiff believes, and alleges that same was for more than $50,000.00 and bound said insurance company to pay compensation to any one person including plaintiff, for injury in any one accident, caused by the negligent operation of said truck, in said business. That under the circumstances of this case, said statute became an integral part of such policy.
“8 — But said Hartenstein never did apply for and obtain such certificate or license but did use such truck as such motor .carrier in such business; and said defendant insurance corporation at all times knew and by the exercise of reasonable diligence could and should have known of such use. Plaintiff does not have access to said policy, same being in the possession of defendants, and plaintiff cannot set out a copy; and asks that defendants be required to file same or a true copy with the Clerk.
“9 — That said defendants owed to plaintiff as a part of the public the mandatory duty before using, and permitting and suffering said truck to be used, as such motor carrier of property to see to it that such permit or license was obtained from said Commission, and that such policy or a due certificate thereof was duly filed. And defendants having failed in such duty, should justly be and are bound to plaintiff to the same extent as if they had fully performed their such duty.” (Emphasis added.)
The plaintiff’s petition was filed on the 30th day of July, 1958, and upon the foregoing allegations the defendant, Farm Bureau Mutual Insurance Co., Inc. (appellee — hereafter referred to as the insurance carrier), moved the trial court for an order dismissing said petition as to it on the following grounds:
“(1) Plaintiff’s petition describes and classifies the truck of the defendant, Hartenstein, simply as a motor carrier of property,’ whereas, under the specific provisions of G. S. 1957 Supp., 66-1,128, to the General Statutes of Kansas for 1949, only the following classes of motor carriers, to-wit:
(a) public motor carrier of property;
(b) public motor carrier of passengers;
(c) contract motor carrier of property or passengers; or,
(d) private motor carrier of property,
are required to obtain a certificate or license from the State Corporation Commission, and file with said Commission, as a condition precedent thereto, the liability insurance policy referred to in said petition, and since the truck of the defendant, Hartenstein, as mentioned and described in said petition, does not fall within any of such statutory classifications, said Hartenstein was not required to obtain such certificate or license or file said policy with said Commission.
“(2) In the territory in which defendant, Hartenstein, operated his milk route, no common carrier service of any kind is, or was, at any time in said petition mentioned, available, and that under the provisions of subsection (d) of G. S. 1957 Supp., 66-1,109, his motor carrier service would not be affected by the provisions of the Motor Carrier Act of this state.
“(3) The Corporation Commission of the State of Kansas has never assumed, nor believed under the law it could assume, jurisdiction of the business of those persons who operate trucks or motor carriers for the transportation of milk and/or other perishable products over routes such as that of the defendant, Hartenstein.
“(4) The Farm Bureau Mutual Insurance Company, therefore, is not a proper party defendant at this time, and the attempt to malee it a party is premature.”
The trial court on the 1st day of October, 1958, sustained the above motion dismissing the petition as to the insurance carrier. From this order an appeal was duly perfected to this court by the plaintiff.
The plaintiff regards the above motion as equivalent to a demurrer. The defendants take the position that it is immaterial whether the motion be considered as a demurrer to the petition, on the ground that it states no cause of action against the insurance carrier, or whether it be considered as a motion for dismissal. It is conceded the petition is entitled to a liberal construction.
As a preliminary to further discussion the first three grounds of the above motion may be summarily answered by stating they have no merit at this point in the proceedings. In our opinion the allegations of the petition, liberally construed, classify the truck of the defendant Hartenstein as a motor carrier required to obtain a certificate or license from the State Corporation Commission pursuant to G. S. 1957 Supp., 66-1,128. The petition states Hartenstein was using the truck “in the business of buying and selling, and hauling upon commission and for hire, milk and cream” upon a long milk route in Riley, Geary, Clay and Dickinson Counties. From these allegations it clearly appears that his operation falls under G. S. 1949, 66-1,114, or 66-1,115, and necessarily was either a public, private or contract motor carrier, unless he came within the exception or exemption provided in G. S. 1957 Supp., 66-1,109(d). The plaintiff in alleging a cause of action such as this was not required to negative the exceptions or exemptions provided in the Motor Carrier Act. These are matters of defense and must be pleaded by way of answer to the petition.
The second and third grounds of the motion seek to contradict the allegations of the petition by injecting disputed questions of fact before joinder of issues and a trial upon the merits. This is improper, and furthermore, even if it were proper, the record does not disclose that any evidence or affidavit was offered in support of such grounds at the hearing on the motion. (Billups v. American Surety Co., 170 Kan. 666, 228 P. 2d 731.)
Further discussion will be confined to the fourth ground of the motion — whether under the facts and circumstances alleged the insurance carrier is a proper party defendant. The plaintiff in his petition admitted that he did not have access to the policy of insurance in question, the same being in the possession of the defendants, and for that reason could not set out a copy. His petition thereupon requested “that defendants be required to file same or a true copy with the Clerk.” At this stage of the proceedings the insurance carrier by its motion seeks a discharge.
The position taken by the plaintiff is that he has alleged a proper cause of action against both Hartenstein and his insurance carrier under the doctrine announced in Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918 (opinion denying rehearing, 143 Kan. 771, 57 P. 2d 16), a decision to which this court has on numerous occasions subsequently adhered. Some of the cases are Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557; Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 86 P. 2d 583; Henderson v. National Mutual Cas. Co., 164 Kan. 109, 187 P. 2d 508; and Johnson v. Killion, 178 Kan. 154, 283 P. 2d 433.
In Dunn v. Jones, supra, the court dealt with the liability of insurance carriers who furnish liability insurance to motor carriers under the statutory provision which requires such policies precedent to the issuance of a certificate or license under the Public Motor Carrier Act. (G. S. 1935, 66-1,128.) The statute there construed provided not merely for a liability insurance policy, prior to issuance of a certificate or license, but specified with some particularity the kind of liability insurance to be provided. The statute required insurance which “shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such [motor] carrier.” Construing that language in the light of other provisions, and of the purpose and intent of the whole Motor Carrier Act relating to the use of the public highways for business and commercial purposes, it was held that the legislature intended to require a policy which toould provide direct liability to injured persons without regard to judgment against the insured motor carrier. It was further held that the terms of the statute must be read into the policy. In other words, the insurance company must be held to have accepted the terms of the statute under which it furnished the policy to the motor carrier.
Amendments to G. S. 1935, 66-1,128, which now appears as G. S. 1957 Supp., 66-1,128, are immaterial insofar as the issues in the instant case are concerned.
The plaintiff states in his brief:
“Now if the policy ‘bound said insurance company to pay compensation ... to plaintiff for injury . . . caused by the negligent operation of said truck, in said business,’ the company is directly liable to plaintiff for the negligent injury. If such policy was in force, the company would not be relieved of liability, by mere failure to file it, or failure to file a certificate of its issue, nor by mere failure of Hartenstein to get a license . . .
“On the other hand, if it be assumed or the proof shown, the liability insurance here purports upon its face, to insure and indemnify Hartenstein against loss, and liability for loss arising to others, and to give no right of action to persons injured, by the negligent operation of the truck, until after a final judgment shall be obtained against Hartenstein, yet the insurance company, by reason of the statute, and its knowledge, that the truck was being used in the business alleged, is nevertheless liable to plaintiff. And tire allegations of the petition are sufficient to cover that phase. The company knew Hartenstein was availing himself of all the privileges of a regularly licensed motor carrier.” (Emphasis added.)
The plaintiff then argues that the insurance carrier is liable because the defendants are conclusively presumed to knOw the law— presumed to know, that the kind of business here operated, came under G. S. 1949, 66-1,114 and 1,115, and required the defendant Hartenstein to have a license from the Corporation Commission and to have a liability insurance policy or a certificate of the same on file, which bound the insurance carrier to pay compensation for injuries resulting from the negligpnt operation of such motor carrier. It is further argued that the defendants were presumed to know that the operation of such motor carrier in the business alleged, without such permit, and without such insurance, was a violation of the provisions of G. S. 1949, 66-1,130, which subjects “Every carrier to which this act applies and every person who violates or who procures, aids or abets in the violating of any provision of this act,” to criminal liability and punishment.
The position taken by the defendant insurance carrier is that in order to state a cause of action against Hartenstein and his insurance carrier, the plaintiff must allege the insured was at the time of the accident (a) the holder of a permit or license from the State Corporation Commission, (b) that he had obtained and filed with the Commission a liability insurance policy or certificate of insurance in lieu thereof as required by statute (66-1,128, supra), and (c) that the insured was at the time of the accident operating his truck on the highways of this state pursuant to his license or permit. (Citing, Billups v. American Surety Co., supra; Fitzgerald v. Thompson, 167 Kan. 87, 204 P. 2d 756; Lawrence v. Travelers Mutual Cas. Co., 155 Kan. 884, 130 P. 2d 622; Henderson v. National Mutual Cas. Co., supra; and others.)
In our opinion the material factor controlling the decision under the facts and circumstances presented by the record before us is the type of insurance policy issued to Hartenstein by the defendant insurance carrier. The plaintiff requested production of the insurance policy and the defendant insurance carrier moved for discharge. Under these circumstances it was incumbent upon the insurance carrier to produce the policy of insurance together with its motion for presentation to the trial court. Without submission of such policy of insurance to the trial court its ruling was premature. If the policy issued Hartenstein was a liability insurance policy of the type required of a licensed motor carrier in this state by G. S. 1957 Supp., 66-1,128, so that the action of the plaintiff to recover for injuries to his person or property, caused by the negligent operation of such motor carrier, may be brought directly against the motor carrier and his insurance company because of its liability insurance, the motion should have been overruled. But if the policy issued Hartenstein was merely an indemnity insurance policy, which purported on its face to insure and indemnify Hartenstein against loss and liability for loss arising to others, and to give no right of action to persons injured by the negligent operation of the truck directly against the insurance carrier, the motion should have been sustained.
If the policy of insurance bound the insurance carrier to pay compensation to the plaintiff for injury caused by the negligent operation of Hartenstein s truck in his business of buying, selling and transporting milk and cream (it was alleged that at the time of the accident Hartenstein was operating his truck on his route and the truck was loaded with milk and cream), the defendant insurance carrier is directly liable to the plaintiff for the negligent injury, and the failure of the motor carrier to have a permit or license from the State Corporation Commission would not free the insurance carrier of direct liability to the plaintiff. It has been held where a licensed carrier had such policy of insurance, as required by the statute, and it was not filed with any of the administrative bodies as provided in the act, such failure did not relieve the insurance company of direct liability to a member of the public injured by the negligent operation of such motor carrier. (Johnson v. Killion, supra.)
We turn now to the cases cited by the defendant insurance carrier in support of its contention regarding necessary allegations in the plaintiff’s petition.
In Lawrence v. Travelers Mutual Cas. Co., supra, the plaintiff alleged a cause of action in negligence against a motor carrier joining its insurance carrier as a party defendant. In reviewing the trial court’s ruling on a demurrer to the amended petition it was stated:
“With respect to the insurance company it is alleged that on the date in question the defendant insurer ‘was carrying the liability insurance on defendant’s truck in accordance with the laws of the state of Kansas.’ It is argued on behalf of the appellant insurer that this is insufficient to state a cause of action against the insurer. We think the point is well taken. A liability insurance policy may be of such a character that an action against the insurer will not lie until liability is established. (Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276.) There is no allegation that the defendant Honstead had been licensed as a carrier and a certificate issued to him by the state corporation commission, and that the insurance policy was of the type required of such a character as was before the court in Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918. Even if the allegation made could be construed into such an alie gation, which we think cannot be done, it would still be incumbent upon the plaintiff to allege and prove that the truck was being operated under the certificate at the time of the collision . . .” (p. 885.)
On the .surface the foregoing language would seem to indicate that it controls the decision herein. It is apparent, however, upon careful analysis that the amended petition was deficient in several respects and the court was not confronted with the facts and circumstances presented by the instant case. Further, in the Lawrence case there was no allegation the truck was being operated at the time of the collision in the business for which the certificate was issued (assuming the amended petition alleged a certificate was issued) by the State Corporation Commission.
In support of the foregoing quoted language, Smith v. Republic Underwriters, 152 Kan. 305, 103 P. 2d 858, and Schoonover v. Clark, 155 Kan. 835, 130 P. 2d 619, were cited as authorities at the end of the quotation. These cases turned upon the specific provisions written into the policies of insurance there involved and thus tend to clarify the force and effect of the language quoted from the Lawrence case and its application to the facts there presented.
The Smith and Schoonover cases, supra, further illustrate why the court must decline to speculate on what provisions may or may not be contained in the policy of insurance issued by the defendant insurance carrier in the instant case. Under given facts and circumstances the specific provisions of a policy of insurance become vitally material.
The court in Billups v. American Surety Co., supra, recognized the rule of pleading stated in the Lawrence case but declined in its holding to find application for the rule to the facts there presented.
In Fitzgerald v. Thompson, supra, after briefly making reference to the holdings in Dunn v. Jones, supra; Twichell v. Hetzel, supra; and Henderson v. National Mutual Cas. Co., supra, it was stated:
“The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has ‘from tire negligent operation’ of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.
“If the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy it states a cause of action against the insurer. This is the basis for the holdings of the court that one who sustains injury in his person or property by the negligent operation under the permit of the permit holder may sue both the permit holder and the insurer, or either one of them, and the action is in tort, not in contract.” (pp. 90, 91.)
It is well to bear in mind that an abstract statement of the law made in a given case must be tempered by the facts which give rise to its pronouncement. In all cases cited by the defendant insurance carrier herein, which declared the necessity of pleading the three elements (a, b, and c, supra), such additional facts as appear in the allegations of the plaintiff’s petition herein are lacking. The law declared in those cases must be confined to the state of facts which the court there had under consideration. The matter presently before the court is therefore one of first impression.
The substance of what has been said and held by the foregoing decision herein is that an insurance carrier furnishing liability insurance to a motor carrier may be joined with such motor carrier as a party defendant and held directly liable to a plaintiff injured by the negligent operation of a motor carrier on the highways of this state, even though such motor carrier does not have a permit or license from the State Corporation Commission under the Public Motor Carrier Act, where:
1. The motor carrier was required under the Public Motor Carrier Act of this state to have a license;
2. The policy of insurance issued the motor carrier was a liability insurance policy of the type required of a licensed motor carrier in this state by G. S. 1957 Supp., 66-1,128; and
3. The motor carrier was at the time of the accident being operated on tire highways of this state in the business for which a license or permit was required, and in contemplation of which the insurance policy was issued by the insurance carrier for compliance with tire Public Motor Carrier Act.
The defendant insurance carrier’s contention that the defendants are improperly joined, since the motor carrier’s liability is in tort and the insurer’s liability in contract, has been effectively answered in Fitzgerald v. Thompson, supra, wherein it was stated:
. . We think it necessarily follows that plaintiff may also join any other party who is liable for the tort, such as the insurer of the operator of the vehicle involved who has answered the tort liability of one of the other parties.” (p. 91.)
In fairness to the trial court and the parties litigant further comment should be made in the event the policy of insurance issued by the defendant insurance carrier is an ordinary indemnity policy. Inferentially, the decision that the motion for discharge of the defendant insurance carrier should be sustained in this eventuality indicates our holding.
The plaintiff alleged in his petition that “said defendant insurance corporation at all times knew and by the exercise of reasonable diligence could and should have known” (emphasis added) that the defendant Hartenstein was operating his motor carrier on the public highways of this state in a business which required the issuance of a permit or license from the State Corporation Commission. If by so alleging the plaintiff intends to impose upon the insurance carrier the obligation of policing its policyholders to determine whether some may be violating the Public Motor Carrier Act, it is an unwarranted extension of the doctrine established in Dunn v. Jones, supra. We regard the criminal liability and punishment imposed by G. S. 1949, 66-1,130, as sufficient to enforce compliance with the provisions of the Public Motor Carrier Act.
Furthermore, where the policy issued is an ordinary indemnity policy, we reject as unwarranted the duty which plaintiff seeks to impose upon an insurance carrier by the provisions of paragraph 9 in his petition. Knowledge on the part of an insurance company that a motor carrier for which it issues an indemnity policy should comply with the Public Motor Carrier Act is not in and of itself sufficient to force direct liability upon the insurance carrier by reading the statute (66-1,128, supra) into the policy. On this point the insurance policy involved in Schoonover v. Clark, supra, is of interest. It was there said:
“. . . the controlling question relates to the trial court’s ruling that at the time and in the circumstances of the collision the defendant’s truck was being incidentally used in his business as a licensed private carrier. If so, the insurance carrier was properly joined as a codefendant in the action . . . On the other hand, if the principal defendant was not engaged directly or incidentally in the pursuit of his business as a licensed carrier, then under the terms of the policy issued by the defendant casualty company its liability was merely one of an indemnitor, and it could only be subjected to a judgment, if at all, when a judgment had been obtained against the principal defendant . . .” (p. 837.)
Conceivably, in situations described in the Schoonover case, the motor carrier may procure his insurance for compliance with the Public Motor Carrier Act from another company.
The judgment of the trial court discharging the defendant insurance carrier from the action is reversed with directions to proceed in accordance with the views herein stated. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This appeal, authorized by G. S. 1949, 44-710b(c), is from a judgment by the district court which, after the judicial review permitted by G. S. 1949, 44-710b (b), reversed a decision of the State Labor Commissioner holding N. C. Read d/b/a Yellow and City Cab Company to be a liable employer under the Kansas Employment Security Law (G. S. 1949, 44-701, et seq., as amended).
The facts and proceedings giving rise to the appeal are not only informative but important to its decision and should be detailed.
Following classification of Read as a liable employer under the employment security law administrative proceedings were had before the Commissioner. After a hearing, pursuant to G. S. 1949, 44-710b(c), where evidence was adduced, the Commissioner'made findings of fact. Such findings read:
“N. C. Read does business as a sole proprietor engaged in' the taxicab business in the City of Parsons, Kansas, doing business as Yellow and City Cab. Read owns six taxicabs, which are painted yellow on top and have painted on the doors in yellow ‘Yellow Cab, Phone 266.’ Said taxicabs are equipped with two-way radios, and Read maintains a taxicab office in which he has a waiting room for passengers in which there is a bench and some chairs for the customers’ convenience in waiting for a taxi. Also, at said office is a room for the dispatcher and another office that drivers use for a standby room. Read admits to the employment of two regular and one relief dispatchers. In addition to these employees, Read has written contracts with ten individuals who drive the taxicabs owned by Read. Each of these contracts contain the same provisions and are entitled ‘Rental Agreement.’
“Without detailing all of the provisions of said agreement, these contracts provide for the furnishing of a taxicab by Read to the individual driver, and in addition Read agrees to furnish dispatching service and maintain and pay all expenses necessarily incurred in connection with the maintenance and operation of said taxicab. Each driver agrees to pay to Read the equivalent of 60% of all receipts accruing from the operation of said taxicab, and each driver retains the balance of 40% of receipts received. These contracts are terminable at the will of either party and, under the provisions of said agreement, no taxicab driver is hable to Read for the usual and ordinary wear and tear of said taxicab resulting from its operation and no taxicab driver is hable to Read for any damage which is caused by collision or accident.
“Read requires the drivers to be shaved, properly dressed and not use intoxicating liquor. None of the individuals with whom Read has contracts are listed in the Parsons telephone directory as being taxicab drivers. Drivers are required to keep their cabs subject to call or pay a charge of $3.50 per hour when they go ‘on time.’ The drivers are also instructed to get their gas and repairs at certain service stations, all of which is charged by said drivers to Read’s credit account with said stations. Drivers for all practical purposes get their passengers through the dispatcher, although occasionally they might have a pickup. Read extends credit to Southwestern Bell Telephone, Western Union and a drug store, for which deliveries are made. These companies give individual taxicab drivers a charge ticket which he turns into the office, on checking the cab in, for cash.
“Drivers are required to maintain waybills, and 'dispatchers maintain a record of calls to drivers and these records are cross checked to determine that the driver accounts for each fare. No driver has any right to acquire any interest in taxicabs owned by Read. The drivers operate in what is generally considered two shifts. The morning shift comes on at 5:00 A. M. These drivers are required to release their cabs to the drivers for the later afternoon and night shift at 4:00 P. M. Each driver accounts to Read for Read’s 60% of the day’s receipts on a daily basis.”
After making the foregoing findings the Commissioner made conclusions of law which, so far as here pertinent, are that the taxicab drivers under their contract with Read were employees, rather than independent contractors; that the portion of the daily receipts, i. e., forty per cent of gross revenues from fees collected and retained by such drivers from the operation of Read’s taxicabs under the contract, constituted “commissions” and therefore wages within the definition of the term “wages” used in the law (G. S. 1957 Supp., 44-703[o]); that said drivers were in employment as that term is defined in the law (G. S. 1957 Supp., 44-703[i]); and that there being a sufficient number of individuals in employment for a sufficient time Read was a liable employer within the definition of the term “employer” as defined in such law (Now G. S. 1957 Supp., 44-70S[fc]).
Thereupon, based on the foregoing findings and conclusions, the Commissioner rendered his decision wherein he held Read was a liable employer under the employment security law and liable for contributions at his assigned rate on the percentage of gross rev enue, derived from the operation of taxicabs owned by him, which was retained by the taxicab drivers.
Soon after rendition of the Commissioner’s decision, and within the time prescribed by G. S. 1949, 44-710(b), Read sought judicial review of such decision in the district court by filing a petition wherein he alleged the decision was contrary to the evidence in that he was not an employer within the meaning of the employment security law; that by contract all drivers of his taxicabs were independent contractors; and that the decision was contrary to such employment security law in that there was no legal liability for contributions under its terms for money earned by an independent contractor. Based upon these allegations, and others not here important, he prayed that such decision be reVersed and set aside and that the court make a determination that he was not an employer within the provisions of such law.
By way of answer, to which he attached a full and complete copy of the involved decision, the Commissioner alleged the findings of fact contained in his decision were supported by evidence and that the jurisdiction of the district court was confined solely to questions of law, all as prescribed by G. S. 1949, 44-710b (b); denied such decision was contrary to the evidence and that the taxicab drivers were independent contractors under their contract with Read; and prayed that his decision be affirmed.
With issues joined as related the full and complete record before the Commissioner at the time of his hearing was certified to the district court and filed of record with the clerk of such court. This, it is to be noted, included, among other things, a transcript of the evidence taken by the Commissioner at the hearing; samples of the daily waybills Read required the drivers to prepare and file, showing the beginning and ending of trips, number of passengers carried, and the amount of fares collected; and a copy of the contract entered into between Read and each driver, titled “rental agreement,” which, for all practical purposes it may be said, contained provisions similar in substance to those set forth in the second paragraph of the Commissioner’s findings, as heretofore quoted.
Thereafter the district court heard the review proceeding in a summary manner without additional evidence, all as contemplated by the section of the statute last above mentioned, and, after oral argument and submission of briefs by respective counsel, rendered its decision holding, on the basis of record before the Commissioner as certified, that: (1) The findings of fact made by the Commissioner were considered as conclusive upon the court (G. S. 1949, 44-710b[b]); (2) the Commissioner erred in finding the relationship between Read and his taxicab drivers to be that of employer and employee, or master and servant; (3) the legal relationship between Read and his taxicab drivers' was one of contract and bailment; (4) where a question existed as to the nature of the relationship, such question must be resolved in favor of the taxpayer; (5) Read was not liable as employer under the employment security law. Thereupon the trial court reversed the Commissioner’s order and set it aside.
Subsequently, and after the overruling of his motion for a new trial, the Commissioner perfected the instant appeal in which, under proper specifications of error, he is entitled to appellate review of the district court’s rulings and judgment.
At the outset, and before giving consideration to the issues presented, it should be said appellee does not contest liability on the basis he was not an “employer” within the meaning of the definition of G. S. 1957 Supp., 44-703(h) (1), if the record before us discloses he is a liable employer under other provisions of the employment security law.
In addition, we deem it necessary to point out the function of the district court, as well as this court, in a proceeding seeking judicial review of a decision such as is here involved under express provisions of the employment security law.
G. S. 1949, 44-710b(b), dealing with judicial review in such cases, provides:
“. . . In any proceeding under this subsection the findings of the commission as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law . . .”
Although dealing with an appeal under G. S. 1939 Supp., 44-709(h) and (i), of what was then known as the Unemployment Compensation Law, this court in Craig v. Kansas State Labor Commissioner, 154 Kan. 691 Syl. j[ 2, 121 P. 2d 203, considered identical statutory language and in enunciating the applicable rule as to the function of the respective appellate courts above mentioned, said:
“. . . Under the statute the function of the district court on appeal to it, and of this court on subsequent appeal, is not to find facts, but only to determine whether facts found are supported by the evidence before the administrative body. . . .” (p. 694.)
Thus, since the district court in its decision expressly recognized the foregoing limitations upon its power and authority and no one contends fraud is involved, it appears that tribunal must have concluded that the facts on which the Commissioner based his decision, when surveyed in their most favorable light, were wholly insufficient as a matter of law to warrant or uphold his heretofore stated conclusions of law.
It can now be stated, that in a closer approach to the issues, we have carefully read the entire record and are convinced the evidence supports all of the heretofore quoted factual findings made by the appellant (Commissioner). Therefore we turn to questions raised by the parties mindful, as we do so, that any error committed by appellant in his conclusions of law, based on such findings, is subject to judicial review. (Craig v. Kansas State Labor Commissioner, supra, Syl. ¶ 3, and page 695.)
From what has been stated it becomes obvious the all-decisive question involved in this case, however argued, is whether the relationship of employer and employee exists between appellee (Read) and the drivers of his taxicabs.
Pertinent provisions of the employment security law, under which appellant assessed contributions against the appellee as a liable employer, will now be noted.
G. S. 1957 Supp., 44-703(i), defines the term “employment.” It reads:
“ ‘Employment’ means any service, subject to the other provisions of this subsection, including service in interstate commerce, performed for wages or under any contract of hire, written or oral, express or implied. . . . (7) Services performed by an individual for wages or under any contract of hire shall be deemed to be employment subject to this act unless and until it is shown to the satisfaction of the commissioner that (a) such individual has been and will continue to be free from control of [or] direction over the performance of such services, both under his contract of hire and in fact; and (h) such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed ...”
G. S. 1957 Supp., 44-703(o), defining “wages,” reads:
“ ‘Wages’ means all compensation for services, including commissions and bonuses and the cash value of all remuneration in any medium other than cash.”
It is clear from the record presented that in district court the appellant there — appellee here — relied solely on the proposition the involved drivers were independent contractors. Indeed in this court he states the only question involved is whether he and his drivers stand in the relation of employer and employee or bailor and bailee, and argues that, under the Rental Agreement and the operation of the cab business as testified to by him, the drivers are independent contractors, hence he is not subject to contribution under the employment security law as an employer.
In view of the foregoing and the conclusions to be presently announced, especially since it appears the principal conclusion of law reviewed in the court below was based on the premise the drivers were employees rather than independent contractors, we do not believe it is either necessary or required that we here labor contentions advanced by appellant to the effect the statutory definition of the term “employment,” as it appears in the above quoted section of the statute, evidences legislative intent that the common-law standards applicable in determining the status of the relationship of employer and employee or master and servant were not controlling. Even so, and without deciding the question, we feel impelled to state appellant’s position on this- point finds some support in the authorities. See, e. g., Sound Cities Gas & Oil Co. v. Ryan, 13 Wn. 2d 457, 125 P. 2d 246; Salt Lake Transportation Co. v. Board of Review, 5 Utah 2d 87, 296 P. 2d 983; Ross v. Cummins, 7 Ill. 2d 595, 131 N. E. 2d 521; Life & Casualty Co. v. U. C. C., 178 Va. 46, 16 S. E. 2d 357; Murphy v. Daumit, 387 Ill. 406, 56 N. E. 2d 800; 55 Yale Law Journal, pp. 76 and 86; 8 Vanderbilt Law Review, pp. 245 and 255; 48 Am. Jur., Social Security, Unemployment Insurance, Etc., pp. 524 to 526, inch and 527 §§ 17, 19.
In giving consideration to appellee’s position respecting his status, and that of his drivers, under the contract, the evidence and the administrative findings, we can turn to our own decisions for general rules defining masters and servants and independent contractors. See Houdek v. Gloyd, 152 Kan. 789, 107 P. 2d 751, where it is held:
“A master is a principal who employs another to perform service for him, and who controls or has the right to control the physical conduct of the other in the performance of such service, and the servant is the person so employed.
“An independent contractor is generally one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to die result of his work.” (Syl. ¶¶ 2, 3.)
For more recent decisions, approving the foregoing rules, see Sims v. Dietrich, 155 Kan. 310, 124 P. 2d 507; Bush v. Wilson & Co., 157 Kan. 82, 86, 87, 138 P. 2d 457.
With respect to the “right to control,” mentioned in the first of the foregoing rules, it has frequently been pointed out that this means the right to control, not the actual interference or exercise of control, by an employer. (Bush v. Wilson & Co., supra, page 86; Sims v. Dietrich, supra, page 312; Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868.)
When the heretofore quoted facts found by the appellant (Commissioner), which we pause for purposes of emphasis to repeat, are supported by the evidence and therefore conclusive and binding, are carefully analyzed, we are convinced they disclose that the appellee not only had the right and authority to direct and control the manner in which his drivers carried on their operations but to a certain extent actually exercised those rights. Therefore we have little difficulty in concluding that, under our own decisions, such facts were sufficient to warrant and uphold appellants overall conclusion of law that such drivers, under their contract with appellee, were employees, rather than independent contractors. Having so concluded, it necessarily follows, the trial court’s holding that the legal relationship between appellee and his drivers is one of contract and bailment is erroneous and cannot be upheld. This, we may add, is true even though our research has failed to disclose any case which, from the standpoint of facts involved, can be said to be identical with the one here involved. Be that as it may, we are not compelled to base our conclusions solely upon our own decisions. Our research discloses several cases from sister states which reach a like conclusion and, in our opinion, from the standpoint of agreements, facts, issues and principles involved, are so similar to the case at bar they may be regarded as controlling precedents. (Kaus v. Unemployment Com., 230 Iowa 860, 299 N. W. 415; In re Farwest Taxi Service, Inc., 9 Wn. 2d 134, 114 P. 2d 164; Myers v. Cummins, Director of Labor, 9 Ill. 2d 582, 138 N. E. 2d 491; Redwine v. Wilkes, 83 Ga. 645, 64 S. E. 2d 101; Radley v. Commonwealth, 297 Ky. 830, 181 S. W. 2d 417.)
In conclusion it should be stated we have not ignored appellee’s contentions that in Martin v. Wichita Cab Co., 161 Kan. 510, 170 P. 2d 147, we held that the finding inherent in the trial court’s judgment, that the relationship between a taxicab company and the drivers of cabs was not that of master and servant but one of contractor and contractee akin to a bailment, was supported by evidence. One distinguishing feature in that case comes from the fact that there it was the district court’s province to pass upon the facts where — as here — the facts found by the involved administrative agency were conclusive upon the trial court and its jurisdiction was confined to questions of law. Moreover, in our opinion, other factors present in that case (See the opinion, particularly the last full paragraph at page 517), not present in this, make it clearly distinguishable.
Neither have we overlooked Party Cab Co. v. United States, cited by appellee as appearing in 10 A. L. R. 2d 358. It suffices to say it is our view, that under the controlling facts, that case is also distinguishable.
Nor have we ignored the fact appellee relies upon a letter from the.United States Treasury Department, which he produced in district court, stating in substance that in the same situation as is here involved, another cab owner was advised that his taxicab drivers were in fact independent contractors and not subject to the Federal Unemployment Tax Act. The short and simple answer to all contentions made with respect to such letter is that this court is not bound by decisions of the Treasury Department with respect to such matters and is disposed to adhere to the decisions to which it has heretofore referred.
What has been heretofore stated and held means that the trial court’s decision and judgment reversing and setting aside the order of the appellant (Commissioner) was erroneous and must be reversed.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant was tided by a jury and convicted in the district court of Shawnee County, Kansas, of the crime of grand larceny as defined in G. S. 1957 Supp., 21-533, for the theft of an automobile. Following the overruling of his motion for a new trial, the appellant was sentenced to the Kansas State Penitentiary for a term of not less than ten years in accordance with the provisions of G. S. 1949, 21-534 and 21-107a upon his stipulation that he had been previously convicted of the crime of grand larceny. The appellant was represented by competent counsel throughout the trial; at the hearing of his motion for a new trial, and at the time sentence was pronounced upon him.
At the outset, this court is first confronted with the question of its jurisdiction to entertain this appeal. Following the appellant’s trial and conviction in the district court on December 2, 1958; the overruling of his motion for a new trial and his sentence to the Kansas State Penitentiary on December 10, 1958, and while confined under the sentence imposed, he attempted pro se to take an appeal to this court by filing with the clerk of the district court on January 30, 1959, a paper which he denominated a notice of appeal. It was signed by the appellant, but no service of the notice of appeal was had upon the county attorney, or proof of service filed with the clerk of the court. The instrument reads:
“Notice is hereby given that Appellant, Merritt C. Shehi, wishes to appeal his conviction in the Shawnee County District Court. I. e. (Grand Larceny Auto, Case No. 21319, rendered on the 2nd day of December, 1958, in the Shawnee County District Court.) to the Kansas State Supreme Court, sitting in Shawnee County, at Topeka, Kansas.”
In passing, it is noted that no attempt was made to appeal from the order of December 10, 1958, overruling the appellant’s motion for a new trial, which, if the appeal was properly before us, would preclude review of alleged trial errors. (State v. Turner, 183 Kan. 496, 328 P. 2d 733; State v. Hamilton, 185 Kan. 101, 340 P. 2d 390.)
G. S. 1949, 62-1724, provides the method for a defendant to perfect an appeal to the Supreme Court. The pertinent portion of the statute reads:
“If defendant does not seek to have execution of his sentence stayed, or release from custody on bond pending his appeal, he may appeal at any time within six months from the date of the sentence by serving notice of appeal on the county attorney of the county in which he was tried and filing the same with the clerk of the district court; and such clerk, within ten days after such notice is filed with him, shall send a certified copy of such notice with proof of service and a certified copy of the journal entry of defendant’s conviction to the clerk of the supreme court. Defendant shall then prepare and present his appeal in accordance with the statutes and rules of court applicable thereto.”
It is evident that the appellant failed to perfect this appeal within the time and in the manner provided by the above-mentioned statute since he failed to serve notice of the appeal upon the county attorney within six months from the date of sentence, or show a waiver of proof of service where service is acknowledged by the county attorney. (Polzin v. National Cooperative Refinery Ass'n, opinion on rehearing, 180 Kan. 178, 179, 302 P. 2d 1003.)
The jurisdiction of this court to entertain an appeal is conferred by statute pursuant to Art. 3, Sec. 3 of the Constitution of Kansas, and when the record discloses lack of jurisdiction, it is the duty of this court to dismiss the appeal. This court cannot enlarge the scope of statutes prescribing the manner of appealing to the Supreme Court by judicial interpretation; if there are to be exceptions to the plain language of the statutes they must be made by the legislature, not by this court.
In State v. Sims, 184 Kan. 587, 337 P. 2d 704, the precise question here presented was decided, and it was held:
“Supreme court has no jurisdiction to entertain an appeal by a defendant in a criminal case, unless he first complies with G. S. 1949, 62-1724 by serving within time prescribed therein notice of appeal on the county attorney of the county in which he was tried, and filing the same, showing proof of such service, with the clerk of the district court.” (Syl. 1.)
In the opinion it was said:
“The pertinent portions of G. S. 1949, 62-1724 relating to perfecting appeals in criminal cases to the supreme court provide that a defendant may appeal at any time within six months from the date of the sentence by serving notice of appeal on the county attorney of the county in which he was tried and filing the same with the clerk of the district court. It is apparent that in order for a defendant to perfect an appeal in a criminal action so that this court may have jurisdiction to review the decision of the trial court or some intermediate order thereof, not only is service of the notice of appeal on the county attorney in the county in which defendant was tried mandatory, but such notice, together with proof of service on the county attorney, must be filed with the clerk of the district court within the time provided by law. Such has been the rule in this state since the early days. (Carr v State, 1 Kan. 331; State v. King, 1 Kan. 466; State v. Teissedre, 30 Kan. 210, 2 Pac. 108; Cochran v. Amrine, supra, and cases therein cited.)
“In a criminal action a defendant accomplishes nothing by filing a notice of appeal with the clerk of the trial court, unless service has been made on the county attorney as attorney for the state. This court has jurisdiction to hear appeals in criminal cases only if they are taken within the time and manner specified by the legislature (G. S. 1949, 62-1724). Service of notice of appeal not having been made on the county attorney, as provided by law, this court has no jurisdiction in this action and the appeal is dismissed.” (pp. 588, 589.)
In view of the foregoing it is the duty of this court to dismiss this appeal.
The state furnished an abstract of the proceedings and testimony of the trial in the district court. In addition, the appellant has filed a document which he entitled "Appellant’s Brief and Abstract” in which he sets forth nine specifications of error. Although these specifications of error are not subject to appellate review for the reason heretofore stated, the fact that the appellant attempted pro se to perfect this appeal prompted us to review the record and we find nothing which was prejudicial to his rights at the trial or which denied him the equal protection of the law.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by claimants, a widow and minor daughter, from an order of the trial court denying an award of compensation in an action under the Kansas workmens compensation act.
The three respondents had appealed to the district court from an award of compensation in favor of claimants made by the workmen’s compensation commissioner in which proceeding the facts were stipulated by counsel. In a memorandum decision the trial court substantially found the facts to be that on June 26, 1957, Clarence Bratcher (hereinafter called the workman), while working for respondents, sustained accidental injury arising out of and in the course of his employment which resulted in his death; notice and written claim were properly made; the workman’s average weekly wage was $50.00; D. H. R.oyse had procured and paid for a $5,000 accident and life insurance policy on the workman, and the proceeds from this policy were paid to the widow, but no medical treatment or funeral benefits had been furnished nor had workmen’s compensation payments been made to the workman or the claimants, who were totally dependent on the workman at his death; respondents were Star Route mail carriers under contract with the United States post office department; they carried mail originating both inside and outside of Kansas which was destined for points both inside and outside of the state; on June 25, 1957, the workman was employed and driving a truck owned by D. H. Royse; he had picked up mail at Hutchinson and driven to Pratt where some of the mail was delivered to connecting Star Route carriers; the workman had picked up mail at the Rock Island station in Pratt and on June 26, 1957, at 4:30 a. m. he proceeded from Pratt in an easterly direction where a bridge had crossed a stream. However, heavy rains had washed out the bridge and the mail truck fell into the creek bed and the workman sustained injuries from which he died.
The trial court then repeated some of the statements made before the commissioner by counsel for claimants as to whether all three of the respondents, or just D. H. Royse, should be in the proceeding and also repeated statements by respondents’ counsel to the effect that while all three respondents’ names were on the mail contract, that did not speak the true nature of the operation because it was an individual operation and although counsel feared that all three Royses were respondents, he stipulated only that the workman was an employee of D. H. Royse.
Other pertinent findings of the trial court were that the record showed nothing concerning the number of employees the three respondents had which would bring them under G. S. 1957 Supp. 44-507 even though in the examiner’s findings the following had appeared:
“ ‘This Examiner has been advised by the attorney for the respondents that the respondents had five employees for more than thirty days prior to the date of the accident.’ ”
The trial court found as follows in this regard:
“There is no evidence that any one or more of the Respondents or the deceased employee was engaged in any other trade or business. Under the evidence here, this court certainly could not find that the Respondents had five or more workmen to operate the Star Mail Route between Hutchinson and Pratt.”
The trial court concluded the commissioner’s award of compensation in favor of claimants should be reversed and set aside, and the claim dismissed.
Claimants perfected their appeal from the above judgment. Seven specifications of error are presented but we are primarily concerned with No. 6, which reads:
“The court erred in finding the evidence insufficient to show that five workmen were employed by the respondents for more than one month prior to the death of the deceased.”
As the trial court stated twice in its memorandum decision, the record is lacking in evidence to support an award in favor of claimants. A thorough search of the record before us nowhere reveals how many employees any one, or all three, of the respondents had at any time.
G. S. 1957 Supp. 44-507 provides:
“It is hereby determined that the necessity for this law and the reason for its enactment exists only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five (5) or more workmen are employed within the state of Kansas at the time of the accident. , . .”
Claimants contend the quoted statement by the examiner was an admission by respondents that they did have five or more employees to satisfy the requirements of the above statute. The trial court did not agree with this contention and, on the contrary, found there was no evidence or stipulation of fact to support a finding that the respondents singly or jointly had the requisite number of employees at any time.
Claimants rely on Walker v. Finney County Water Users Ass’n, 150 Kan. 254, 92 P. 2d 11, but there the evidence was in conflict (p. 257) as to the number of employees. Here there is no evidence in regard to that element so the cases are distinguishable. The Walker case repeats our steadfast rule that this court reviews a record only to ascertain whether there is competent evidence which supports, or tends to support the findings. If we were to follow claimants’ theory and “infer” there was evidence that respondents had five employees, as required by the statute, we would still be confronted with the rule just stated that when there is competent evidence tending to support the findings of the trial court on appellate review this court is bound thereby. (See, also, Weimer v. Sauder Tank Co., 184 Kan. 422, 425, 337 P. 2d 672.) The burden of establishing the fact that respondents had the requisite number of employees rested on claimants. (Thorp v. Victory Cab Co., 172 Kan. 384, 389, 240 P. 2d 128; Gangel v. Cook Saw Mill, 175 Kan. 673, 674, 675, 265 P. 2d 853.) This they failed to do.
From a practical standpoint, if there had been evidence or a stipulation which might have have supported the statement of the examiner herein quoted, then claimants should have had such evidence in the record before the trial court and before this court. Their failure to establish this essential element which was necessary to an application of the workmen’s compensation act, precludes their recovery thereunder. As this court substantially stated in the second appearance of Thorp v. Victory Cab Co., 173 Kan. 383, 385, 246 P. 2d 273, under the established rule and in the face of the record before the trial court and before this court on appeal, “. . . we have no power or authority to disturb those findings or conclusions.” To the same effect is the decision of this court in LaRue v. Sierra Petroleum Co., 183 Kan. 153, 157, 325 P. 2d 59.
It follows, therefore, that we do not need to discuss other questions raised by claimants’ appeal since the record fails in the respect heretofore discussed.
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The opinion of the court was delivered by
Foth, C.:
On August 6, 1973, at about 6:00 p. m., Hawk’s Pharmacy in Wichita was held up at gunpoint by an individual who demanded and obtained a quantity of narcotic drugs. Defendant Clyde W. Ralph was charged with the offense and convicted by a jury of aggravated robbery. He appeals, alleging trial errors.
At trial the state first produced the two employees who were on duty at the time of the robbery. Each positively identified Ralph as the man who held up the store and made off with a sack full of narcotics. Each had picked him out from a display of photographs, and at least one of them had identified him in a line-up. No complaint is made of their testimony.
The state’s third and last witness, whose testimony gives rise to most of defendant’s complaints, was Detective Harley Puckett. The defendant had filed a notice of alibi, and among the witnesses he listed was his mother, Gladys Church. As part of his investigation Detective Puckett interviewed Mrs. Church, and he was permitted to testify as to his conversation with her:
“Q. During the conversation that you have just related to us, the time and the place, during that conversation, did you have any discussion concerning drugs?
“A. Yes, we did.
“Q. Would you relate that to us, please?
“Mr. O’Hara [defense counsel]: To which I object, if the Court please. This is a case concerning a robbery of a drug store. Incompetent and immaterial.
“Mr. Wall [prosecutor]: It goes to motive, your Honor.
“The Court: Objection overruled.
“Q. (By Mr. Wall) The Judge says you can answer. Would you answer that question?
“A. In our conversation that we had I was talking about Clyde’s problem stemming from drugs. We talked about how long he had been on drugs, which had been several years, and that he has been taking drugs .and that she was aware of this; in fact, at one time that he had more or less passed out and she had to go get him and help him.
“Q. All right. And did you talk .about his drug problem in August of 1973?
“A. Well, it was during this time, of course, prior to this, and at the present time.
“Q. All right. And did you discuss with her the amount of money that •he was paying to support this drug addiction?
“A. Yes. It was mentioned that he had a hundred to a hundred-fifty dollar a day habit.”
Defendant first contends that this evidence was inadmissible as hearsay. The contention is not sound. Mrs. Church had been subpoenaed by the state and was present in the courtroom. Under K. S. A. 60-460 (a) her prior statement was therefore admissible if she was “available for cross-examination” and if the statement would have been admissible if she had so testified. Defendant concedes as much, but says she was not “available” for cross-examination because she had a note from a doctor, apparently unverified, saying she shouldn’t testify. The trial court examined this note and found it insufficient. The note is not in the record before us, but even if it were we could not say the determination of insufficiency was erroneous. The trial court would have been justified in requiring sworn testimony to show that Mrs. Church, although present, was not “available” to testify. In fact, she did testify at the trial on behalf of the defendant. That fact alone would seem to show rather conclusively that she was available.
Several other contentions center around the substance of the testimony, i. e., that defendant was a drug addict with a hundred to a hundred-fifty dollar a day habit. As the prosecutor pointed out, the evidence was offered to show motive, the robbery being one in which only narcotics were taken and in which the cash drawer was untouched.
Defendant contends that his addiction was a “trait of character,” and that proof of such trait was inadmissible under K. S. A. 60-447 because he had not put his character in issue. He also contends that it amounted to a “crime or civil wrong” so that if it was admitted under K. S. A. 60-455 to show motive, a limiting instruction was required. Neither point is well taken. Drug addiction is not the type of “character” trait dealt with in 60-447. It cannot be shown to be “good” or “bad,” but is simply a medical fact. Likewise, it is not a crime or civil wrong.
A similar contention was succinctly answered in State,v. Guerrero, 243 Ore. 616, 415 P. 2d 28. There the defendant had been apprehended while attempting to burglarize a drugstore. Drug paraphernalia on his person was introduced at trial over his objection. He contended it was inadmissible as showing another crime, while the state said it showed motive. In agreeing with the state the Oregon Supreme Court said:
“The evidence did not suggest the commission of another crime. But it did degrade defendant as a probable narcotics user. To that extent the evidence was prejudicial. Nevertheless, it also established a compelling motive for defendant to attempt to enter a drug store. Accordingly, the evidence had real probative value and it was proper to have admitted it.” (p. 617.)
See also, Candelaria v. People, 177 Colo. 136, 493 P. 2d 355; State v. Taylor and State v. Chapman and State v. Abernethy, 8 N. C. App. 88, 173 S. E. 2d 633; Riley v. State, 168 Tex. Crim. 417, 328 S. W. 2d 306; People v. O’Brand, 92 C. A. 2d 752, 207 P. 2d 1083. The evidence was admissible, and no limiting instruction was required.
Defendant also complains of the introduction of evidence of his prior burglary oonvictions, in one of which he stole 19 cents and in the other $37.00. This evidence came from his own mouth, on direct examination, while testifying in his own behalf. Apparently its purpose was to minimize the seriousness of the prior offenses and, by demonstrating his candor, to lend credibility to his alibi defense in this case. He cannot predicate error on the admission of evidence he himself introduced. And, because it was not introduced by the state for any of the purposes listed in K. S. A. 60-455, a limiting instruction was not called for. State v. Greene, 214 Kan. 78, 82, 519 P. 2d 651.
The same rule forecloses his assertion of error in admitting evidence of plea bargaining, which included a reference to other charges pending against him. On direct examination defendant described a conversation with Detective Puckett; the cross-examination explored some of the details of that conversation. Such cross-examination was entirely proper, for as we said in State v. Pappan, 206 Kan. 195, 477 P. 2d 989:
“A defendant cannot avoid cross-examination on matters to which he has testified in chief. When a subject is opened on direct examination, the cross-examination, may develop and explore various phases of that subj'ect.” (Syl. f 1.)
See also, State v. Ralls, 213 Kan. 249, 515 P. 2d 1205. Not only was the cross-examination within the scope of the direct, but when the reference to the other charges was made defendant’s objection was sustained. There was no error.
Finally, we have examined defendant’s complaints about the prosecutor’s closing argument. No contemporaneous objection was made and there was no request for an admonition. See, State v. Ralls, supra. Further, the comments complained of were within the bounds of the evidence and were fair argument. An objection would have been unavailing.
The conviction is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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Per Curiam:
This is a direct appeal from defendant’s conviction of the crimes of robbery (K. S. A. 21-3426), aggravated burglary (K. S. A. 21-3716), and aggravated sodomy (K. S. A. 21-3506).
The events which culminated in the robbery charge grew out of an incident that allegedly occurred on September 20, 1973, involving a female employee of the Wichita Credit Bureau. She started to get into her car, placed her purse on the front seat, and was sitting with one leg still outside the car when a man approached her, attempted to put his hand between her legs, and tried to force it up under her skirt. She screamed. Defendant then forced the victim out of her car and knocked her to the ground. She got up and ran from her assailant. She testified at trial that after running a short distance she looked back and saw the man in her car “doing something.” She then saw the man get out of the car and run down an alley. When she returned to her car, her purse, containing one dollar and her payroll check, was gone. An employee in a nearby office heard the victim’s screams and then observed a man running down the alley. The defendant was arrested two blocks from the scene of the attack. He was carrying the victim’s purse which still contained one dollar and her payroll check. The defendant was identified by the employee as the man she observed running down the alley.
The events which culminated in the aggravated burglary and aggravated sodomy charges grew out of an incident that allegedly occurred on September 13, 1973, involving a twenty-one-year old female student at Friends University. She had been studying in her bedroom and had fallen asleep on her bed. She awoke to find a man standing over her with his hand over her mouth. The man attempted to forcibly engage in sexual intercourse with her. She dissuaded him from that, but he was able to forcibly engage in sodomy with her. At trial she testified the man told her he had gained entry to her apartment through a kitchen window. She identified the defendant as the intruder.
The defendant alleges two specifications of error: (1) Failure to separate the counts of the information for separate trials, and (2) failure of the court to sustain defendant’s motion to separate witnesses.
The conditions under which the joinder of offenses is permissible are delineated in K. S. A. 22-3202 (1). Defendant contends the trial corut erred in not ordering the robbery count to be severed from the counts charging aggravated sodomy and aggravated burglary. As the state points out, however, defendant made no objection to joinder nor motion for severance of the counts in the information, either prior to trial, during trial, or in his motion for a new trial. According to K. S. A. 22-3208 (3), objections to an information or indictment, other than that it fails to show jurisdiction or to charge a crime, may be raised only by motion before trial. Failure to so object constitutes a waiver of any such objection unless the court for cause shown grants relief from the waiver. Having failed to “show cause” for not raising the claim of misjoinder before trial, defendant has waived any objection to the joinder of offenses herein.
The trial court did not err in denying defendant’s motion for separation of the witnesses. Separation of witnesses at trial is a matter committed to the sound discretion of the court (State v. McVeigh, 213 Kan. 432, 516 P. 2d 918), and is subject to review only when there is abuse of discretion or manifest injustice. (Johnston v. United States, 260 F. 2d 345 [10th Cir. 1958].)
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This is a second appeal in the same case. In the first appeal, which was brought by defendants, this court determined the trial court had committed reversible error in refusing defendants’ timely request for a jury trial. (City of Osawatomie v. Slayman, 182 Kan. 770, 774, 323 P. 2d 910.) As a result of the subsequent jury trial, a verdict and judgment were entered for the city and defendants again appeal.
We shall briefly summarize an agreed statement of facts. The petition truly alleged incorporation of the city, and residence and post office address of defendants; that the city could legally prevent and remove obstructions in its alleys; the city had laid a ten inch sewer near the center of block eighty-nine from east to west; in August, 1956, defendants erected a building twenty feet long, north and south, and ten feet wide, east and west, on the south portion of lot ten, block eighty-nine; there was a space of nine feet and eight inches between the south wall eaves and heater vent of defendants’ building and lot eleven, and the building is still so located although the city notified defendants to remove it; so far as lots nine and ten, block eighty-nine are concerned, the original plat of the addition, which plat is still in full force, shows no alley was therein dedicated, nor has one since been dedicated.
The chain of title to lots nine and ten was stipulated to have been:
April, 1906 — Pringles to W. H. Campbell
February, 1907 — Campbells to Meyer
May, 1908 — Meyer to Belle Reynolds
August, 1914 — Reynolds to H. S. Carsten
July, 1924 — H. S. Carsten to Fred Carsten
September, 1935 — Fred Carsten to Loyd Craig
March, 1936 — Craig to H. G. Roethel
April, 1946 — Roethel to defendants.
The above grantors and the defendants paid all taxes due up to the time of the filing of this action.
The superintendent responsible for streets and alleys of the city testified a sewer main had been in the alley since 1909 and no one had questioned the city’s right to maintain it; telephone and gas lines also were in the alley and the city had cut weeds therein; defendants had asked the city governing body to close the alley in August, 1956, when they erected the building in question.
A paving contractor employee had lived in the city for fifty years and he testified that when Sixth street was paved, turn-ins were provided for the alley way.
H. G. Roethel, former owner of lots nine and ten, had assumed the lots were 150 feet deep; he thought there was an alley and had built a coal shed on the alley; coal trucks had to come down the alley to load his coal shed.
A former teamster and local contractor had owned lot eight and resided on lot ten for ten years prior to 1944 or 1945; the alley was used by the general public at that time; from about 1915 or 1916 he had driven his team up and down the alley and no one had tried to stop him; the alley had been open ever since; a fence had been along the south line of the alley for a good many years.
A feed and coal hauler who drove both a team and truck had used the alley; he testified that two or three times a day while driv ing a team he had used the alley, and when there was fresh paving on Pacific street he had used the alley; in later years the alley was used less because “you couldn’t get through”; for years there were fences along the alley which were set back.
The city clerk stated several ordinances had been adopted wherein reference was made to the “alley” in block eighty-nine; that on two occasions defendants had asked the city to close the alley; at a property owner’s request, a sewer line was laid in the alley.
The local manager for the Gas Service Company testified the company had a gas main in the alley although the company had no easement from any of the property owners; he assumed there was an alley.
A telephone company employee testified there was a telephone line in the alley; that between 1942 and 1957 he had on occasions driven a telephone company truck down the alley.
A city trash and garbage hauler had lived in Osawatomie for sixty-three years; in the early days he had driven a team through the alley many times; he had never asked permission to do so nor had anyone ever questioned his right so to do; he had gone down the alley while hauling trash and garbage for the city, but for about the last ten years the trash had been set out in front of the property and he had not been through the alley.
Another witness, a railroad employee since 1910, was familiar with block eighty-nine; he had always thought there was an alley there; in his former employment he had driven up and down the alley with a grocery wagon. A witness who had lived in Osawatomie approximately fifty-three years said he had driven an ice truck down the alley and that earlier as a school boy he had walked up and down the alley on the way to school.
The commissioner of streets and public utilities had seen traffic in the alley and had ridden in a wagon in the alley. He further corroborated evidence of defendants’ two requests to the city to close the alley. He recalled there had been a fence on the north and south sides of the alley.
The mayor corroborated the greater portion of the testimony of the foregoing witnesses and added that the railroad team track was at the west end of block eighty-nine and that the teamsters used the alley to get to those tracks.
Defendants’ first witness, Edgar Campbell, stated that Mr. Pringle, a former owner, had put a pole across the entrance of the alley and the city marshal had been sent to open up the entrance; the witness knew of the entrance to the property as a private drive although others called it an alley. The next defense witness, Hugh Campbell, who apparently was related to Edgar Campbell, testified as to the private drive feature and stated that anyone driving thereon did so as guests of the owners.
The remaining eight witnesses, including defendants, testified for the defense to the point that there was some sort of passageway but it was swampy, full of high weeds, cattails, and underbrush-like a forest. They said the passageway was impassable and they had not noticed trucks using it except the entranceway thereto.
Defendant John A. Slayman stated that he had moved the building in question on the basis of an abstractor s certificate that the Miami county commission had never vacated any part of lots nine and ten, block eighty-nine. After receiving notice from the city to remove the building, he had asked the governing body of the city to vacate the alley.
The trial court in substance instructed the jury that even though the re-survey of the city was defective, an alley may be established if the public acts upon the claim under the defective re-survey and uses the land as a public alley for more than fifteen years. The fact that defendants and their grantors had paid all taxes, while not a controlling circumstance, is one of the means by which ownership of realty is asserted. The payment of taxes will not prevent the public from claiming a portion thereof for a public purpose such as a street or alley.. A public way may be established by prescription by fifteen years’ adverse possession if during the time the public openly, notoriously, and adversely uses the land against the landowner’s will. Use by the owner’s permission will not ripen into adverse possession no matter how long used. If the jury determined that the public, for any fifteen year period, had openly, notoriously, and adversely used the strip of land for a public way, it would be an alley, which, when once established, would remain an alley whether maintained for traffic or not. The sewer, gas line, and telephone poles and lines in the strip of land would not establish an alley but might be considered as evidence as to whether the public used the strip as an alley. A public way is established by prescription when under a void proceeding the owner of the land recognizes the way described in the void proceeding and sets it aside for public use and the public accepts and uses it as such, and if landowners in block eighty-nine, following the void survey, did set back fences and buildings with the intention that the strip be used by the public for an alley, and the public did so use it, it became an alley and the jury should find for the plaintiff. Defendants were bound by any impairment of title as it existed at the time of their purchase and the city’s claim of an alley would be included therein. An alley may be established in different ways: by purchase; by dedication; or by condemnation; but this alley was not established by any one of these three ways.
No objections were made to these instructions. Defendants had requested some instructions but they were substantially included in the trial court’s instructions.
The jury returned a general verdict in favor of the city — that the alley existed and defendants should remove the building — and also answered special interrogatories: v
“1. Did the property owners on each side of the proposed alley in Block 89 build fences and buildings back sufficient distances to leave a traveled way of approximately 14 feet? A. Yes.
“2. If your answer to question number 1 is in the affirmative, were the fences and buildings so located with the intention that the space should be used as a public way? A. Yes.
“3. Did the public use this space as a public way? A. Yes.
“4. If used by the public, for what period of time was it so used? A. Yes.”
No objections were made by either party to the special questions or answers thereto.
The defendants had submitted five special questions but they were either improper or were included in those asked by the trial court. A trial court has wide discretion respecting special questions to be submitted to a jury and 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. (Reda v. Lowe, 185 Kan. 306, 314, 342 P. 2d 172.)
The trial court entered judgment on the jury’s verdict and ordered defendants to remove the building within thirty days from November 5, 1958.
Defendants’ motions for new trial and for judgment non obstante veredicto were overruled by the trial court, and they timely filed a notice of appeal from the judgment, from the orders overruling their motions for new trial and for judgment non obstante veredicto, and from trial errors.
Defendants’ first claim of error as to instructions will not be considered further because, as previously stated herein, defendants’ requested instructions were substantially included in the instructions given and no objections were made at the time they were given. (G. S. 1949, 60-2909, Fifth; Foley v. Crawford, 125 Kan. 252, 262, 263, 264 Pac. 59; Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692.)
The second claimed error is the trial court’s refusal to submit defendants’ requested special questions but this contention has already been answered above. See, also, Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 849, 850, 308 P. 2d 150.
The third claim of error is the trial court’s overruling of defendants’ motion for judgment non obstante veredicto. Under G. S. 1949, 60-3119, such a motion reaches only the pleadings and verdict; it does not raise questions as to the sufficiency of the evidence. (Ogilvie v. Mangels, 183 Kan. 733, 332 P. 2d 581; In re Estate of Rogers, 184 Kan. 24, 334 P. 2d 830.) In Reda v. Lowe, supra, p. 312, it was stated that a motion for judgment non obstante veredicto concedes the findings are supported by evidence, and later at page 313 of the same opinion, it was further stated that such a motion is not sustained by reason of some possible inconsistencies in 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. A comparison of the answers to special questions with the general verdict in our present case shows them to be in harmony with the verdict and with each other. Thus the trial court properly overruled this motion of defendants. In connection herewith, see also Grigsby v. Jenkins, 183 Kan. 594, 331 P. 2d 284.
The final claim of error was based on the trial court’s overruling of defendants’ motion for new trial. The granting of a new trial ordinarily rests in the sound discretion of the trial court. (Grace v. Martin, 182 Kan. 33, 318 P. 2d 1007; 2 West’s Kansas Digest, Appeal and Error, §977 (5); 1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, § 458.) Findings of fact by a jury, supported by evidence and approved by the trial court, as was the situation presented to us in this appeal, are conclusive (Jackson v. Hutton, 184 Kan. 171, 334 P. 2d 424) and cannot be disturbed.
Reference is here made to the former opinion in this case (City of Osawatomie v. Slayman, 182 Kan. 770, 323 P. 2d 910) and to the citations therein contained.
By way of summary, we hold that the trial court did not err in instructing the jury; in refusing to submit defendants’ requested special questions and in lieu thereof submitting special questions based on the issues raised in the evidence and the instructions; in overruling defendants’ motion for judgment non obstante veredicto and finally, in overruling defendants’ motion for new trial.
Judgment affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is another appeal involving the construction of G. S. 1949, 7-104 relative to the appearance in Kansas courts of lawyers from other states.
Rriefly, the record discloses that Mr. George C. Spradling, a regularly admitted and practicing lawyer of this state, with law offices in Wichita, Sedgwick county, prepared, signed and filed before the district court of Seward county a petition on behalf of plaintiff, associating with him as attorneys for plaintiff certain Oklahoma lawyers. Not only did Mr. Spradling personally sign the petition, but he also, alone, signed the praecipes for summons. Subsequently, defendant filed its motion to strike the petition on the ground there had been no compliance with section 7-104. From an order of the trial court overruling the motion, defendant appeals.
Mr. Spradling, as a regularly practicing member of the bar of this state, needed no associate counsel, either foreign or local, to enable him to file a lawsuit in Seward county on behalf of his client. G. S. 1949, 7-104 has no application to such a member when filing a petition on behalf of a client in any of the courts of this state, and the fact that Mr. Spradling did associate foreign counsel with himself does not alter the situation.
No useful purpose would be served by prolonging the discussion in this case. Suffice it to say that the same questions were presented and considered in our recent case of Slayman v. Steinhoff, 185 Kan. 88, 340 P. 2d 98, and what was said there is sufficient to affirm the judgment of the trial court in this case. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for specific performance of a written contract entered into between M. A. and Beatrice B. Zelinkoff, plaintiffs (appellees), and William C. and Ethel C. Johnson, defendants (appellants).
The pertinent facts may be summarized as follows: On May 24, 1956, plaintiffs and defendants formed a closely held corporation under the name of the Crown Chemical Corporation, Inc., the common stock of which was issued one-half to plaintiffs and one-half to defendants. At the time of forming the corporation and as a part of the same transaction, the parties entered into a written agreement governing the investment each was making in the corporation and the issuance of stock to the incorporators, and providing for certain restrictions, rights and obligations relative to the subsequent sale and purchase of the corporate stock as issued to them. The controversy is over the interpretation of paragraph 8 of the written agreement.
Subparagraph (e) thereof provided that Johnson should have the right to exercise, between January 1, 1959, and January 1, 1961, an option to purchase ZelinkofFs corporate stock by notifying him in writing of his desire to do so, the purchase price to be determined by the book value of the stock at the time of notification and the stock to be paid for within a period of sixty days after the date of the notice of exercising said option.
Subparagraph (/) provided that upon the death of either Zelinkoff or Johnson outside the option period noted, the survivor should have the option to purchase all shares of the corporate stock owned by decedent by serving written notice on the legal representative of decedent’s estate.
Subparagraph (g) provided that the unissued capital stock, if any, should not be sold prior to the time Johnson had the privilege of exercising his option to purchase the Zelinkoff interest as provided in subparagraph (e) above mentioned, unless the parties should mutually agree to issue such unissued capital stock as a bonus, or sell the same. In the latter event, the sale was to be made only to a Zelinkoff or to a Johnson.
Subparagraph (h) provided as follows:
“Zelinkoff and Johnson agree that as long as a Zelinkoff or a Johnson is a stockholder of this corporation no interest of either Zelinkoff or Johnson in said corporation of stock issued or to be issued, shall be sold or transferred to-anyone outside the Zelinkoff or Johnson family. Family in this instance being defined as husband, wife, child or children of said Zelinkoff or Johnson.
“In the event of a sale by a Zelinkoff or a Johnson, as the case may be, other than as provided for in paragraphs (e), (f), and (g), of their respective interest, the Zelinkoff or Johnson, as the case may be, shall serve written notice on the other of their desire to sell, and the purchaser, Zelinkoff or Johnson, as the case may be, shall have a minimum of sixty (60) days from the date of determination of said value, to pay therefor, the price thereof, which price shall be the book value of said stock at the date of notification, said book value to be determined according to accepted accounting practices.”
Early in December of the same year, dissension arose between plaintiffs and defendants. Zelinkoff advised Johnson that he, Johnson, would have to buy or he, Zelinkoff, would buy, inasmuch as they “were at loggerhead with the business and . . . had to resolve it one way or another.” Johnson said he would think about it. On December 28, the Zelinkoffs, having heard nothing further from Johnson, attempted to exercise their rights under paragraph 8 (h) and sent to defendants the following letter, which reads in pertinent part:
“Pursuant to our Agreement, dated May 24, 1956, . >. . we, M. A. Zelinkoff and Beatrice B. Zelinkoff, desire to and do exercise our right to sell to you, as provided for in paragraph (h) of the Agreement, dated May 24, 1956, our ninety-five shares of the common stock of The Crown Chemical Corporation, Inc., the price for which and the payment thereof by you to be made as provided for in this paragraph.”
Some two weeks thereafter and on January 16, 1957, defendants, through their counsel, in an attempt to exercise their rights under paragraph 8 (h) of the agreement, sent a letter to the plaintiffs, which reads in pertinent part:
“Reference is made to the Agreement made and entered into on the 24tb day of May, 1956, .by and between M. A. Zelinkoff and Beatrice B. Zelinkoff, his wife, and William C. Johnson and Ethel C. Johnson, his wife, . . .. Reference is also made to your letter of December 28, 1956, addressed to Mr.. William C. Johnson and Mrs. Ethel C. Johnson, which was sent by registered mail, return receipt requested.
“We represent Mr. and Mrs. Johnson and we are enclosing herewith a notification signed by William C. Johnson and Ethel C. Johnson notifying you in writing of their desire to sell all of the stock held by them in the Crown Chemical Corporation, Inc., Wichita, Kansas. In the event you desire to purchase said stock, they shall expect you to do so in accordance with the term's of said Agreement.
“On behalf of our clients, Mr. and Mrs. Johnson, we want it clearly understood that Mr. and Mrs. Johnson deny that according to the terms of the-Agreement that they have any obligation whatsoever to purchase your stock, and that they do not desire to purchase the same. If you meant to imply that the Johnsons were under obligation to purchase your stock by your letter of December 28, 1956, then we believe you are attempting to read something in-, the Agreement which does not appear here.”
On March 25, the plaintiffs brought this action against the defendants, seeking to recover the value of their stock on the theory that in view of their election to sell their stock to defendants, as. evidenced by their letter of December 28, 1956, there was a mandatory obligation on defendants’ part under paragraph 8 (h) to buy.. Defendants answered, contending that paragraph 8 (h) contained no such mandate and that it provided only for a sixty-day option-to buy; that they did not so elect and they should recover the costs-of litigation.
1 On the issues thus joined, the question of the intent of the parties and the meaning of paragraph 8 of the contract was submitted to the trial court. The court found generally in favor of plaintiffs and entered judgment accordingly. In doing so, it is apparent the court, in interpreting the contract, found that paragraph 8 (h) imposed upon the defendants the obligation to buy plaintiffs’’ stock. From the judgment as entered; defendants appeal.
Plaintiffs first move to dismiss this appeal on the ground that defendants have acquiesced in the judgment of the lower court. We have examined the record and find no merit to this contention. No further comment is necessary.
We cannot bring ourselves to concur with the interpretation placed upon the instrument by the trial court. We have before us the same question as did the lower court and the one upon which it based its decision; i. e., the one concerning the contractual obligations turning upon the intention of the parties as indicated by the language employed in the contract in question. We must therefore, as did the trial court, look to the instrument itself. (Gardner v. Spurlock, 184 Kan. 765, 769, 339 P. 2d 65; Drilling, Inc. v. Warren, 185 Kan. 29, 34, 340 P. 2d 919.)
The general rule in the interpretation of contracts is to ascertain the intent of the parties and to give effect to that intention if it can be done consistent with legal principles. This court has often held that the intent and purpose of the written instrument are to be determined by consideration of all pertinent provisions and not by a critical analysis of a single isolated provision. (Drilling, Inc. v. Warren, supra.) Where a court is called upon to construe a written instrument, reasonable rather than unreasonable interpretations are favored by the law, and results which vitiate the purpose or reduce its terms to absurdity should be avoided. (Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731.) It is not the function of courts to make contracts for the parties but to enforce them as made. (Gardner v. Spurlock, supra.)
, The language of the instrument seems clear. Subparagraph (e) provides that Johnson shall have an option to purchase Zelinkoff’s stock, within a specified time. Subparagraph (/) provides that under certain conditions either Zelinkoff or Johnson shall have an option to purchase the other’s stock. Subparagraph (g) again provides for an option to purchase under certain conditions. Subparagraph (h) does not use the word “option,” but does say that in the event of sale of his interest by either a Zelinkoff or a Johnson, as the case may be, other than as provided in subparagraphs (e), (/) and (g), Zelinkoff or Johnson shall serve on the other written notice of his desire to sell and the purchaser shall have a minimum of sixty days from the date of determination of the value to pay therefor. Consistency requires that subparagraphs (<?), (/), (g) and (h) all contemplate that either party shall have an option but not an obligation to purchase.
It is obvious, when considering the contract as a whole, which we 'must do,- that under subparagraph (h) the parties contemplate an option and not an obligation. There is no language in subparagraph '(h) showing that any one stockholder agrees to buy or must buy when the other gives notice of his desire to sell. What it does say, in fact, is that if one of the parties desires to sell, the other party shall have a minimum of sixty days to determine whether he wishes to exercise his option to buy at the price determined under the contract. In other words, notice of desire to sell serves the function of ■setting the price at which the other party may buy.
. In the instant case, both plaintiffs and defendants under sub-paragraph (h) served on each other notice of their intention to sell. It would be an absurdity if we were to hold subparagraph (h) imposed upon defendants an obligation to buy, inasmuch as defendants also served upon plaintiffs a written notice of their intention to sell. Such a holding would result in a stalemate and would make the provision meaningless. The question would then be — who is selling to whom? and who shall buy from whom? In the absence of express language in subparagraph (h) creating an obligation on the part of the defendants to purchase the stock, this court cannot supply language creating such an obligation. If we did so we would be making a new contract for the parties, and this we cannot do.
■ In view of what has been said, the judgment of the trial court is reversed and the case is remanded with instructions to enter judgment for the defendants.
It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Tommy Allen McKay, was charged with murder in the second degree. He was convicted of voluntary manslaughter and has appealed. The facts surrounding the incident giving rise to the charge are of slight importance to the issues raised on appeal, and need but brief mention.
It is sufficient to say that Mr. McKay was invited to attend a drinking party in progress at the clubhouse of a motorcycle group. He accepted the invitation and joined in the revelry. Considerable liquid refreshment of an alcoholic nature was quaffed during the evening and early morning hours. Eventually a fatal incident took place — an occurrence in which the defendant shot and killed another man.
McKay was tried twice on the murder charge. At the conclusion of the first trial the jurors were unable to agree on a verdict. The trial court thereupon excused the jury and declared a mistrial under the authority contained in K. S. A. 22-3423 (Weeks 1974). This statute provides in pertinent part:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
“(d) The jury is unable to agree upon a verdict; . . .”
It thereafter became known that the jurors, when discharged, stood nine for conviction of voluntary manslaughter and three for involuntary manslaughter, the trial court having instructed that both of those crimes were lesser offenses of second-degree murder. Affidavits obtained from six of the jurors recited that during the deliberations the jurors “determined that the defendant was not guilty of murder in the second degree.” Based on this intelligence, the defendant filed a pretrial motion for a judgment of acquittal as to second-degree murder. This motion was overruled.
A second trial was had on the charge as it originally stood, i. e., second-degree murder. This time the defendant was convicted of voluntary manslaughter. Hence this appeal. His primary claim of error is that he was placed in double jeopardy. The thrust of his argument is simply this: The jury having stood nine for conviction of voluntary manslaughter against three for involuntary manslaughter, and six of the jurors having sworn that the jury determined the defendant was not guilty of second-degree murder, he could not again be placed on trial for second-degree murder.
Mr. McKay has small cause to complain of prejudicial error in this respect. He was not, at his first trial, convicted of a lesser offense, nor was he, at his second trial, convicted of the greater offense. He was, in fact, convicted of no offense whatever on the first go- round, and of manslaughter only on the second. The facts here do not bring the case within the ambit of the decisions reached in Green v. United States, 355 U. S. 184, 2 L. Ed. 2d 199, 78 S. Ct. 221, or of Benton v. Maryland, 395 U. S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056, where the jeopardy clause of the federal constitution was held to prohibit a second prosecution of the greater offense after a conviction of a lesser included offense had been reversed.
K. S. A. 21-3108 (Weeks 1974) seeks to codify, in effect, the rules relating to double jeopardy. So far as material to the present case the statute provides that a prosecution is barred if the defendant was formerly prosecuted for the same crime on the same facts if the former prosecution was terminated without the consent of the defendant after he was placed in jeopardy, except where the termination occurred because it was impossible for the jury to agree on a verdict. The exception is applicable here. The trial court found the jury was hopelessly deadlocked in the first trial and the record clearly supports that finding. Consequently, a mistrial was declared and the jury was discharged, leaving the defendant unconvicted at that particular time of any charge, great or small.
In the Judicial Council notes which accompany K. S. A. 22-3423, the following comment is found:
“. . . A properly ordered mistrial does not prevent a subsequent trial on the same charge, even though the order is made,after the defendant has been placed in jeopardy.”
Decisions of this court fully sustain the view expressed by the Council. In State v. Blockyou, 195 Kan. 405, 407 P. 2d 519, we said:
“. . . The existence of inability [of the jury] to agree nullifies any seeming jeopardy, and when the trial court concurs in and affirms the jury’s conclusion that it is unable to agree the finding is absolute and conclusive in the absence of abuse of discretion. (Citing cases.)” (p. 408.)
See, also, State v. Finley, 208 Kan. 49, 52, 490 P. 2d 630, wherein the Blockyou decision is cited.
Under facts substantially the same as those before us, the California Court of Appeals, in People v. Doolittle, 23 Cal. App. 3d 14, 99 Cal. Rptr. 810, rejected defendant’s contention of double jeopardy where, on a second trial, he was convicted of voluntary manslaughter as a lesser offense of-first-degree murder. In that case, the foreman of the first jury testified that the jurors voted unanimously that defendant was not guilty of first-degree murder. In an opinion upholding the manslaughter conviction, the California appellate court said:
. . [W]e apprehend that in the trial of an offense which necessarily includes a lesser offense, as was the case here, the jury, before they can return a verdict, must, on the one hand, agree that the defendant is guilty of the offense charged or any included offense or, on the other hand, agree that he is not guilty of any offense, whether the greater or the lesser. We are of the opinion that although the law contemplates the conviction of an accused of a lesser offense when the evidence is insufficient to justify conviction for the greater offense charged (citing cases), an acquittal of the greater charge does not result because the jury may have deemed the evidence insufficient to support that charge unless the jury agrees that he is guilty of a lesser included offense or agrees that he is not guilty of the crime charged, which finding includes a determination that he is not guilty of any included offense.” (pp. 19, 20.)
We conclude that the defendant’s claim of double jeopardy is unfounded.
The defendant further complains that the trial court took judicial notice of a Wichita ordinance making it unlawful for persons other than police officers to carry loaded firearms within the limits of the city. This contention is insubstantial. K. S. A. 60-409 (b) provides that judicial notice may b$ taken of a duly enacted ordinance of a governmental subdivision without request by a party.
Other points raised by the defendant have been noted and are found to be without merit.
The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Quay Douglas Worth, was tried by a jury and convicted of the sale of cocaine. The defendant admitted the sale but asserted the defense of entrapment. The facts in the case were not greatly in dispute and are essentially as follows: The defendant Worth became acquainted with Kent Green in 1971 while they were serving sentences in the Kansas State Penitentiary. Both men were released in 1972. In early July of 1973 Green became an undercover agent for the Kansas Bureau of Investigation and the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department. On July 18, 1973, defendant telephoned Green at his home in Bums, Kansas. Green was not in so the defendant left a message for him to call back. Green returned the defendant’s call on July 19. It was agreed that they would meet on the following day near a liquor store in Wichita. The defendant and Green met at the designated rendezvous on July 20 and then proceeded to the defendant’s mobile home. The defendant told Green that he was unemployed and hard pressed for money. There is a conflict in the testimony as to the conversation between defendant and Green. Green testified the defendant told him how desperate he was for money, that he had a pistol and would not hesitate to use it. Green then told defendant that he did have buyers for various items. The defendant’s version was somewhat different. He testified that Green told him that he was in trouble, that they could make some money if defendant could get a few things and that Green needed 50 sticks of dynamite, a couple of sawed-off shotguns and some cocaine. A clear-cut issue of fact was presented as to who was the moving force behind the criminal activities which followed.
On July 22 or 23 the defendant notified Green that he had two shotguns and two bombs for sale for $100. A meeting was set for July 26 at which time the items were to be delivered. Green immediately advised Carl Arbogast of the K. B. I. and Michael Gammage of the Bureau of Alcohol, Tobacco and Firearms. On July 26 Green and Gammage met with the defendant with Gammage posing as the buyer of the items. At this time defendant produced only one shotgun which was sold to Gammage for $100.00. On July 31 another meeting was held at which time the defendant sold Gammage some dynamite and % ounce of cocaine. Shortly thereafter defendant Worth was arrested and charged by the federal authorities as well as by the state in this case. The defendant was convicted in United States District Court on a four-count indictment charging unlawful possession of a firearm, unlawful transfer of a firearm, unlawfully making a false statement in connection with the purchase of explosives, and unlawfully receiving an explosive which had been transported in interstate commerce. The state of Kansas charged defendant in this case with the sale of cocaine arising out of the same incident. Prior to trial the defendant moved for dismissal of the charges on the basis of former jeopardy. This motion was denied. The defendant’s first trial in this case ended in a hung jury. The second trial produced the conviction which is now on appeal.
The defendant’s first point is that the trial court’s instruction covering the defense of entrapment did not correctly state the law. The instruction given quoted K. S. A. 21-3210 verbatim. The defendant’s objection goes to the form of the instruction. He contends that an instruction should have been given in a form similar to that approved in State v. Wheat, 205 Kan. 439, 469 P. 2d 338 and that the instruction should not have been in the exact language of the statute. The record discloses that before the jury was instructed the defendant objected generally to the entrapment instruction but did not state the specific grounds for his objection. K. S. A. 22-3414 (3) provides that no party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Here the trial court might well have given an instruction similar to that given in State v. Wheat, supra. We cannot say, however, that the instruction on entrapment as given in the language of the statute was clearly erroneous. The defendant was afforded a full opportunity to present his defense of entrapment to the jury. Since the instruction given was not clearly erroneous it cannot be made the basis of error on this appeal.
The defendant next maintains that the trial court erred in striking and withholding from the jury’s consideration the prior testimony of Kent Green which was given at the first trial. The defendant offered this testimony for the purpose of impeaching the testimony of Green. Defendant contends that there were material differences in Green’s testimony as given at the first and second trial which raised questions as to Green’s credibility. At the trial the court permitted the court reporter to read to the jury about 40 pages of Green’s prior testimony. At this point the state objected that there were no material differences in Green’s prior and present testimony. The court heard arguments of counsel outside the jury’s presence and, finding no inconsistencies between the prior testimony and the testimony given at the trial, sustained the state’s objection, struck the testimony which had been read to the jury, and instructed the jury to disregard it. It is, of course, well settled that the admission of prior inconsistent statements of a witness made on a former trial is proper to impeach the credibility'of the witness. The problem presented here is to determine whether there was a real inconsistency between the testimony of Green at the first trial and his testimony at the second trial. In Hancock v. Bevins, 135 Kan. 195, 9 P. 2d 634, we held that in order for earlier statements of a witness to be proper and effective materials for impeachment of the witness, such former statements must in some way be contradictory of or inconsistent with the statements made by him on the witness stand. The purpose of admitting the prior testimony is to induce the trier of fact to discard the one statement because the witness has also made another statement which cannot at the 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.) We have carefully compared Greens testimony at the first trial with his testimony at the second trial. We have concluded that tire former testimony of Green was not in any real sense contradictory or inconsistent with the statements made by him on the witness stand at the second trial. Hence, we find that the trial court did not err in striking Green’s prior testimony and instructing the jury to disregard it.
The defendant’s third point on this appeal is that the prosecutor was guilty of misconduct in his closing argument before the jury. As pointed out above the defendant did not deny making the sale but relied on the defense of entrapment. It therefore became extremely important for the state to show that the defendant had previously been involved in the drug traffic in order to refute the defense of entrapment. The state called as a witness, Carl Arbogast, the special agent for the K. B. I. On cross-examination he testified regarding his sources of information about the defendant. On redirect examination he testified that he had obtained information from various informants, the police department, the sheriff’s office in Tulsa, Oklahoma, and Wichita, and the Federal Bureau of Investigation. He further stated that the defendant had associated with convicted felons and drug traffickers and himself was suspected of drug trafficking. The defendant did not object to this testimony. In the prosecutor’s closing argument he referred to the testimony of Agent Arbogast stating that the defendant and his associates were suspects in trafficking of drugs and contraband “in and out of this country and state.” Counsel objected to the last remark stating that there was no evidence to justify the statement that the defendant had trafficked in drugs and contraband in and out of the country. The trial court ordered the statement stricken from the record and instructed the jury to disregard it. It is true that the prosecutor went beyond the evidence in referring to the defendant as a suspect in the trafficking of drugs in and out of the country. However, on the record before us we cannot say that the trial court erred in denying the defendant’s motion for a new trial for this reason. In State v. Warbritton, 215 Kan. 534, 527 P. 2d 1050, it was held that improper remarks made by the prosecuting attorney in his summation to the jury will not provide a basis for reversal where the jury has been instructed to disregard the same, unless the remarks were so prejudicial as to be incurable. Here the defendant did not object to the testimony of Carl Arbogast in regard to the defendant’s prior drug activities. Furthermore the defendant did not object to the prosecutor’s reference to defendant’s prior activities but only to the reference to activities in and out of the country. As soon as the objection was made the court sustained it forthwith, struck the statement complained of, and advised the jury to disregard it. The defendant did not move for a mistrial at that time. The issue was raised only on motion for a new trial and the trial court after considering the matter found no prejudice and denied the motion for a new trial. As we stated in State v. Murrell, 215 Kan. 10, 523 P. 2d 348, the trial judge is in a far better position to assess the impact of the prosecutor’s conduct on the jury than are the members of this court who must consider the question on a cold, printed record. We cannot say that the trial court abused its discretion in refusing to grant a new trial.
The defendant next complains that the cross-examination of the defendant by the prosecutor was improper, prejudicial, and denied the defendant a fair trial. The defendant complains of two instances where the defendant objected to the prosecutor’s questions and the objections were sustained by the court. It is clear that the trial court found the prosecuting attorney’s questions would have elicited irrelevant answers and sustained the defendant’s objection for that reason. No answers were made by the defendant to the objected questions. Under the circumstances we cannot say that the defendant’s rights were prejudiced.
The defendant’s fifth point on the appeal is that the trial court erred in failing to dismiss the action because the defendant had previously been tried and convicted in federal court of offenses arising out of the same transaction and was therefore placed in double jeopardy. It was undisputed that the defendant had pre viously been tried before a federal jury and convicted in United State District Court on a four-count indictment charging the following offenses:
(1) unlawful possession of a firearm;
(2) unlawful transfer of a firearm;
(3) unlawfully making a false statement in the purchase of explosives; and
(4) unlawfully receiving an explosive which had been transported in interstate commerce.
It is important to note that the defendant was not charged in the federal prosecution with the sale of cocaine or anything else. In our judgment the trial court correctly denied the motion and defendant’s claim of former jeopardy. The situation presented is controlled by K. S. A. 21-3108 (3) (a) which provides in pertinent part as follows:
“21-3108. Effect of former prosecution.
“(3) A prosecution is barred if the defendant was formerly prosecuted in a district court of the United States . . ., if such former prosecution:
“(a) Resulted in either a conviction or an acquittal, and the subsequent prosecution is for the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, . . .”
We have no hesitancy in holding that the prosecution by the state in this case was not barred because of the former prosecution in the United States District Court. In State v. Truitt, 216 Kan. 103, 531 P. 2d 860, we stated that identity of offenses is universally declared to be an indispensable ingredient of jeopardy. Where one statute describing an offense requires proof of a fact which another statute does not, then the offenses are not the same, and a conviction or acquittal under one does not bar prosecution under the other on the ground of double jeopardy. Here the defendant had previously been tried and convicted in federal court of federal crimes involving firearms and explosives, not drugs. Furthermore the defendant was not charged in federal court with the sale of firearms or explosives. In this state prosecution the defendant was charged with the sale of drugs. The state prosecution for the sale of cocaine required proof of a sale not required under the federal charges. Under the circumstances the trial court was correct in overruling the defendant’s claim of former jeopardy.
The defendant next maintains that he was prejudiced by the erroneous reference in the information to the sale of cocaine as a Class E felony. Actually the offense is a Class C felony. Following conviction the defendant was sentenced to imprisonment for not less than one year nor more than five years for a Class E felony. Thirteen days later the state moved the trial court, pursuant to K. S. A. 22-3504 (1), to correct the illegal sentence and to sentence the defendant for a Class C felony. The motion was granted and the defendant was resentenced to imprisonment for not less than three years nor more than twenty years for a Class C felony. On this appeal the defendant claims that he should have been granted a new trial because of the erroneous reference to the class of felony in the information. The defendant’s point in essence is that had he known the felony was a Class C felony he might have attempted to plea bargain and not run the risk of a jury trial. We find the point to be without merit. In the first place the reference in the information to the sale of cocaine as a Class E felony was merely surplusage. The defendant has not demonstrated that his right to a fair trial was in any way prejudiced by the erroneous reference. He did not enter a plea of guilty in reliance on a mistaken assumption as to the class of crime he was charged with. The first sentence imposed was illegal and therefore was subject to correction at any time. (K. S. A. 22-3504 [1].) The fact that the legal sentence later imposed was more severe than the illegal sentence first imposed does not require the granting of a new trial. (Bozza v. United States, 330 U. S. 160, 91 L. Ed. 818, 67 S. Ct.645.)
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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Per Curiam.
Affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant was convicted of aggravated robbery under the provisions of K. S. A. 1972 Supp. 21-3427. The charge arose as the result of an armed robbery of the K. U. Medical Center Pharmacy in Wyandotte county on April 11, 1973. The robbers were two unmasked young men armed with guns who forcibly compelled the pharmacist on duty to turn over to them a quantity of narcotics. Within a week after the robbery the Johnson county sheriff’s office received information as to the location of the stolen drugs. A search warrant was obtained for defendant’s residence. On execution of the search warrant drugs identified as those taken in the robbery were found in the possession of the defendant. Following his conviction after a jury trial the defendant-appellant, Jon Richard Deffenbaugh, has appealed to this court claiming trial errors.
The defendant’s first point on this appeal is that the trial court erred in overruling the defendant’s motion to suppress evidence consisting of a box containing narcotic drugs obtained in the search conducted at the defendant’s place of residence on April 18, 1973. This is the identical point raised in State v. Deffenbaugh, 216 Kan. 593, 533 P. 2d 1328 where we held the same evidence admissible in a criminal proceeding filed in Johnson county charging defendant with the unlawful possession of the same drugs. The factual circumstances concerning the sources of information of the police authorities in regard to the location of the drugs and the issuance and execution of the search warrant are set forth in full in that opinion. In the Johnson county case the defendant’s objection to the evidence was that the information obtained by the police and provided the magistrate as a basis for the search was the product of an illegal search of the defendant’s motor vehicle and his person at the police station and as a result thereof the search warrant and the evidence obtained thereby were tainted by the “fruit of the poisonous tree doctrine” and therefore the evidence obtained on execution of the search warrant on April 18 should have been suppressed. We do not deem it necessary to review in detail here the factual circumstances and the reasons for our decision in the prior action. We have considered the additional authorities cited by counsel at oral argument in this case and have concluded that they do not justify any change from our prior determination of the issues presented. We, therefore, reject the defendant’s first point of claimed error for the reasons fully set forth in our opinion in State v. Deffenbaugh, supra.
The defendant’s second and fourth points on this appeal relate to the identification of the defendant by the pharmacist who was robbed at gunpoint at the K. U. Medical Center, The defendant moved to suppress the pharmacist’s testimony which identified the defendant at a police lineup and again in the courtroom at the trial of the case. The factual circumstances surrounding the identification are undisputed and are essentially as follows: Following the search of the defendant’s residence and the discovery of the drugs in his possession on April 18, 1973, he was arrested and taken to the Johnson county courthouse. The pharmacist, Jeff Menzie, was called to the courthouse to view a lineup of possible suspects who might be involved in the medical center robbery. Menzie testified that he entered the Johnson county courthouse, got off the elevator, and immediately observed in the crowd an individual who was involved in the robbery. He immediately informed a police officer he had seen the man who committed the robbery and identified the defendant as the one who did it. Menzie further testified that regard to a witness whose credibility was genuinely in doubt, the provisions of K. S. A. 60-422, an adjudication of delinquency distinguished him from the four or five other individuals who were in the hall at the time. Following this encounter a lineup was conducted by the police. There Menzie again identified the defendant Deffenbaugh as the robber. At the trial Menzie positively identified the defendant in the courtroom. The evidence showed that Menzie had ample opportunity to view the perpetrator of the crime at the scene. The room was extremely well lighted, neither of the robbers wore a mask. The defendant faced Menzie for a period of approximately 30 seconds during which time defendant made no effort whatsoever to conceal his identity. Menzie had no hesitancy at all in identifying the defendant as one of the persons who had robbed ■the pharmacy.
Prior to trial the defendant filed a motion to suppress the identification by Menzie claiming in substance that the conduct of the police in allowing the defendant to be observed and identified by Menzie prior to the lineup was a violation of the defendant’s rights under the federal and state constitutions. We are, of course, concerned in any case where a question is raised that the identification of the accused was unnecessarily suggestive and conducive to an irreparable mistaken identification. Such a procedure constitutes a denial of due process of law. (Neil v. Biggers, 409 U. S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375.) In Neil the Supreme Court of the United States held that whether an accused’s pretrial confrontation by an eyewitness to a crime is so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is denied due process of law must be determined from the totality of the circumstances. In the opinion in Neil the court stated that the factors to be considered in evaluating the likelihood of misidentificaltion include the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. When we apply these factors to the totality of circumstances in the present case it is our judgment that the identification of the defendant as the robber by Menzie was admissible. The witness had ample opportunity to view the robbers, neither of whom wore masks or made any attempt to conceal their faces. The witness’s attention was directed toward the defendant for a full 30 seconds and the lighting in the pharmacy was very good. The identification of the defendant as the robber by Menzie as he entered the hall of the courthouse was spontaneous. Menzie had no hesitancy whatsoever in identifying the defendant. The positive identification by Menzie was made within a period of a week after the robbery occurred. In regard to the confrontation between Menzie and defendant in the hall of the courthouse prior to the lineup the evidence is undisputed that it occurred through mere chance or accident. In State v. Kearns, 211 Kan. 158, 505 P. 2d 676, we held that the fact a witness may have inadvertently observed the defendant at 'the police station within a few hours of his arrest does not render inadmissible an independent in-court identification based primarily on the witness’s observations at the scene of the crime. On the record before us it is clear to us that the trial court did not err in overruling the defendant’s motion to suppress the identification testimony of the witness Jeff Menzie.
The defendant next maintains that the court erred in admitting exhibits 1 through 6 into evidence over his objection. Exhibits 2, 3, and 4 consisted of the blue box and the narcotics taken from the defendant’s residence when the search warrant was executed. Exhibit 1 was an inventory of items taken from 'the pharmacy. Exhibits 5 and 6 pertained to the persons who were in the lineup and the record of the lineup as it occurred. Each of the exhibits was identified and supported by the oral testimony of witnesses. They were relevant and we cannot say that the trial court erred in refusing to exclude them.
The defendant’s final point is that the trial court erred in refusing to permit defense counsel to examine the juvenile records of Kirk Hiatt, a prosecution witness. Kirk Hiatt was a participant in the robbery but remained in the getaway car and was not present in the pharmacy at the time of the actual holdup. Kirk Hiatt was also the informant who provided the information to the police authorities which resulted in the search of the defendant’s residence where the narcotics were discovered. Kirk Hiatt testified as a witness for the state against the defendant at the trial. At a pretrial hearing the defendant sought to examine Hiatt’s juvenile records for the purpose of impeaching his credibility and to show police threats to obtain information from him. In our recent case of State v. Wilkins, 215 Kan. 145, 523 P. 2d 728, we held that this state’s policy interest in protecting the confidentiality of a juvenile offender’s record as expressed in K. S. A. 38-801, et seq., must yield to the right of effective cross-examination to test the credibility of a witness by reason of Section 10, Bill of Rights, Constitution of the State of Kansas and the Sixth Amendment to the Constitution of the United States. We held that the constitutional right of confrontation of witnesses means more than being allowed to confront the witness physically for it includes the right of effective cross-examination where the credibility of a witness can be subjected to exploration to examine the weight to be given to his testimony. To the same effect is Davis v. Alaska, 415 U. S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105. In our judgment the trial court was in error in denying to defendant the right to examine the juvenile records of the witness Kirk Hiatt. On the basis of the entire record, however, we find that such action by the trial court did not constitute prejudicial error in this case. As pointed out above Kirk Hiatt testified as a witness for the state at the trial. In the course of his testimony he admitted that he was a drug user and a drug seller. He admitted that he was an active participant in the robbery of the K. U. Medical Center and that he had been granted immunity from prosecution by the state. It was brought out in the course of the trial that Hiatt had been a paid informant of the Johnson county law enforcement authorities. Suffice it to say Hiatts involvement in criminal activities and a possible motive to testify falsely to save his skin was fully brought home to the jury. Furthermore the evidence of the defendants guilt was overwhelming. The narcotics which were taken in the course of the robbery of the K. U. Medical Center were found in the defendants possession within a week after the robbery occurred. No evidence was offered by the defense to explain how defendant may have acquired them. The victim of the robbery, Jeff Menzie, made a positive unwavering identification of the defendant.
We cannot accept the argument of the state that juvenile records, even if discoverable, would be inadmissible since they do not constitute convictions of crime but rather adjudications of delinquency. In support of this position the state relies on Paige v. Gaffney, 207 Kan. 170, 483 P. 2d 494, where we held that an adjudication of delinquency in juvenile court does not constitute a felony for purposes of invoking the habitual criminal act. The decision in Paige has no application where a defendant in a criminal case seeks to impeach the credibility of a witness. In that situation the purpose of introducing evidence of prior adjudications of delinquency amounting to a felony is not to punish the witness for having a juvenile record but is to guarantee the defendant’s right of confrontation. If such evidence were not permitted, a person charged with crime could conceivably have no method of impeachment with regard to a witness whose credibility was genuinely in doubt. Since specific instances of a witness’s misconduct are inadmissible for the purpose of attacking the credibility of a witness under the provisions of K. S. A. 60-422, an adjudication of delinquency in the juvenile court might well be the only tool available for impeaching the credibility of a witness. We hold that adjudications of delinquency in juvenile court involving dishonesty or false statement constitute convictions of crime within the meaning of K. S. A. 60-421 and are admissible for the purpose of impeaching the credibility of a witness. The same guidelines as to what constitutes “dishonesty” applicable to felonies under K. S. A. 60-421 should be followed with regard to juvenile records. Under all of these circumstances it is our judgment that the refusal of the trial court to permit defense counsel to examine Kirk Hiatt’s juvenile records did not prejudice the right of the defendant to a fair trial.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
These' actions to enjoin the defendants from maintaining picket lines in the vicinity of plaintiffs’ Coffeyville and Lawrence, Kansas, plants and premises were commenced separately —case No. 41,421 in the district court of Montgomery county and case No. 41,422 in' the district court of Douglas county. In each case an appeal was taken from the order of the trial court sustaining defendants’ demurrer to the plaintiff’s evidence. These appeals have been consolidated in this court upon the stipulation by all parties that the decision in case No. 41,422 will govern and constitute the decision in case No. 41,421, and they will be so considered.
Case No. 41,422 was tried upon (1) a stipulation by the parties that all allegations or statements of fact set forth in the petition were true and (2) additional stipulated facts. The allegations of the petition may be summarized as follows: The named defendants (appellees) are officers, business representatives, stewards or other officials or agents of Local Union No. 41 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, which will be hereinafter referred to as the Teamsters Union. The Teamsters Union maintains an office at 118 West Linwood Boulevard, Kansas City, Missouri, and is the representative or collective bargaining agent of certain employees of The Consumers Cooperative Association, hereinafter referred to as CCA.
CCA is a Kansas corporation licensed to do business in the state of Missouri and has its principal office and place of business at 3315 North Oak Trafficway, North Kansas City, Missouri. CCA also has a warehouse at 1500 Iron Street, North Kansas City, Missouri, and is engaged in the business of purchasing, selling and distributing farm and home supplies to retail farmers’ cooperative associations in the middle west.
The collective bargaining contract between CCA and the Teamsters Union expired on or about March 31, 1958. No agreement was reached during the collective bargaining negotiations carried on prior to and subsequent to the expiration of the contract. As a result, on April 18, 1958, the Teamsters Union notified CCA that it was on strike and had instructed certain of its members to picket CCA’s warehouse and. terminal at 1500 Iron Street. Shortly thereafter, certain of its members stationed themselves in and about the entrances to the premises carrying placards stating, “Truck Drivers and Warehousemen on Strike Against C. C. A., Kansas City, Missouri.” On April 22, 1958, other of its members set up picket lines in and about the entrances to CCA’s general office building at 3315 North Oak Trafficway. They carried similar placards.
About two and one-half weeks after the strike commenced in Missouri, the Teamsters Union sent the named defendants and other of its personnel from Kansas City, Missouri, to Lawrence, Kansas, where they set up picket lines in and around the entrances to the premises of The Cooperative Farm Chemicals Association (plaintiff-appellant), which is a separate Kansas corporation engaged in the business of manufacturing, processing, storing and distributing agricultural chemicals and fertilizers. This corporation will hereinafter be referred to as the Association. The defendants carried placards containing language identical to that on the placards being carried by the strikers in Kansas City, Missouri.
At the time the picket lines were set up around the Association s premises, all of the defendants knew that no dispute existed between the Association and any of its employees, that the employees of the Association were validly represented by another union (Local Union No. 5-613 of the Oil, Chemical and Atomic Workers International Union, AFL-CIO), which was the exclusive collective bargaining agent certified by the National Labor Relations Board, and that a valid collective bargaining contract was then in effect covering all of the Association s employees.
Neither the defendants nor the Teamsters Union sought to represent any of the Association’s employees or to otherwise bargain or present any demands with respect to the wages, hours or working conditions of such employees. The picket lines were not set up for any of these purposes, but, rather, all of the defendants knew that the public, including the Association’s customers, and the drivers of both intrastate and interstate truck lines which normally picked up and delivered the Association’s merchandise would be misled and caused to believe that a dispute existed between the Association and its employees. Further, they knew and intended that the drivers of such truck lines would refuse to cross the picket fines. They also knew that the demands for the Association’s products were greatest at this particular time. The picketing had its intended effect, in that the drivers of intrastate and interstate truck lines refused to pick up or deliver shipments from the Association’s plant, thus seriously disrupting the distribution of such products. The Association could make no concession or other agreement which would in any manner solve or affect the picketing being carried on by the defendants at its Lawrence plant; moreover, it could do nothing which would fend to settle the strike in Missouri.
The Association alleged that it did not have an adequate remedy at law and that the unlawful acts of the defendants would be continued indefinitely, resulting in irreparable injury and damage to it. It asked that the defendants be temporarily and permanently restrained and enjoined from maintaining the picket lines.
A temporary restraining order was issued ordering defendants to desist from picketing the Association’s premises. The Associa tion executed and filed its temporary restraining order bond to pay the defendants for such damage as they might incur by reason of any wrongful issuance of such order. An agreed statement of facts was filed wherein the parties stipulated as follows: CCA is the owner of seventy-five per cent of the common stock of the Association and Mr. Howard A. Cowden is president and general manager of CCA, as well as president of the Association. The collective bargaining contract signed by the Association with its employees contained the signature of Fred F. Claxton, who was the personnel director of CCA. The collective bargaining contract between CCA and the Teamsters Union included the signature of C. K. Ward, the predecessor of Fred F. Claxton.
The volume of interstate business engaged in by the Association exceeds the minimum jurisdictional limitations required by the National Labor Relations Board in order for the Board to assert jurisdiction.
Subsequent to the strike and picketing against CCA by the Teamsters Union, CCA transferred various units of its trucking equipment from Missouri to other locations within the state of Kansas, but no such units were transferred to the Associations plant in Lawrence. However, during normal operations prior to the strike, a number of CCA trucking units picked up merchandise at the Association’s plant and some of these units continued to make such pickups during the time the picket lines were maintained.
The defendants demurred to the evidence on the ground that jurisdiction of the subject matter was pre-empted by the Labor Management Relations Act of 1947 and, therefore, the district court was without jurisdiction to issue either the temporary restraining order or an injunction. The demurrer was sustained on this ground and the temporary restraining order was dissolved. Judgment was entered dismissing the action. At that time the defendants orally moved the court to assess damages under the restraining order bond, claiming as the sole item of damage the sum of $500 for attorney fees. It was agreed that if the defendants were entitled to damages and such damages included attorney fees the amount was reasonable. The court ruled that defendants had been damaged in the amount of the attorney fees and sustained the motion. Following the overruling of its motion for a new trial, the Association perfected this appeal.
At the outset, it may be said that the defendants’ activity in going from Missouri, the situs of the strike, to Lawrence, where they set up picket lines in and around the entrances to the Association’s premises, was unlawful as being in violation of G. S. 1957 Supp., 44-809 (13), which provides: “It shall be unlawful for any person . . . (13) To picket beyond the area of the industry within which a labor dispute arises.”
Defendants do not contend otherwise. In fact, they admit the picketing was unlawful and take the position that the trial court was without jurisdiction of the subject matter of the action by reason of the so-called federal pre-emption doctrine and, therefore, no state court could grant an injunction regardless of whether the picketing was lawful or unlawful under the provisions of either the state or the federal law. They argue that whether an activity is protected or prohibited by the Labor Management Relations Act of 1947 (hereinafter referred to as the Act) or whether such activity is neither protected nor prohibited by it must, in the first instance, be determined by the National Labor Relations Board (hereinafter referred to as NLRB), and that such a determination cannot therefore be made by a state court. They further contend that it makes no difference whether such activity is protected or prohibited by the Act or is neither protected nor prohibited because state courts have jurisdiction over only one area in labor relations matters affecting interstate commerce, such area being violence in the labor dispute. In support of this argument defendants cite Plumbers, Etc., Local 298, A. F. of L. v. County of Door, 359 U. S. 354, 79 S. Ct. 844, 3 L. Ed. 2d 872, and San Diego Building Trades Council, Etc. v. Garmon, 359 U. S. 236, 79 S. Ct. 773, 3 L. Ed. 2d 775, commonly referred to as the second Garmon case.
The Association, on the other hand, contends that the defendants’ activity was neither protected nor prohibited by the Act and that under such circumstances state courts have repeatedly exercised their jurisdiction to enjoin even peaceful picketing such as is involved in the instant case.
It is now well settled that where labor practices are either protected or prohibited by the Act Congress has pre-empted the field in labor relations matters affecting interstate commerce and has vested exclusive jurisdiction in the NLRB to determine such labor disputes. (Local Lodge No. 774 v. Cessna Aircraft Co., 185 Kan. 183, 187, 188, 341 P. 2d 989, and cases therein cited.)
It is equally well settled that Congress never intended to withdraw, and has not withdrawn, from the states all jurisdiction over labor relations matters affecting interstate commerce. (Garner v. Teamsters Union, 346 U. S. 485, 486, 74 S. Ct. 161, 98 L. Ed. 228; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 480, 75 S. Ct. 480, 99 L. Ed. 546; Machinists v. Gonzales, 356 U. S. 617, 619, 78 S. Ct. 923, 2 L. Ed. 2d 1018.)
In the Weber case, supra, it was said at pages 480-481:
“By the Taft-Hartley Act, Congress did not exhaust the full sweep of legislative power over industrial relations given by the Commerce Clause. Congress formulated a code whereby it outlawed some aspects of labor activities and left others free for the operation of economic forces. As to both categories, the areas that have been pre-empted by federal authority and thereby withdrawn from state power are not susceptible of delimitation by fixed metes and bounds. Obvious conflict, actual or potential, leads to easy judicial exclusion of state action. Such was the situation in Garner v. Teamsters Union, supra. But as the opinion in that case recalled, the Labor Management Relations Act ‘leaves much to the states, though Congress has refrained from telling us how much.’ 346 U. S., at 488. This penumbral area can be rendered progressively clear only by the course of litigation.”
In the Gonzales case, supra, at page 619, the Court stated:
“Congress withdrew from the States much that had theretofore rested with them. But the other half of what was pronounced in Garner — that the Act ‘leaves much to the states’ — is'no less important. See 346 U. S., at 488. The statutory implications concerning what has been taken from the States and what has been left to them are of a Delphic nature, to be translated into concreteness by the process of litigating elucidation. See Weber v. AnheuserBusch, Inc., 348 U. S. 468, 474-477.” [Emphasis supplied.]
In one of the most recent cases dealing with this subject, the Supreme Court again recognized that not all jurisdiction has been withdrawn from the states. (San Diego Building Trades Council, Etc. v. Garmon, supra.) The Court quoted with approval the language in the Weber case, supra, which has been set forth above. Thus, the Supreme Court did not intend to alter or foreclose the rules announced in the Garner, Weber and Gonzales cases, supra, and defendants’ contention that the Garmon case, supra, has limited state jurisdiction to the area of violence in labor relations matters is without merit.
It appears the underlying principle of the pre-emption rule is that there should not be two conflicting remedies brought to bear on the same subject. In other words, if both federal and state remedies are available, the state should decline to exercise its remedy and thereby avoid frustration of national labor policies. (Garner v. Teamsters Union, supra; Weber v. Anheuser-Busch, Inc., supra; Machinists v. Gonzales, supra; San Diego Building Trades Council, Etc. v. Garmon, supra.)
Where the activity is neither protected nor prohibited by the Act and is not federally regulated, then the NLRB has no power to entertain the action and, therefore, the activity is “governable by the State or it is entirely ungoverned.” In such cases the Supreme Court has declined to find an implied exclusion of state power. (Auto. Workers v. Wis. Board, 336 U. S. 245, 254, 69 S. Ct. 516, 93 L. Ed. 651.)
Thus, it is clear that if the picketing in the instant case is not protected or prohibited by the Act, then the district court had jurisdiction and the temporary restraining order was rightfully issued.
Although it may well be argued that no “labor dispute” exists under the facts presented in the instant case (Gomez v. United Office and Professional Workers, 73 F. Supp. 679), we need not decide the point but shall proceed to determine whether the activity involved herein is either protected or prohibited by the Act. In making such a determination, the purpose and the method of the activity are all important. (Hyde Park Dairies v. Local Union No. 795, 182 Kan. 440, 321 P. 2d 564.).
There can be little question as to the purpose of the picketing of the Association’s premises. A review of the stipulated facts clearly reveals that there was no dispute between the Association and its employees, that neither the defendants nor the Teamsters Union sought anything from the Association and had no intention of inducing, encouraging or persuading such employees to engage in any concerted or other activity, that there was no attempt on the part of defendants to organize the Association’s employees or to represent them for collective bargaining purposes, and that the picketing had not the remotest connection with working conditions or relations between the Association and its employees.
Furthermore, there is nothing in the record to indicate defendants intended that the Association’s employees respect the picket line or that any of such employees did so. The Association and its employees were not performing “struck” or “farmed out” work for CCA and were helpless to intervene in the defendants’ dispute with CCA in order to stop the picketing. Ap parently, defendants had no such intent but, rather, intended to inflict economic harm on the Association by causing drivers of any truck lines serving the Association to refuse to pick up or deliver merchandise and thereby cause CCA to suffer economic loss indirectly through its stock ownership.
It should also be noted there is nothing in the record tending to show that the Association was doing business with CCA; that is, there is no evidence indicating either corporation bought, sold or handled in any way the products handled by the other corporation. Moreover, there is no evidence to the effect that the Association controlled the labor policies of CCA, or vice versa, with the single exception that an official signed collective bargaining contracts on behalf of each corporation.
Under such circumstances, can it be said that the picketing was protected by the Act? We think not. If the picketing in the instant case is to be protected it must be by reason of section 7 of the Act (29 U. S. C. A., § 157). The purpose of this provision was discussed in Auto. Workers v. Wis. Board, supra, and it was said at pages 257 and 258:
“In the light of labor movement history, the purpose of the quoted provision of the statute becomes clear. The most effective' legal weapon against the struggling labor union was the doctrine that concerted activities were conspiracies, and for that reason illegal. Section 7 of the National Labor Relations Act took this conspiracy weapon away from the employer in employment relations which affect interstate commerce. No longer can any state, as to relations within reach of the Act, treat otherwise lawful activities to aid unionization as an illegal conspiracy merely because they are undertaken by many persons acting in concert. But because legal conduct may not be made illegal by concert, it does not mean that otherwise, illegal action is made legal by concert.” [Emphasis supplied.]
Thus, not all concerted activities may be labeled as protected by section 7 but only those activities which are legal or lawful in the first instance. (N.L.R.B. v. Dallas General Drivers, Etc., Local No. 743, 264 F. 2d 642, 646; Auto Workers v. Wis. Board, supra, p. 257; Milwaukee Boston Store Co. v. Amer. Fed. of H. W., 269 Wis. 338, 69 N. W. 2d 762; Adams Dairy v. Burke [Mo.], 293 S. W. 2d 281; certiorari denied, 352 U. S. 969, 77 S. Ct. 360, 1 L. Ed. 2d 323.) In the instant case, it is admitted that the picketing was unlawful and, therefore, it was not protected by the Act unless defendants’ contention that the Association was an “ally” of CCA or a “non-neutral” is correct.
The facts upon which defendants rely to sustain this contention are as follows: (1) CCA replaced some of its striking drivers with non-union drivers, some of whom continued to serve the Association; (2) CCA owns seventy-five per cent of the Association’s common stock; (3) the president of CCA is also president of the Association; and (4) the Association’s collective bargaining agreement with its employees was signed on its behalf by one or two of the same men who signed such an agreement with the Teamsters Union on behalf of CCA. ■
The trouble here is that mere common ownership and management are not in and of themselves sufficient to change a neutral employer into an “ally” or a “non-neutral employer.” (J. G. Roy & Sons Co. v. National Labor Relations Bd., 251 F. 2d 771; Gomez v. United Office and Professional Workers, 73 F. Supp. 679; N. L. R. B. v. Dallas General Drivers, Etc., Local No. 745, supra, p. 647.) We conclude that the picketing of the neutral employer in the instant case was not protected by the Act. Therefore, if the state court is Without jurisdiction, it must be because such picketing is prohibited by the Act.
Section 8(h) (4) of the Act (29 U. S. C. A., § 158 [h]) is the only possible provision under which the picketing could be prohibited as an unfair labor practice. It provides in relevant part as follows:
“(b) It shall be an unfair labor practice for a labor organization or its agents—
“ (4) to engage in, or to induce or encourage the employees of any employer to engage in, a- strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring . . . any employer or other person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; . . .” [Emphasis supplied.]
It has been held that the provisions Of the mentioned section “are expressly limited to the inducement or encouragement of concerted conduct by the employees of the neutral employer.” (Labor Board v. Rice Milling Co., 341 U. S. 665, 670, 671, 71 S. Ct. 961, 95 L. Ed. 1277.) In .that case, the Court went on to say at page 671:
“That language contemplates inducement or encouragement to some concert of action greater than is evidenced by the pickets’ request to a driver of a single truck to discontinue a pending trip to a picketed mill. There was no attempt by the union to induce any action by the employees of the neutral customer which would be more widespread than that already described. There were no inducements or encouragements applied elsewhere than on the picket line. . . . The picketing was directed at the Kaplan employees and at their employer in a manner traditional in labor disputes. Clearly, that, in itself, was not proscribed by §8 (h) (4). Insofar as the union’s efforts were directed beyond that and toward the employees of anyone other than Kaplan, there is no suggestion that the union sought concerted conduct by such other employees. . Such efforts also fall short of the proscriptions in § 8 (b) (4). In this case, therefore, we need not determine the specific objects toward which a union’s encouragement of concerted conduct must be directed in order to amount to an unfair labor practice under subsection (A) or (B) of § 8 (b) (4). A union’s inducements or encouragements reaching individual employees of neutral employers only as they happen to approach the picketed place of business generally are not aimed at concerted, as distinguished from individual, conduct by such employees. Generally, therefore, such actions do not come within the proscription of § 8 (b) (4), and they do not here.”
In Joliet Contractors Ass’n v. National Labor Rel. Bd., 202 F. 2d 606, it was said that the provisions of section 8 (b) (4) are violated only when the employees of a neutral employer are induced or encouraged to strike or engage in a concerted refusal in the course of their employment to handle certain materials where an object thereof is to force the neutral employer to cease doing business with the primary employer or cease handling such employer’s products.
In discussing section 8 (b) (4), the court, in Retail Fruit & Veg. Clerks U. v. National Labor Rel. Bd., 249 F. 2d 591, said at page 594:
“As we understand this statute there are two necessary requirements to find a violation of it. These are: (I) Independent neutral employers . . ., and (2) the union must have as an object of its picketing (or other activity) the inducement or encouragement of the neutral employees to engage in a concerted refusal to work for their neutral employer, so that the neutral employer will cease doing business with the primary employer, which indicates that the neutral employer must be doing some sort of business with the primary employer.”
Thus, it is clear that in order for there to be a violation of section 8 (b) (4) such as will vest exclusive jurisdiction in the NLRB, the picketing must be aimed at an independent neutral employer and the object of the picketing must be to induce or encourage the employees of the neutral employer to engage in a strike or other concerted refusal in the course of their employment to handle certain products where the object thereof is to force the neutral employer to ceáse handling such products or to cease doing business with the primary employer. The coercion by the union must be directed at the neutral employees before it can be declared a violation of sec tion 8 (b) (4). Coercion or threats addressed directly to the neutral employer are not within the proscription of the statute. (Rabouin v. National Labor Relations Board, 195 F. 2d 906, 911, 912; Adams Dairy v. Burke, supra, p. 294; Milwaukee Boston Store Co. v. Amer. Fed. of H. W., supra, p. 773.)
We have already determined that the Association is a neutral employer and must now determine whether the picketing meets the second requirement. We do not think so. In the first place, the object of the picketing was not to induce or encourage concerted activity on the part of the Association s employees and, in fact, such employees did not engage in any concerted activity. They continued to work even though they were required to cross defendants’ picket lines in order to do so. It is true that certain drivers of truck lines serving the Association refused to cross the picket lines, but even then there was no concert of action on their part, inasmuch as some of such drivers did cross the picket lines. Furthermore, the drivers of the trucks were not employees of the Association.
In the second place, as we have previously stated, there is nothing in the evidence which indicates that the Association was doing business with CCA. The neutral employer must be doing some business with the primary employer or there is no violation of section 8 (b) (4). (Retail Fruit & Veg. Clerks U. v. National Labor Rel. Bd., supra.)
The picketing was therefore neither protected nor prohibited by the Act, and, as we have stated above, under the circumstances state courts are free to exercise jurisdiction. It follows that the temporary restraining order was rightfully issued and the trial court erred in sustaining defendants’ demurrer to plaintiff’s evidence. Consequently, defendants are not entitled to attorney fees as an item of damages. The judgment of the trial court is reversed and the cause is remanded in case No. 41,422 and case No. 41,421, with instructions to enter judgment for the plaintiff.
It is so ordered. | [
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The opinion of the court was delivered by
Owsley, J.:
This is a direct appeal by the defendant-appellant, Rodney Rogers, after being found guilty by a jury on seven counts of felony theft in violation of K. S. A. 21-3701 (a). Appellant was sentenced to a term of not less than one year nor more than ten years on each count, said sentences to run concurrently. Following denial of his post-trial motions, Rogers appealed, alleging numerous trial errors. He will be referred to as Rogers or appellant.
At all times material hereto, Rogers was the owner-operator of a retail liquor store. On September 11, 1973, an information was filed in the district court of Wyandotte County, Kansas, charging Rogers and his mother, co-defendant Helen Rogers, with seven counts of felony theft by having obtained or exerted unauthorized control over certain specified men’s suits with the intent to deprive the owner of the possession and use thereof. Charges against the two defendants arose out of an investigation conducted by the Federal Bureau of Investigation into the burglary and theft of sev eral mens clothing stores. The state presented testimony from various witnesses indicating that two special agents of the F. B. I. contacted Rogers for the purpose of buying men’s suits which they believed to be stolen. They were directed by Rogers to the nearby residence of his mother where they were shown approximately sixty suits for sale at greatly reduced prices. Both Rogers and his mother were later arrested and tried jointly for theft of the suits. The jury found Rogers guilty as charged, but acquitted his mother.
Appellant’s initial claim on appeal is that there was insufficient evidence to support a conviction. He testified that he purchased the suits from a customer of his liquor store who represented himself to be a clothing salesman with some closed-out merchandise, that he paid the salesman $2,500 for about one hundred suits, and that he had no knowledge the suits were stolen property.
While the state has the burden to establish the crime beyond a reasonable doubt, the issue on appeal is whether the evidence is sufficient to form a basis for a reasonable inference of guilt when viewed in a light most favorable to the state. (State v. Platz, 214 Kan. 74, 519 P. 2d 1097; State v. Hill, 211 Kan. 239, 505 P. 2d 704.) It is the function of the trier of fact, and not the reviewing court, to weigh the evidence and pass on the credibility of the witnesses. We have reviewed the record in its entirety, and, while the evidence is not overwhelming, we nonetheless feel it was sufficient to form a basis for a reasonable inference of guilt when viewed in a light most favorable to the state.
Agent Telford Brock, Jr., testified he was a special agent with the F. B. I., assigned to the Kansas City Division. Agent Brock stated he first came in contact with the defendants when he phoned Rogers at his liquor store and told him an acquaintance had said he might be able to purchase some suits from Rogers at less than the retail price. According to the agent’s testimony, Rogers asked for the name and description of the acquaintance. When Brock later arrived at the store, Rogers sent him to his mother’s house where he was shown a room containing approximately sixty suits.
Agent Brock further testified Mrs. Rogers told him she originally had two hundred suits and she was afraid she could lose her insurance license because they were “hot” suits. At one point he heard Mrs. Rogers say she “should have killed Rod [appellant] when he was a baby.” When he was looking at one of the more expensive suits, Mrs. Rogers said it was the “hottest” one she had and that was the reason she took the tags out. Brock’s testimony was corroborated by a fellow agent, David Spencer.
Julius Sander, an Overland Park tailor, testified state’s exhibits one through six were suits stolen from his clothing store.
Harold Brents testified on behalf of appellant. He said he was appellant’s accountant and he had purchased a suit from appellant. No mention was made to him about the suits being “hot” and there was no attempt to conceal the sale.
Robert Desbien, appellant’s friend for twenty-five years, stated appellant called him to ask his opinion as to the feasibility of buying and reselling some suits that were closed-out or distressed merchandise. He also later purchased one of the suits from appellant.
Bob Sands, another long-time friend of appellant, stated he helped move the suits from appellant’s apartment to his mother’s apartment. This was done in the open, without any attempt to conceal the goods. Appellant told him he bought some of the suits from a customer who was being transferred out of town.
The co-defendant, Helen Rogers, testified appellant told her he had purchased a few suits at a close-out sale. She claims she told the F. B. I. agents the suits were being sold for a hot price, and did not tell them the suits were “hot” in the sense of having been stolen.
Unfortunately for appellant, the jury did not believe his explanation as to how he acquired the stolen property. The jury had the witnesses before it and was able to observe their demeanor and assess their credibility. Applying the previously stated rule for appellate review of criminal convictions, we find no error in the trial court’s acceptance of the jury’s verdict.
Under the second point of appellant’s brief we are faced with several claims of error flowing from the alleged misconduct of the prosecutor during the trial. One of appellant’s complaints is that the prosecutor committed prejudicial error in the state’s closing argument when he referred to appellant as being guilty of a prior offense and being a criminal.
We have examined the record and the included portions of the state’s closing argument and find no basis for predicating reversible error. Appellant’s objection to the use of the words “guilty” and “criminal” have been taken out of context and a proper reading shows the state did not refer to appellant as a criminal, but was merely referring to others convicted of a crime by the state. Al though the prosecutor used the word “guilty,” he did so in regard to appellant’s admission that he was guilty of selling liquor on credit in violation of unspecified regulations.
Appellant also complains the state failed to confine its argument to the evidence admitted at trial. Although the prosecutor strayed from the evidence in his closing argument and engaged in speculation on several occasions, he was properly admonished by the trial court and no prejudice appears to have resulted from his comments.
We find no prejudice resulted from the endorsement of additional witnesses by the state. Appellant argues the state intentionally suppressed the names of three witnesses it planned to call until two days before trial, when it filed a motion to endorse the additional witnesses. The trial court sustained the motion and appellant contends he was given no opportunity to prepare for the three “surprise” witnesses.
K. S. A. 22-3201 (6) provides the prosecuting attorney shall endorse on the information the names of all witnesses known' to him at the time of filing. Our cases construing this section and its predecessor, G. S. 1949, 62-802, have developed the rule that the late endorsement of the names of witnesses rests in the sound discretion of the trial court, and its ruling will riot be disturbed in the absence of an abuse which prejudicially affects the right of an accused to prepare his defense. (State v. Blocker, 211 Kan. 185, 505 P. 2d 1099; State v. Foster, 202 Kan. 259, 447 P. 2d 405.)
Although appellant claims the three additional witnesses were available to the prosecution for more than a year prior to trial, and that the prosecution should have known their testimony was necessary to build the state’s case, he does not indicate or allege in' what manner the late endorsement prejudiced the preparation of his defense. To the contrary, it appears these witnesses testified only as to the custody of the suits during the period from their confiscation until the time of trial. Appellant did not request a continuance nor does the record reflect the raising of any objection to the state’s, motion at the time of trial.
The additional claims of error under appellant’s second point all relate to the state’s alleged failure to comply with the pretrial discovery order. A pretrial conference order was filed on October 16, 1973, dealing with matters of discovery by appellant and the state, preliminary motions by appellant, and questions by the court. Appellant’s complaints are as follows: (1) Even though the pretrial conference order required the state to produce the oral statements made to the F. B. I. agents by co-defendant, Helen Rogers, the state failed to produce the same and counsel for appellant was given no- opportunity to inspect these statements until the trial. (2) Even though the trial court ordered the prosecutor to furnish appellant’s counsel with oopies of all statements made by co-defendant at the close of the first day of trial, the state furnished only part of the oopies ordered and attempted to conceal others from appellant’s counsel. When this was brought to the attention of the trial oourt, court was recessed until all reports were given to appellant’s counsel. (3) The state attempted to introduce an inventory list which it had in its possession and which had not been mentioned in the pretrial discovery order. Although the list was not admitted into evidence, testimony was allowed in reference to the list over objection of appellant. (4) The state used a grand jury transcript to impeach the testimony of the co-defendant even though the pretrial discovery order made no mention that the state had this transcript in its possession or that it would be used in the trial.
The pretrial conference order made by the trial court in the instant case was comparable to an order for discovery and inspection issued pursuant to K. S. A. 22-3212 of the new code of criminal procedure (effective July 1, 1970). Upon motion of a defendant, that section permits a broad range of discovery to be made available at the discretion of the trial court. Rulings of the trial court on a defendant’s motion for discovery of evidence in the state’s possession are within the discretion of the trial court and will be set aside by this court only upon a showing of an abuse of that discretion. (State v. Hill, 211 Kan. 287, 507 P. 2d 342.)
We have emphasized that once a pretrial discovery order has been issued, it is to be complied with “in spirit as well as in letter.” (State v. Jones, 209 Kan. 526, 498 P. 2d 65, quoting from Pierce v. United States, 414 F. 2d 163 [5 Cir. 1969].) We will not condone intentional failure to comply with the explicit terms of a discovery order. Nevertheless, the trial court is vested with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order. (State v. Jones, supra, Syl. ¶ 1.) We cannot say the action of the trial court in the instant case was an abuse of discretion.
Appellant also objects to the introduction of the grand jury testimony on another ground. He contends it was improper to use the grand jury testimony of the co-defendant since the trial court made no specific finding as to its admissibility as required by K. S. A. 60-435. That section grants a privilege to a witness and makes temporarily inadmissible, evidence of communications made to a grand jury. Such evidence is inadmissible until the judge first determines (a) the matter which the communication concerned was not within the function of the grand jury to investigate, (b) the grand jury has finished its investigation and made public its finding, or (c) a disclosure should be made in the interest of justice.
Appellant is correct that the trial court made no specific finding as required by 60-435 prior to admitting the grand jury testimony of the co-defendant. Although the trial court erred in admitting such testimony for failure to make specific findings, we cannot set aside the verdict or reverse the conviction on this ground. Appellant’s objection to the introduction of the evidence was directed at the lack of a proper foundation by the prosecution. No mention was made of any violation of the rule contained in 60-435. K. S. A. 60-404 declares the erroneous admission of evidence shall not be ground for reversal unless there is a timely and specific objection. (State v. Kliewer, 210 Kan. 820, 504 P. 2d 580.)
Appellant next contends the trial court erred in instructing the jury that they could make their own determination as to the value of the suits charged as stolen in Counts III, IV, and VIII. Appellant bases his contention on the fact that Julius Sander, owner of the suits which were the subject of these counts, testified his actual cost for each of the suits involved was between $41.00 and $45.00, or less than the statutory minimum amount for charging felony theft under K. S. A. 21-3701. Appellant argues the owner’s testimony as to his cost for determining value on the three counts is the “best evidence,” and the jury should have been instructed they could only find the appellant guilty of a misdemeanor.
Appellant fails to mention, however, 'that on direct examination Sander testified the retail price of each of the suits in question was well in excess of the $50.00 minimum for charging felony theft. Furthermore, the suits were admitted into evidence and taken to the jury room during deliberation. Where there is evidence of both the retail and wholesale price of a stolen article, it is not error for the trial court to permit the jury to make their own determination as to the value of the property taken in order to establish the degree of the crime. (Clinton v. State, 210 Kan. 327, 502 P. 2d 852.)
Finally, appellant contends tibe jury’s verdict convicting him of felony theft should be set aside as wholly inconsistent with the judgment of acquittal awarded the co-defendant, Helen Rogers. We are aware of the factual similarity of the evidence offered against both defendants, and, while it is difficult to imagine how the jury could convict appellant and not the co-defendant, we need not reach that issue. In a long line of cases it has been firmly established by this court, as well as most other jurisdictions, that consistency in the verdict is not necessary. (Dunn v. United States, 284 U. S. 390, 76 L. Ed. 356, 52 S. Ct. 189, 80 A. L. R. 161; State v. Freeman, 198 Kan. 301, 424 P. 2d 261; Odom v. United States, 377 F. 2d 853 [5th Cir. 1967]; 22 A. L. R. 3d 705, and cases cited therein.)
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by an attorney-at-law against other attomeys-at-law to recover one-third of an attorney fee awarded in a divorce case in the district court of Johnson county. A determination of the case requires an interpretation and application of Disciplinary Rule DR 2-107 of the Code of Professional Responsibility adopted by this court effective July 1, 1970. It provides in pertinent part as follows:
“DR 2-107 Division of Fees Among Lawyers.
“(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
“(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
“(2) The division is made in proportion to the services performed and responsibility assumed by each.
“(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
“(B) . . .”
This is the first occasion where a controversy between attorneys over a division of an attorney fee requires this court to interpret DR 2-107 and to apply it to a specific factual situation.
The plaintiff-appellee, Thomas P. Palmer, has practiced law for many years in Wyandotte county. We will refer to him as the plaintiff or Palmer. The defendants-appellants are individual members of two Johnson county law firms. The original defendants in the case were John W. Breyfogle, John J. Gardner, Peter A. Martin, Joseph S. Davis, Jr., and Hugh H. Kreamer. We will refer to them as the Breyfogle law firm. In the course of the litigation Eugene T. Hackler, Robert C. Londerholm, Wilson E. Speer, Joseph N. Vader,, and Randolph G. Austin were made additional party defendants. We will refer to them collectively as the Hackler firm. John Anderson, Jr., was also made a party defendant. He had previously been a member of the Hackler firm but withdrew therefrom and therefore filed a separate answer in the case.
The parties to the divorce case are not involved in this litigation. Under the circumstances we do not deem that it would be proper to reveal their identity or their private affairs in this opinion. Throughout the opinion we will refer to the plaintiff-wife in the divorce case as Wife. We will refer to the defendant-husband in the divorce case as Husband.
The claim set forth in the petition and amended petition filed in the case was based upon a claim by Palmer that he was entitled to a forwarding fee or referral fee of 33% percent of the total attorney fees collected. Plaintiff relied upon the minimum fee schedules of the Johnson county and Wyandotte county bar associations. They called for the payment of an attorney fee to local counsel without active participation by the forwarding counsel in the amount of 66% percent of the fees collected, with a payment of fee to the forwarding attorney in the amount of 33% percent. The amended petition alleged in substance that the plaintiff Palmer is an individual practicing lawyer in Kansas City, Kansas; that the defendants, Breyfogle firm and Hackler firm, are engaged in the practice of law in Olathe, Johnson county, and that the defendant, John Anderson, Jr., is engaged in the practice of law in Overland Park. The petition further alleged that on or about October 30, 1971, the plaintiff caused a divorce case for Wife to be forwarded to the Breyfogle firm for filing in Johnson county; that the case was filed and that a substantial fee was obtained. The total fee received was $90,000 less some expenses. The basis of plaintiff’s claim is set forth in paragraph 5 of the amended petition:
“5. That the minimum fee schedule of the Johnson County and Wyandotte County, Kansas Bar Associations call for payment of attorneys fees to local counsel without active participation by the forwarding counsel of 66%% of the fee collected. That the balance of said fee is to be paid to the forwarding attorney in such cases. That in compliance with the minimum fee schedule and established custom and practice, the plaintiff did forward said case as aforesaid to the defendants, Breyfogle, Gardner, Martin, Davis and Kreamer.” (Emphasis supplied.)
In paragraphs 6 and 7 of the amended petition the plaintiff alleged that he was entitled to an attorney fee in the amount of $30,000 which defendants had refused to pay. Plaintiff’s prayer was for $30,000 and costs.
The Breyfogle firm filed an answer admitting the professional status and composition of the law firms involved, admitting the filing of the divorce case and that a substantial fee was earned, but denying the other allegations of the amended petition. These defendants also alleged as a defense that the petition failed to state a claim upon which relief can be granted and as an additional defense alleged that the plaintiff did not perform any real services for which he would be entitled to a legal fee and that the prosecution of this case constitutes a violation of Canons of Legal Ethics and the Code of Professional Responsibility adopted by the Kansas Supreme Court. The answer filed by the Hackler firm admitted the filing of the divorce case and the fact that a substantial attorney fee was earned. Other allegations of the amended petition were denied. The defendant, John Anderson, Jr., filed his answer admitting par ticipation of all parties as counsel in the divorce action and prayed the court for an appropriate order for determination of the payment of fees as justice requires.
At the outset of the litigation the defendants, Breyfogle firm, filed a motion to dismiss. Affidavits were filed by the parties in support of and in opposition to this motion. The district court denied the motion on the grounds that there were material questions of fact in dispute and therefore the case was not ripe for determination of issues of law. The defendants, Breyfogle firm and Hackler firm, on this appeal maintain that the trial court erred in overruling this motion to dismiss. We have concluded that at the time this motion was presented and denied by the trial court there were genuine issues as to material facts in regard to the legal services which might have been rendered by the plaintiff Palmer. We have concluded from the record before us that the evidence in this case must be considered in determining the issues of law presented. For this reason we will summarize the testimony presented at the trial.
The first witness called on behalf of the plaintiff was the plaintiff Thomas P. Palmer. Palmer has been a practicing lawyer since his admission to the bar in June of 1911. He is 85 years old. He has officed with David W. Carson since 1940. He described himself as an individual practitioner and not a member of the Carson firm. He first met Wife when she joined the Trap Shooters’ Association in 1961. He got to know her through trapshooting and skeet. In 1971, Wife called him at his office and said she wanted to talk to him. She came to his office and said she was having some marital troubles. She said she already had hired an attorney in Saint Joseph, Missouri. Palmer told her that she would have to dismiss the St. Joseph attorney before he could represent her. He also suggested that the case should be filed in Johnson county. On this same occasion he introduced her to David W. Carson, and the three of them talked about the case. They talked about the desirability of filing it in Johnson county. The implication from his testimony is that she had dismissed her St. Joseph attorney before consulting jointly with Palmer and Carson. Carson suggested to Wife that Peter Martin be retained to assist as his office was in Johnson county. The only mention of fees was Carson’s advice that Husband would have to pay them. On direct examination Palmer testified that while the case was pending in Johnson county Wife called him at home one night and said she was concerned about the way the case was proceeding and wanted to know what Palmer could do about it. Palmer told Carson about the conversation and he got in touch with John Anderson, Jr. of the Johnson county bar. Palmer stated that he had some other conversations with Wife over the telephone. He testified that he more or less kept track of the progress of the case since he was interested. He considered himself to be her lawyer even though the Carson firm later withdrew. He did not type any of the pleadings, did not appear in court, but considered himself responsible for the conduct of the case because Wife was his client and he should take an interest and if necessary look into the matter for her. He did on the one occasion when she became dissatisfied. On cross-examination Palmer stated that the last divorce case in which he had actively represented a client was 12 or 15 years before in Wyandotte county. He has never tried a divorce case in Johnson county. Wife did not pay him a retainer fee. In regard to Palmer’s participation in the divorce case his testimony was as follows:
“Q. And I think I am correct, you did not participate in this case in any way, shape or form, as far as the pleadings or the Court appearances, or anything like that, did you?
“A. I did not.
“Q. And you did not participate in the settlement discussions; you didn’t take depositions; you did nothing at all except confer with Wife on two or three or four occasions?
“A. I was never asked to. I was totally ignored by Mr. Martin in this case, and so I thought it was their duty, if they wanted any help or consideration from me that they would be in touch with me.
“Q. Is it correct that prior to the institution of this case, you had never known Peter Martin?
“A. Never knew him.
“Q. So there’s no way you could have referred this case to Peter Martin?
“A. Through Mr. Carson it was referred to Peter Martin by telephone, when the three of us were in the office.”
Palmer stated that he had telephoned Martin’s office and left his name, but Martin had not returned his calls.
His name never appeared as counsel of record in the divorce case. He did not get John Anderson, Jr. into the case. His only association with David W. Carson is that he pays rent and telephone bills but has no arrangement of partnership or division of fees. Palmer never submitted a statement for payment of fees either to the Breyfogle firm or Hackler firm. He never prepared a statement as to the time he had spent in regard to the divorce case. He stated that the fee he was seeking from the court would be on a referral basis. Palmer had no time records of the number of hours he had spent on the divorce case; he had nothing to present in writing to the court to show the services which he had rendered. On redirect examination Palmer gave his opinion that one-third of the total attorney fees or $30,000 would be proper remuneration for the services which he had rendered. On additional cross-examination Palmer testified that he had no idea how much time he had put in the case. In addition to plaintiff’s live testimony his deposition was received into evidence in its entirety. Much of his deposition involved the same matters which he testified about at the trial and will not be repeated. At the time his deposition was taken in July 1973 Palmer was not involved as counsel of record in any litigation. He had not been counsel of record in any lawsuit in the past five years. When Wife first came into his office he estimated that the two of them talked together an hour or longer and then they talked further with Carson. He conferred with Wife two or three months after that when she indicated that she was not happy with the way things were going. That was about the time that John Anderson, Jr. became co-counsel. These conferences were not at his office, sometimes at the shooting range and sometimes over the telephone. He does not keep any diary or time records of any sort. Plaintiff stated that after the telephone conference when Wife stated she was dissatisfied he did not have any subsequent conversations with her. He did have a conference with Anderson when defendant Martin was present but this was after the divorce case had been concluded. Palmer never met or talked to Peter Martin until one day in John Anderson’s office after the divorce case was over. Counsel for the defendants asked the plaintiff to put it in his own words, any way he wanted to, the amount of work he had put into the case. He replied:
“A. I have answered it. I have not kept a record of it and I don’t know exactly what time was spent on it.”
Palmer was aware of the fact that David W. Carson had withdrawn from the case because there might be a conflict of interest. He did not have any arrangement with Carson as to a division of the attorney fees. He figured whatever the referral fee would be, would be his fee. Palmer’s description of a referral fee was as follows:
“A. The referral fee would be, as I understood it, what is in the law as to whether you are actively engaged in the matter or whether you are not actively engaged. If you are not, there is a third of the fee you are entitled to on a referral basis.”
If he was inactive entirely, he would expect the referral fee to be one-third. Palmer was firm in his testimony that he did not have any agreement with defendant Martin or any members of the Breyfogle firm to pay a referral fee to him. However, when Carson talked to Martin he understood that there would be a fee on the basis of the referral. That was the day Carson first talked with Martin over the telephone.
The plaintiffs next witness was David W. Carson. Carson has been a practicing attorney in Wyandotte county for 34 years and has maintained the same suite of offices since about 1940. He met Wife through Mr. Palmer bringing her into his office and telling him that she was having marital difficulties. Some six months before her husband had come in and discussed in a general way the divorce laws of the state of Kansas. He did not charge Husband a fee and was not asked to go ahead on his behalf. The first thing he told Wife was about this previous consultation with Husband. He did not want to have her husband’s counsel making an issue of it. Wife was willing to have Carson associate with Palmer in her representation. He advised her that she probably should have an attorney in Johnson county. Apparently Palmer had discussed this previously with her. Carson proceeded to contact Peter Martin and the case was filed in Johnson county. Martin was contacted at his instance. Fees were not discussed with Wife but she was apprised that she would not have to put out anything. Following the filing of the case Carson contacted Husband’s attorneys in Chicago by letter. They advised him that Husband objected to his appearing in the case. Carson decided it was the best thing for him to get out of the case although he did not consider that there was any actual conflict. The reason for hiring a Johnson county attorney was that Palmer had persuaded Wife that she would probably get a better hearing there because of the familiarity of the courts in that county in handling estates and larger sums. Following Carson’s withdrawal from the case he did have further contact with Palmer in regard to the case. Palmer stated that Wife was upset with the progress of the case and was extremely upset with the way the matter was being handled by Martin. Carson told Palmer that they should have John Anderson, Jr. as co-counsel in the case. Palmer participated in the arrangement to have Anderson as co-counsel.
There was never any question that Martin knew the case origi nated with Palmer and Palmer was in it all the way through and having discussions with Wife. After the divorce case was over and just prior to the filing of the instant case, Carson testified that he had had a conversation with Martin in regard to a fee. Martin stated that they should work out something but that there was a serious question in his mind about an ethical problem due to a recent canon of ethics and he could not pay the usual one-third referral fee. This conversation was after a dispute had actually developed regarding the fee. Carson was asked to explain his understanding of a referral fee basis. His explanation was as follows:
“A. Well, as Mr. Anderson has stated, those of us who have practiced for a number of years have always . . . handled matters on the basis that the attorney to whom the business originally came was naturally entitled to a substantial portion of the fee. It used to be that on a referral basis the attorney to whom the business originally came got half, regardless of participation or not. Then the rules of the two bar associations were changed to the point where the half was only in the event of participation in the actual trial and the one-third was on the basis of referral but no participation, whatsoever."
Carson was of the opinion that the supportive role of Palmer with Wife was of great influence throughout the case. On the basis of Palmer s supportive role and the fact that the case would not even have been in Johnson county if it hadn’t been for Palmer, on the basis that these people would not have even seen the case, on the basis of the amount of money involved, and on the basis of the fee that they received, he did not think that one-third of the total fee was excessive at all. On oross-examination Carson testified that he could not tell how many hour’s Palmer had spent on the case and that he did not know how many hours the Breyfogle firm or the Hackler firm had put into the case. He considered these people as time sheet lawyers. He stated they do not understand the emotional portion of a case of this kind or the impact it has or the importance of somebody who can sustain a person while going through a case like this. Carson had no idea the number of hours anybody spent on the case. The following question and answer are shown on the record:
“Q. You do know the Supreme Court has outlawed, so to speak, referral fees as of 1970?
“A. This is your opinion.”
On rebuttal Carson testified that at the time of his telephone conversation with Martin when he advised Martin that he was with drawing, Martin told him that the most he could pay Palmer would be $10,000.
The plaintiffs third and final witness was John Anderson, Jr. He had known Husband and Wife for some years and the way he became involved was that he received a telephone call from David Carson setting up a luncheon engagement with him, Carson, Palmer, and Wife. There he learned that Carson had been co-counsel with Peter Martin but that Carson had' withdrawn from the case at the objection of Husband’s counsel. Wife asked him to enter the case. She first talked with Palmer as she had been a long time friend of his in trapshooting. He understood that she was Mr. Palmer’s client. At that time Anderson was a member of the Hackler firm. Anderson was asked what his understanding was in regard to the fee and he answered as follows:
“A. Well, let me just say it in my own way, and if it can be of help to the Court in solving this problem, it will be of help, but my understanding was, if it was Mr. Palmer’s case and if Mrs. -, through the meeting with Mr. Palmer and myself and with Mr. Carson, although he said he was getting out of the case, it was my understanding that a proper fee, whatever it was, would be payable to Mr. Palmer. . . .”
He did not consider that Palmer was to receive a forwarding fee but he figured that Palmer would have an interest in the fee. There was no dollar sign fixed to it. He worked with Martin in the case. He met with Palmer on at least two other occasions after the first meeting; he consulted Palmer by telephone, knowing that he officed with Carson and knowing that Carson was acquainted with Wife and had conferred with her on numerous occasions. Although he knew that Carson had withdrawn from the case, he consulted with Carson only because of the relationship with Mr. Palmer. He considered that Palmer was in the case throughout. The Rreyfogle firm carried the burden of the legal work.
Martin made at least two trips to California to take depositions. Anderson made one trip to' California and took depositions in Los Angeles. It was his opinion that the counseling and the responsibility that an attorney has in counseling with a client and the reliance upon that attorney’s counseling with a client can sometimes outweigh an inordinate amount of work if the client feels that way about it. Anderson stated that he would have no “qualm or question about Mr. Palmer having a third of the fee in this case.” He would have to say that Palmer did not contribute as much as Martin and himself in respect to the hours spent. At the luncheon meeting when he was employed, Wife was .given to understand that she was not going to pay any portion of the fee as it would be paid out of an allowance. The settlement provided for a lump sum which would include the fee, but the amount was understood before the settlement was signed and Wife was completely assured that she would not have to pay anything out of her pocket. He does not know that Wife considered Palmer and Carson both as counsel at the time she was talking to Palmer. All he knows is how he got into the case and how it was explained to him in her presence. It was his understanding that she was Palmer’s client. Whether or not it was only for the purpose of getting Carson into the case to help, which makes sense, he was not going to put words into her mouth. After the luncheon when Anderson was employed, he consulted with Palmer about this litigation at least twice. He did not write or memorialize those conversations. The case was filed on November 1, 1971, and his formal entry of appearance was filed on November 12, 1971.
On cross-examination Anderson testified that he could not estimate the number of hours he was counseling either by telephone or directly with Mr. Palmer in regard to the case, maybe ten hours, maybe not that much. The case was started in November 1971 and he ran for governor in 1972. When he was gone, Mr. Hackler and Mr. Logsdon, of his firm worked on the case. He thou,ght he talked to Palmer at least three times. These luncheon meetings of which he had two lasted more than one hour. Anderson testified that the total attorney fees paid in the divorce case to all the attorneys as a part of the settlement was $87,500. The Breyfogle firm and Hackler firm shared equally in this attorney fees. Anderson emphasized that there was an understanding before the settlement was made that there was one fee, that it was not enhanced and enlarged because of the number of attorneys in the case and that was explained to Wife. In regard to whether Wife had been given to understand Palmer would share in the fee, Anderson testified that he did not know. John Anderson, Jr. was the plaintiffs last witness.
The defendants offered the deposition of Wife taken September 26, 1973. She testified that she called Palmer to arrange for an appointment to discuss marital problems and that this was the first time that she had talked to him professionally. She talked to him at that time about retaining his partner, David Carson. When she first came to Palmer’s office she talked at length with him and the two of them talked with Carson. At this first conference with Carson and Palmer, Wife told them that she would like to hire David Carson to represent her but that she would have to dismiss Mr. Kranitz, her St. Joseph attorney first. She later discharged Mr. Kranitz. She consulted with several attorneys in Kansas City when she thought about changing from the attorney in St. Joseph. Eight firms were mentioned. She is not sure whether she or Mr. Carson selected the Breyfogle firm. She really hadn’t selected any firm, she was just talking to people still. She was asked whether or not she subsequently conferred professionally with Mr. Palmer about her case. She replied:
“A. Well, really, it was more with David Carson. I can’t remember. . . . I would not say that I really consulted with him in — well, I was consulting with David.
“Q. Did you consult with Palmer in a professional manner subsequent to that time, where you considered yourself to be his client and he your attorney?
“A. I wouldn’t say that. However, I wasi consulting with the firm. That is the only way I can say it.
“Q. Well, after that time, did you have any discussion with Tom Palmer about how your case was going or any instructions you wanted him to do, or anything like that?
“A. I really can’t remember. I can’t remember a specific conversation. . . . He may have been — it could be he was around there, but there was a period of time when they were not exactly representing me and we were discussing it. . . .
“Q. Do you remember ever calling him at home and asking specifically for legal advice after that time?
“A. Well, it was the other way around. He called me and asked how I was getting along. Wait a minute. I think I might have called him at home. I am sure I did. I am sure I did, especially when my husband . . . objected to David Carson being on the case.”
She really couldn’t remember what the conversations with Palmer were about. She was more or less in touch with him. The Carson firm was asked not to represent her. They would not have any part in it, although they did help her a lot with moral support, maybe. By that she just means they were friendly after she moved to Kansas City.
Wife did not have any recollection of the number of hours that she talked with Palmer; she did not see him much except for just some conversations. It would not have been too many hours after Carson was asked not to represent her. She was asked the following question and answered as indicated:
“Q. And the contacts after that would be of a friendly supportive nature because of the social relationship between you and Palmer; is that correct?
“A. Yes. But my opinion on that and a lawyer’s opinion on that are two different things, I have found out. A friendly supportive nature can mean they are doing their work. I did not know that at the time.”
The defendant, Peter A. Martin, testified that he was a practicing lawyer in Johnson county and a partner in the Breyfogle firm. The dispute in this case arose out of the divorce case which was litigated in Johnson county. His first contact in the case was on Friday evening, October 29, 1971. He received a telephone call from David W. Carson asking if he would be available to act as co-counsel with him in a divorce case which should be filed in Johnson county. Arrangements were made for him to meet Carson and Wife on the following Sunday evening, November 1, 1971. It was agreed that the case should be filed in Johnson county. Martin arranged for Wife to lease an apartment in Merriam, Kansas, to establish a Johnson county residence. Martin contacted the movers, the telephone company, and the rental company. Wife stayed in Johnson county on that Sunday night and actually moved into the apartment on Monday morning. Martin prepared the suit papers and secured the clients signature. Carson told him to go ahead and put Carson’s name on the petition and to sign his name. The following day, November 2, Carson advised Martin that he had received a communication from Husband objecting to Carson continuing in the case. Carson wanted to know what could be worked out on the fee. Martin advised him that there were some ethical problems involved, but he would try to work something out with him. There was no discussion of paying a fee to Palmer. Martin was apprehensive about paying Carson a fee because of the conflict of interest and because of the canons of ethics. Martin told Carson that they would have to find a legal basis for paying Carson and Carson was concerned because Martin did not make a commitment on the fee. Carson withdrew formally from the case within a matter of days thereafter. On November 9, 1971, Martin received a telephone call from John Anderson, Jr., advising him that he had been retained by Wife to assist him in the case. Anderson was in the case eight or nine days after it was filed. Martin testified that he kept meticulous records and sent copies of letters and memorandums to all attorneys involved in the case. He did that routinely with Anderson and Hackler. He did not send any communication to Palmer. He did not know Palmer was in the case. In regard to complaints about the progress of the litigation Martin testified that Anderson was retained only eight or nine days after the case was commenced. At that time the case had just been filed, an interlocutory support order obtained and summons sent all around the country. A private detective was retained to exercise surveillance and ultimately to serve Husband with papers. The divorce case involved between seven and eight million dollars’ worth of property. Wife received something short of $2,000,000, plus retaining all of her property which was worth in the neighborhood of $1,000,000. The legal services in the case were difficult because of the size of the case and the tax aspects. The discovery of the real worth of family assets was important. Trips were made to California; buildings were inspected; a special stockholders’ meeting of the family holding company was attended. Many conferences were had with the private detectives in California. It was necessary to confer with various tax consultants and there were probably one hundred conferences between the attorneys for Husband and Wife. Martin estimated his actual time spent in the case at about 300 hours minimum. Palmer did not any way assist him in the case. Martin was never aware that Palmer was involved in the case except for his having brought Wife into Carson’s office in the original instance. Martin never had any contact whatsoever with Palmer nor did Martin know that he had a continued interest in the litigation. Palmer never wrote him a letter, never called him by telephone or sent him a statement for any time he expected to be paid for. The total fee was $91,000 from which was deducted $3,527 for expenses. The net professional fee would be $87,473. The litigation lasted approximately ten months. Martin never consented on behalf of anyone to pay Palmer any portion of the fee.
The settlement in the divorce case included the attorney fees which were added to the lump sum of cash which Wife was to receive. No amount was mentioned or built into the settlement for Palmer. At the time of Martin’s initial conversation with Carson he understood and assumed that he would be dividing the work and fee equally with Carson. Though Martin took the lead he had no quarrel with a 50-50 division of the fee with the Anderson firm. After the controversy over Palmer’s fee arose the sum of $30,000 was deposited in a Certificate of Deposit and the balance distributed between the Breyfogle and Hackler firms. After Anderson entered the case Martin had a few conversations with Carson. Martin was concerned about talking to him because of Carsons previous withdrawal from the the case.
The defendants’ only other witness-was Wilson E. Speer, a member of the Hackler firm. He testified that.the Hackler firm’s records show that that firm expended a minimum of 133 hours in the divorce litigation.
At the conclusion of the evidence the district oourt, stating that it was making a division of the fee in proportion to the services performed and the responsibility assumed by each, granted the plaintiff Palmer a judgment for $15,000 on the evidence presented. The court emphasized that this was not a finder’s fee but what it considered to be a fair proportion of the total fee, based upon the service Palmer performed and responsibility that he had assumed. Both sides have appealed to this court. The defendants maintain that Palmer was not entitled to any attorney fee under Disciplinary Rule DR 2-107. The plaintiff Palmer takes the position that the court erred in failing to award him $30,000, a full one-third share of the total fee paid in the divorce case. He contends that the Wyandotte and Johnson county minimum fee schedule allowance of a one-third forwarding fee should have been given effect by the trial court.
We should now turn to DR 2-107 to analyze its provisions and to consider its purpose. The forerunner of DR 2-107 was Canon 34 of the Canons of Legal Ethics. It provided simply that no division of fees for legal services is proper, except with another lawyer, based upon a division of service or responsibility. DR 2-107 was adopted to clarify Canon 34 and to make the canon more specific. On a number of occasions in the .course of the trial of this case the trial court pointed out that for many years it was customary in Kansas for a forwarding attorney to receive one-third of any fee which was generated in a particular lawsuit. Such a fee was expected even though the forwarding attorney did not participate in the lawsuit. Such a fee has been described as a finder’s fee or a forwarding fee or sometimes as a referral fee. It was the intention of the American Bar Association and also that of this court in adopting DR 2-107 to prohibit this long followed procedure.
The evils of the referral fee have been well recognized. It has been said that admission to the practice of law is something more than admission to an association of businessmen or tradesmen. It is membership in an ancient and honorable profession that has for its goal the furtherance of the administration of justice, and the attorney is an instrument for the achievement of this noble purpose. (McFarland v. George, [C. A. St. Louis, 1958] 316 S. W. 2d 662.) Members of the public who seek the services of an attorney cannot be treated by him as mere merchandise or articles of trade in the market place. A client is not an article of property in which a lawyer can claim a proprietary interest, which he can sell to other lawyers expecting to be compensated for the loss of a property right.
Henry S. Drinker, author of Legal Ethics in a panel discussion reported in 7 University of Florida Law Review, pp. 433, 434 stated:
“It makes the law too much of a business if you are practicing the way you would as a broker. The lawyer is not supposed to get paid for anything but the legal services that he renders, and selling a man a client is not a legal service.”
In Weil v. Neary, 278 U. S. 160, 73 L. Ed. 243, 49 S. Ct. 144, the Supreme Court of the United States pointed out the inherent evil of the referral fee to be that there would be a temptation to both attorneys to seek to- increase the allowance of fees so as to secure a generous provision for both. The motive for excessive allowances could hardly be more direct.
With these evils in mind this court adopted DR 2-107 effective July 1, 1970. DR 2-107 prohibits a lawyer from dividing a legal fee with another lawyer who is not a partner or associate of his law firm, unless three conditions are met:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
Here the total fee for services in the divorce case was approximately $87,000. There is no contention by any of the parties that this fee exceeded reasonable compensation for all legal services rendered the client in this case. The case was extremely complex and difficult and the total property involved was in the neighborhood of eight or nine million dollars. We will proceed on the theory that the third requirement of DR 2-107 has been satisfied and turn to the first two requirements.
DR 2-107 requires that the client consent to the employment of the other lawyer after a full disclosure that a division of fees will be made. There is no dispute in this case that Wife fully consented to the employment of Peter Martin of the Rreyfogle firm and also John Anderson, Jr., of the Hackler firm. The evidence is also undisputed that both of these attorneys were employed by David W. Carson and not directly by the plaintiff Thomas P. Palmer. The problem presented is whether or not a full disclosure was made to the client that a division of fees would be made. The trial court at the time it announced its decision from the bench stated in this regard as follows:
“. . . There is no clear evidence that any disclosure was made that there would be a division of . . . fees. I have read Mrs._’s deposition and that question, frankly, was never asked her. She was told, there isn’t much question about this, that Mr. _. -would be expected to take care of all of her legal expenses. In a way, that satisfies the requirement, I think, that a disclosure be made to her that there would be a division of fees.”
We agree with the trial court that the disclosure of a division of fees to the client was not shown by any clear evidence. It is obvious from the testimony of several witnesses, however, that Wife understood that all of her attorney fees were to be paid by her husband as a part of any settlement reached in the case. She was apparently so advised by Carson in their original conversation. She was again advised of this fact at the luncheon meeting where Anderson was employed as co-counsel. It is, of course, usually not feasible at the beginning of litigation for an attorney to advise his client of the exact proportions upon vyhieh the attorney fees are to be divided. That, of course, will depend upon the proportion of the legal services performed and the responsibility assumed by each attorney in the course of the litigation. The rule simply requires that before the client consents to employment of the other lawyer he should be made to understand that a division of fees may be made, that the division is to be made in proportion to the services performed and the responsibility assumed by each, and that the total fee to be paid for all lawyers will not exceed what is reasonable compensation for services rendered. Here the parties agree that the client is not obligated for additional fees to any of the attorneys involved. Since Wife was advised from the beginning of the case that she was not going to be required to pay any portion of the attorney fees out of her own pocket and that the fees awarded by way of settlement in the divorce case would cover all legal services rendered in connection with that litigation, we cannot say that the first requirement was not satisfied. We will thus turn to requirement No. 2 which presents the important issue which has been raised on this appeal.
DR 2-107 requires that a lawyer shall not divide a fee with another lawyer, unless the division is made in proportion to the services performed and responsibility assumed by each. We are convinced that merely to recommend another lawyer or to refer a case to another lawyer and to do nothing further in the handling of the case cannot be construed as performing a legal service or discharging responsibility in the case. The service and responsibility referred to in DR 2-107, before a lawyer is entitled to a division of the fees, must relate to an actual participation in or handling of the case. The rule would be meaningless if this were not so. The word legal “services” is not difficult for the members of the legal profession to understand but the meaning of the word “responsibility” requires careful analysis. In McFarland v. George, supra, the court discussed the meaning of the word “responsibility” under Canon 34 using the following language:
". . . The primary meaning of ‘responsibility’ as found in the dictionaries is the state of being answerable for an obligation. . . . The term ‘responsibility’ includes judgment, skill, ability and capacity. . . . Legal responsibility is the state of one who is bound or obliged in law and justice to do something. . . . ‘One’s duty is what one is bound or under obligation to do. One’s responsibility is its liability, obligation, bounden duty.’ The word ‘responsibility’ as used in the rule means the doing of something. Any other meaning would render the rule meaningless. We agree with the statement of Henry S. Drinker, in his work, Legal Ethics, when discussing the rule at p. 186 . . . : ‘The service and responsibility must, to be effective, relate to the handling of the case.’ If the division of fees is to be placed on the basis of how much service or responsibility each contributed in connection with the legal services rendered in the case, obviously, the responsibility called for under the rule must be related to the legal services rendered in the actual handling of the case.” (Emphasis supplied.) (p. 671.)
In McFarland it was undisputed that the plaintiff performed no legal services and assumed no responsibility in the handling of the will contest which was the litigation involved. The case now before us must, of course, be decided on the basis of its own facts. The issue which we must determine is whether there is substantial competent evidence to support the finding of the trial court that based upon a division of the attorney fees in proportion to the services performed and responsibility assumed by each attorney, the plaintiff Palmer was reasonably entitled to $15,000. We have concluded that the findings of the trial court are not supported by the evidence. In reaching this conclusion, we have considered the following undisputed facts as established by the record:
(1) There was no express agreement between Palmer and any member of the Breyfogle firm that a referral fee was to be paid to Palmer. Any discussion or agreement as to a division of attorney fees between Carson and Martin was based on the assumption of Carsons equal participation in the litigation in the furnishing of legal services.
(2) At the time plaintiff Palmer first discussed the case with Wife he had not been counsel of record in any litigation for a period of five years. He had not actively represented a client in a divorce case in 12 to 15 years and had never tried a divorce case in Johnson county. It is inconceivable that he ever intended to actively participate in the handling of the litigation.
(3) Wife never paid Palmer a retainer nor was a retainer fee ever mentioned by Palmer.
(4) By his own admission Palmer did not actively participate in the handling of the divorce case in any way, shape or form. He did not appear as counsel of record.
(5) The plaintiff Palmer did not become acquainted with Peter Martin until after the divorce case had been completed when the question of a referral fee for Palmer was raised. The divorce case was not referred to Peter Martin by Palmer but by David W. Carson.
(6) Palmer never kept any records' of the time he spent in consultations with Wife. He had no idea how much time he had put into the case. He offered no testimony as to the nature of the legal advice he gave to Wife. According to plaintiff Palmer the conversation with Wife in regard to the client’s dissatisfaction with Martin’s services occurred two or three months after the case was filed. Palmer testified that this conversation brought about the employment of John Anderson as co-counsel. The record clearly shows that Palmer was first contacted for employment on October 29, 1971. Martin consulted with Carson and Wife on the following Sunday evening which would have befen October 31, 1971. The divorce case was filed within two or three days thereafter. The day after the case was filed Carson withdrew from the representation of Wife because of a possible conflict of interest. On November 9, 1971, Martin received a telephone call from John Anderson, Jr. advising him that Anderson had been retained in the case as co-counsel. Anderson’s formal entry of appearance was filed in the divorce case on November 12, 1971. Palmers testimony was that all of his conversations with Wife occurred before the employment of John Anderson as co-counsel in the case with Peter Martin. It does not sustain plaintiff’s position that he provided a supportive role to Wife during the ten months the litigation was pending.
(7) Plaintiff offered no testimony to show the value of his time on a quantum meruit basis such as his customary fees for his services.
(8) The plaintiff Palmer never prepared an itemized statement of services rendered or submitted the same to Martin at any time or to the court at the trial. The only conclusion is there was nothing to submit.
(9) Palmer had no idea how much professional time either the Breyfogle firm or the Hackler firm had spent on Wife’s behalf. He did not seem to be concerned about it. His claim was for one-third of the fee without regard to the services performed or the responsibility assumed.
(10) David W. Carson did not know how much time Palmer had spent in the case nor how much time the Breyfogle firm or the Hackler firm had spent in the case. He likewise was not concerned about it in stating his opinion that the fee for Palmer should be one-third.
(11) It is clear from Wife’s testimony that she considered she was being represented by the Carson firm, not Palmer. She had no specific recollection of conversations with Palmer or the nature of the conversations. She considered any contacts with Palmer as of a friendly supportive nature because of the social relationship between herself and Palmer as fellow trapshooters. She did not consider herself as Palmer’s client and him as her lawyer.
(12) The case was filed by the plaintiff Palmer strictly on the theory that he was entitled to a one-third referral fee as the minimum fee to be paid in cases where forwarding counsel does not actively participate in the handling of the case. Both the original petition and the amended petition were framed on that specific theory. In a letter written by Carson to the Kansas Bar Association advisory committee on ethics, he stated that Palmer as the originating source of the case was entitled to the minimum fee contained in the fee schedules of the Wyandotte County and Johnson County Bar Association to be paid where the referral attorney does not actively participate in the handling of the matter.
On the basis of this undisputed evidence we have no hesitancy in holding that the plaintiff Palmer did not perform any service or assume any responsibility in the divorce case within the meaning of DR 2-107. Plaintiff did not do anything which related to an actual participation in or handling of the case. We reject the concept that “getting the client” is the performing of a legal service or the assumption of a responsibility. We also reject the concept that “trying to keep the client happy” while litigation is in progress, carried out in a friendly supportive way because of a social relationship not related to an actual participation in or the handling of the case, constitutes the performance of a legal service or the assumption of responsibility within the meaning of DR 2-107. The plaintiff here should have been denied relief for the simple reason that there was a complete failure of proof by substantial competent evidence that he performed any services or assumed any responsibility related to the divorce case where the attorney fee was earned. It seems to us that where a lawyer sues his client or anyone else for services rendered, he should have some reasonable idea and be able to state the nature of the services which he performed and the professional time and effort he expended in rendering such services. We would require no less of an artisan or a laboring man who is seeking compensation on the basis of quantum meruit.
For the reasons set forth above we have concluded that this case must be reversed on the appeal. In view of our disposition of the case on appeal it is unnecessary to diseuss the points raised on the cross-appeal. The judgment of the district court is reversed and judgment is rendered in favor of the defendants for their costs. | [
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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 defendant’s motion to dismiss the action for lack of personal jurisdiction in a paternity proceeding brought pursuant to K. S. A. 38-1101, et seq.
At issue is whether an act of sexual intercourse between consenting parties which resulted in the conception and birth of a child in the state of Kansas constitutes “[t]he commission of a tortious act within this state” within the meaning of the long-arm statute K. S. A. 60-308 (b) (2), so as to give the district court personal jurisdiction over the nonresident putative father in a paternity ac tion brought under the provisions of K. S. A. 38-1101 et seq., seeking to adjudge him to be the father of the child and requiring him to support the child.
The action was commenced by the state of Kansas on the relation of Sherry L. Carrington, who alleged she was an unmarried woman and the natural mother of the minor child, Jami Dawn Carrington, bom October 12, 1972, to the plaintiff, and that the defendant was the father of the child.
The defendant, Jerry (Jerome) Schutts, had been stationed at McConnell Air Force Base in Wichita, Kansas, and had returned to his home in Wisconsin prior to the filing of this action. On October 15, 1973, a summons for personal service outside of this state was issued by the district court pursuant to K. S. A. 60-308 (b). Personal service of summons and a copy of the petition was had upon the defendant on October 19, 1973, in the state of Wisconsin.
The action to determine paternity is brought under the provisions of K. S. A. 38-1101 which reads:
“Upon the sworn complaint of any unmarried woman who is pregnant or the mother of a child a civil action to determine paternity may be brought in the district court against the person who is claimed by the woman to be the father of the child. The action shall be in the name of the state of Kansas, on the relation of the complaining witness. The proceedings shall be governed by the code of civil procedure, unless otherwise provided in this article.”
In the event the defendant is adjudged to be the father of the child, K. S. A. 38-1106 provides for an order of support. That statute provides, in part:
“Upon adjudging that the defendant is the father of the child whose paternity is in issue, the court shall make an appropriate order requiring the defendant to provide for the support and education of the child and the payment of the mother’s necessary medical expenses incident to the birth of the child. . . .”
As will be observed, there can be no order for child support until after the defendant has been adjudged the father of the child.
The district court sustained the defendant’s motion to dismiss the action upon the ground a paternity suit is a personal action requiring personal jurisdiction over the defendant and that the process and service of process were insufficient to give the district court personal jurisdiction over him. The plaintiff-appellant concedes that in a paternity action anything short of personal service upon the putative father would be defective, and since he resides outside the state of Kansas, personal jurisdiction over him under the code of civil procedure would have to be acquired under the Kansas long-arm statute.
The Kansas long-arm statute, K. S. A. 60-308 (b) and (b) (2), now K. S. A. 1974 Supp. 60-308 (b) (2), provides in part:
“(b) Any person, whether or not a citizen or resident of this state, who in person or through an agent or instrumentality does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:”
* # <t o *
"(2) The commission of a tortious act within this state. . . .”
The defendant-appellee argues that Section 60-308 (b) (2) is applicable only where the act which forms the basis of the cause of aotion results from the commission of a tortious act; that if jurisdiction under 60-308 (b) (2) lies, it must be based upon a tortious act in this state and that an act of sexual intercourse, with the consent of both parties resulting in pregnancy need not constitute a tortious act; that there can obviously be no duty to support until after a judicial determination of paternity, or an admission of paternity, and it is fruitless to argue whether failure to support — whether it is a pre-existing duty or not — is a “tortious act” where paternity is neither admitted nor adjudicated.
The question before the court is, can the appellee, a resident of Wisconsin, be made to come to Kansas to defend a bare allegation of paternity — which he denies — under a statute allowing long-arm service of process based upon the alleged commission of a tortious act? We think not.
There is a sharp division in the holdings of other appellate courts which have considered the question of jurisdiction in paternity suits brought by a resident against a nonresident putative father.
In Poindexter v. Willis, 87 Ill. App. 2d 213, 231 N. E. 2d 1, the Illinois appellate court found the word “tortious” as used in the Illinois statute, providing that a nonresident who commits a tortious act within that state submits to the state’s jurisdiction, was not restricted to the technical definition of a “tort,” but includes any act committed in Illinois which involves a breach of duty to another. The court held that a man who purportedly fathered a child while in Illinois and then left the state and offered no help in response to the mothers letter, was subject to personal service outside the state, and to the jurisdiction of the Illinois court under the long-arm statute in a proceeding under the states paternity act. In the opinion the court stated:
. . and therefore hold that the word ‘tortious’ as used in section 17 (1) (b) of said Act is not restricted to the technical definition of a tort, but includes any act committed in this state which involves a breach of duty to another and makes the one committing the act liable to respondent in damages. Therefore, in our opinion, the failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the statute and subjects him to the jurisdiction of the Illinois courts under chapter 110, sections 16 and 17 of the Illinois Civil Practice Act.” (pp. 217, 218.)
The supreme court of Minnesota followed a somewhat similar reasoning. In State ex rel. Nelson v. Nelson, 298 Minn. 438, 216 N. W. 2d 140, it was held:
“A nonresident putative father of an illegitimate child bom to a resident mother, the act of conception having allegedly occurred in this state, may be subjected, pursuant to Minn. St. 543.19, to the jurisdiction of a court in this state upon a complaint of fathering and failing to support the child.” (p. 438.)
The supreme court of Tennessee in Gentry v. Davis, 512 S. W. 2d 4 [1974], adopted the holding of tire Minnesota supreme court in the Nelson case, and stated:
“. . . We hold that the allegation in appellant’s complaint, that appellee committed an act in Tennessee which would render him liable for the support of their offspring, is sufficient to confer upon Tennessee courts personal jurisdiction of the appellee, and that the method of service of process provided by T. C. A. § 20-236 is proper in this case.” (p. 6.)
The appellate court of Indiana in Neill v. Ridner, 286 N. E. 2d 427 (1972), stated that personal service of summons was proper under the long-arm statute because of the act of “causing personal injury or property damage by an act or omission done within this state” and that there was “no requirement that the act complained of be a tort as it was known at the common law.” (pp. 428, 429.)
In the instant case, the parties concede the only act specified in any of the nine determinatives set out in K. S. A. 1974 Supp. 60-308 (b), heretofore quoted, which might relate to the subject matter of paternity alleged in the petition, is subparagraph (2) being “[t]he commission of a tortious act within the state.”
The Kansas long-arm statute (60-308) was adopted from the civil code of the state of Illinois and carried with it the construction placed upon it by the supreme court of that state. In Woodring v. Hall, 200 Kan. 597, 600, 438 P. 2d 135, we stated:
“As indicated, this controversy focuses upon 60-308 (b) (1). Except for a few minor changes in language, subsection (b) and subparagraphs (1), (2), (3) and (4) thereof were lifted bodily from the Illinois Civil Practice Act of 1955 (Smith-Hurd, Ill. Annot. Statutes, Ch. 110, § 17), by the committee which drafted our Code of Civil Procedure. The provision was wholly new and was based on ‘the test of due process laid down in Internat. Shoe v. Washington, 326 U. S. 310 90 L. Ed. 95, 66 S. Ct. 154, 161 A. L. R. 1057.' (Smith-Hurd, op. cit., supra, Joint Committee Comments, p. 164.) . . .” (I. c. 600.)
# O # « #
“This court has recognized and applied the rule that a statute adopted from another state carries with it the construction placed upon it by the courts of that state. (McHenry v. Hubbard, 156 Kan. 415, 420, 134 P. 2d 1107.) However, the rule is not absolute and is subject to exceptions not here applicable. . . .” (I. c. 601.)
See, also Barr, Administratrix v. MacHarg, Administrator, 203 Kan. 612, 455 P. 2d 516.
One of the exceptions is noted in State v. Hill, 189 Kan. 403, 369 P. 2d 365, 91 A. L. R. 2d 750, where we stated:
“This court has recognized and applied the rule that a statute adopted from another state carries with it the construction placed upon it by the courts of that state (Bemis v. Becker, 1 Kan. 226; Stebbins v. Guthrie, 4 Kan. 353; Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973; Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590; McHenry v. Hubbard, 156 Kan. 415, 420, 134 P. 2d 1107), but the rule is not absolute and is subject to exceptions. One exception is that the construction of a statute by the highest court of the original state after it is adopted by another has no controlling effect on the adopting state, although it may be persuasive where it is supported by logic and good reasoning. (82 C. J. S., Statutes, § 3173b, p. 867; State v. O’Donnell, 116 Kan. 182, 185, 225 Pac. 1078; McHenry v. Hubbard, supra.) . . (I. c. 409.)
We did not adopt the Illinois long-arm statute with the strained construction more recently placed on the phrase “tortious act” by the Illinois appellate court.
Before the Kansas long-arm statute could become operative in the case now before us, we would have to hold that the act of siring a child is a tortious act committed within the state. The most liberal rules of construction of the phrase “tortious act” would not tolerate the inclusion of an act of sexual intercourse between consenting parties.
Neither can we accept the premise that failure to support is a tortious act within the meaning of the long-arm statute. The father of an illegitimate child has a duty similar to that which is imposed upon the father of a legitimate child but the duty is imposed in those cases of illegitimacy only where the relationship is established by acknowledgment of paternity or the judgment of a court of record having jurisdiction of the case. Thus, failure to support is only an ancillary issue in a paternity case. The real issue for determination is whether the named defendant is the father of the child. We cannot assume the defendant is the father of the child so that he can be found guilty of a “tortious act” in not supporting the child, and thus give jurisdiction to try the paternity case. We prefer the reasoning of the supreme court of Colorado in A. R. B. v. G. L. P., 180 Colo. 439, 507 P. 2d 468, where it is stated in the opinion:
“The primary issue for determination in a paternity case is whether the alleged father is, in fact, the father. In order to make our long-arm statute operative, it would have to be held that the act of siring a child is a ‘tortious act’ committed in Colorado. We have considered the numerous definitions of a ‘tort’ and ‘a tortious act’ and none of them, by the application of the most liberal rules of construction would tolerate the inclusion of an act of sexual intercourse between consenting adult parties, which, in the absence of allegations showing otherwise, is the nature of the act involved in the paternity case.” (pp. 441, 442.)
“Petitioner relies heavily upon Poindexter v. Willis, 87 Ill. App. 2d 213, 231 N. E. 2d 1 (1967) to support her contention that the trial court did acquire personal jurisdiction of the respondent. That case seems to go off on the premise that failure to support was a wrong which the legislature intended to include within the meaning of ‘tortious act.’ But failure to- support is actually only an ancillary issue in a paternity case, where the main question for determination is: Is the respondent the father of the child? If a respondent is found to be the father, then it automatically follows that he has violated his responsibility for support. Therefore, we do not regard Poindexter as a suitable case upon which to rely for a resolution of the issue posed here.” (p. 442.)
We also note Mtr. of Anonymous v. Anonymous, 49 Misc. 2d 675, 268 N. Y. S. 2d 710 (1966), where the appellate court of New York said:
“Obviously, the cause of action at bar did not arise out of the transaction of business or ownership, use and operation of real estate in New York State. If jurisdiction under CPLR 302 lies, it must be based on the commission of a tortious act in this State.
“This proceeding is not one predicated on a tortious act (cf. Hoard v. U. S. Paint, Lacquer & Chem. Co., 44 Misc. 2d 72). An act leading to pregnancy need not constitute a tortious act. Indeed, petitioner indicates the relationship between her and the respondent was voluntary and of comparatively long standing.” (p. 676.)
We conclude the petitioner failed to allege a “tortious act” within the meaning of the long-arm statute and there can be no liability for support of a child born out of wedlock until paternity is adjudicated.
Moreover, and equally compelling to support our conclusion the district court did not have personal jurisdiction in the instant case, is the fact that when the long-arm statute became effective January 1, 1964, the only provision with respect to out-of-state service of summons in a child support case was one where the child was born as a result of a marital relationship. The statute did not provide for out-of-state service of summons in paternity cases. (K. S. A. 60-308 [b] [6], now K. S. A. 1974 Supp. 60-308 [b] [8].)
The long-arm statute was amended in 1971 (L. 1971, ch. 195, § 1) and in 1972 (L. 1972, ch. 221, § 1) by adding other determinatives to give Kansas courts additional grounds for acquiring personal jurisdiction of nonresident defendants for the commission of acts specified in the amendments.
If the district courts of Kansas are to acquire jurisdiction of nonresident putative fathers in paternity actions commenced in this state to establish paternity and to compel support of a minor child, the Legislature should provide for such extraterritorial jurisdiction by proper amendment to our long-arm statute, thus affording the exercise of jurisdiction over such nonresident defendants to the extent permitted by the due process clause of the Fourteenth Amendment to the Constitution of the United States and Sections 1 and 2 of the Kansas Bill of Rights. (Woodring v. Hall, supra.)
Before concluding, we point out the appellant is not without a remedy if she cannot effect service of summons within the state. She may proceed pursuant to the provisions of the Uniform Reciprocal Enforcement of Support Act. (K. S. A. 1974 Supp. 23-476.)
Since the petition did not allege a tortious act committed in Kansas, the district court properly held it lacked jurisdiction over the nonresident defendant by virtue of the service of summons upon him under our long-arm statute.
The affirmance of this case is ordered with the understanding the district court dismissed the action without prejudice to the commencement of a future action. (K. S. A. 60-517.)
Fromme, J., not participating. | [
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Per Curiam:
Defendant (James C. Van Burén) appeals from a finding of guilty for the possession of cocaine. Trial was to the court. The sole issue on appeal is the admissibility of a small glass bottle containing cocaine found in the defendant’s pocket at the time of his arrest.
Don Bramwell, an agent of the United States Drug Enforcement Agency, of Kansas City, Missouri, came to Wichita to arrest the defendant for the sale of cocaine in Denver, Colorado. Bramwell obtained the help of two Wichita detectives, Gary Fulton and Gary Ralston. The three officers parked their automobile across the street from the Lemon Tree Lounge, located at 3300 East Kellogg in Wichita, where defendant was employed. At approximately 10:00 p. m. defendant drove his automobile into the parking lot. The officers drove their automobile into the parking lot next to the Cadillac, which belonged to defendant. The officers identified themselves and Bramwell requested identification from the driver of the Cadillac. After determining from the driver’s license that the individual was the defendant, he was arrested for the sale of cocaine occurring in Denver, Colorado'. Defendant got out of his automobile and was handcuffed and searched by Detective Fulton. The search revealed the glass bottle containing cocaine. Thereafter, the instant charge was filed against defendant.
A jury trial was waived. It was agreed by the parties that the exhibit of white powder taken from the defendant’s pocket was cocaine.
Defendant claims that the warrantless arrest made the attendant search, illegal and fruits thereof should not be received in evidence. Portions of the pertinent statute, K. S. A. 22-2401, provide:
“Á law enforcement officer may arrest a person when:
“(b) He has probable cause to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction for a felony committed therein; . . .”
The validity of defendant’s arrest by Fulton turns on whether Fulton had probable cause to believe that a felony arrest warrant had been issued for the defendant in another jurisdiction.
In State v. Lamb, 209 Kan. 453, 497 P. 2d 275, the meaning of probable cause to arrest was discussed:
“Probable cause to arrest refers to that quantum of evidence which would lead a prudent man to believe that the offense has been committed. . . .
“Probable cause exists where the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. (Carroll v. United States, 267 U. S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 [1925].)” (p. 467.)
See, also, 28 L. Ed. 2d, Annotations, pp. 978, 984, et seq.
Detective Fulton’s knowledge of Bramwell’s status as an officer of the Drug Enforcement Agency and his knowledge of Bramwell’s purpose in coming from Denver to Wichita would warrant a reasonable prudent man in concluding that a felony arrest warrant had been issued in another jurisdiction for defendant. Since Fulton had probable cause to believe that a felony warrant had been issued for the defendant in another jurisdiction; defendant’s arrest was valid (K. S. A. 22-2401 [b]), and the subsequent search of defendant’s person was lawful (K. S. A. 22-2501).
The judgment is affirmed.
Fromme, J., not participating. | [
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Schroeder, J.
Affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by the state. The single issue is whether the trial court erred in discharging defendant because he had not been tried within 180 days after his arraignment.
On June 27,1973, defendant (William R. Sherman) was arraigned upon a charge of theft in violation of K. S. A. 21-3701. Defendant stood mute, whereupon the trial court entered a plea of not guilty upon his behalf. Defendant was then released on bond.
The case was first set for trial on August 13, 1973, but due to a calendar conflict the case was not tried, but was reset for trial on November 19, 1973, at which time 145 days had elapsed since arraignment. There is no dispute that the 145 days between June 27 and November 19 were chargeable to the prosecution. When the case was called on November 19, the state announced ready for trial. Defendant was not present and his counsel asked for a continuance which was granted. On November 28, 1973, defendant appeared in person with counsel and requested that the case be set over until the January term of court. The colloquy between the court, the defendant and his counsel, Mr. Lodge, and the deputy district attorney, Mr. Pierron, which took place at this time is reproduced in the record as follows:
“Mr. Lodge: If the court please, this case was set for trial November 19th. At that time the case was taken off the trial setting and this hearing set today upon the purpose of presenting a formal application to continue this matter until January, and then the specific order that the defendant be present. He is present and I do now make application, a request that this matter be continued for trial until the January term of this court.
“The Court: So you are requesting that it be continued over for any trial setting until on or after January 7 of 1974?
“Mr. Lodge: Correct, Your Honor.
“The Court: I believe the first day of January term would be January 7th, I believe. Do you have any objection to the motion?
“Mr. Pierron: No, Your Honor. The only point I would want the record to be clear on is that 180 days, I believe will run on the 27th of December, and our records indicate that Mr. Sherman was arraigned on the 27th day of June. I would like for Mr. Sherman to specifically state for the record that he is waiving his 180 days.
“The Court: Mr. Sherman, are you aware of the fact that under the law that you are entitled to a speedy trial and which trial would be within 180 days after the date of your arraignment in the event you are out on bond? I want you to understand also that the time would be up — you say December 27th of this year?
“Mr. Pierron: Yes, Your Honor.
“The Court: Therefore, unless you request a continuance the trial must be had before that date, so therefore, if you concur with the request for a continuance the case may be tried after the 7th day of January, and the time during which the continuance is granted will not be counted on the 180 days. Now, do you understand?
“The Defendant: Yes.
“The Court: So you will still be entitled to a trial within 180 days, but the period of time from now until the 7th of January, 1974, would not count in that 180 days. You understand that?
“The Defendant: Yes.
“The Court: That is your request, that the trial be continued over until after the 7 th of January?
“The Defendant: Yes.
“The Court: All right. That will be the order of the court. Counsel prepare the necessary Journal Entry.” (Emphasis supplied.)
The record reveals that the next trial setting was on January 21, 1974. The state appeared and announced ready for trial. The defendant failed to appear, his bond was forfeited and a bench warrant issued. On January 26, 1974, defendant surrendered on his bond. On January 29 the defendant was arrested on the bench warrant and held in jail thereafter.
On February 6, 1974, defendant appeared in person and by his counsel, Mr. Lodge and Mr. Wheeler, and presented a motion to vacate the bond forfeiture which had been rendered on January 21, 1974, when defendant failed to appear.
The Honorable Don Musser, of the Eleventh Judicial District, assigned judge, presided at these proceedings. The pertinent portion of the colloquy between court and counsel appear as follows:
“The Court: I talked to Judge Riggs concerning a setting. He is the Assignment Judge. Of course, the settings have to come through him. He advised that, although I think there may be other cases, that the matter could be set on the 14th or the 19th. Is there any reason why either one of those dates is not satisfactory?
“Mr. Lodge: I will be engaged in other work on the 13, 14 and 15th of this particular week, Your Honor.
“The Court: So we don’t have any problem with time, does the defendant waive any objection to the matter going past the 180 days’ time, due to the circumstances?
“Mr. Lodge: Well, I am not in a position to agree to such a waiver. I didn’t know that the 180 days total time had elapsed. I have agreed on continuing periods, Your Honor. I knew it was very close, but—
“The Court: Well, you are requesting that the matter not be set on the 14th; is that correct?”
In further discussion, Mr. Lodge stated that he would relieve himself of the commitments on the 14th rather than waive any rights of his client. The court then announced a trial setting for February 14,1974.
On February 14 the Honorable Lewis L. McLaughlin of the Twenty-First Judicial District, assigned judge, presided. The state announced that it was ready for trial. Defendant, through his counsel, advised the court that co-counsel, Mr. Wheeler, was ill and requested another continuance. Defendant’s request was granted and the case was reset for February 19, 1974. On February 19 the defendant appeared and moved for a dismissal charging that the state had failed to meet the requirements of K. S. A. 22-3402, in that defendant had not been brought to trial within 180 days after arraignment. The trial court continued the hearing until the following day (February 20), when this motion was sustained and defendant was discharged. This appeal followed.
The terminal dates framing the issue are June 27, 1973, the date of arraignment, and Febuary 14, 1974, when defendant last moved for a continuance. The trial court concurred in defendant’s calculation and assessed 183 days against the state. The state contends that under no theory could more than 178 days be charged to' the state. The state also points out, with emphasis, that 178 days makes no allowance for the rescheduling of the case necessitated by defendant’s absences and his motions for continuances. On appeal the state contends that any delay in bringing the defendant to trial within 180 days was solely a result of the “application” and “fault” of the defendant within the meaning of K. S. A. 22-3402. The state asserts that excluding periods of delay unquestionably attributable to the defendant, the 180 day limitation period of the statute had not elapsed. From our examination of the record we believe the state’s calculation is correct.
As we have previously indicated, the record reveals that the first 145 days (June 27 to November 19, 1973) were chargeable to the state. By reason of defendant’s motion for continuance on November 19, 1973, the period running through January 7, 1974, was chargeable to defendant. The state submits that the trial court’s computation for the month of January was erroneous. We believe the state’s position is supported by the record. In its calculations the court charged 24 days of January against the state — this was calculated as best we are able to ascertain from the trial court’s decision — as 20 days running through January 21 and 4 days for the period January 26 to January 31. The court then charged 14 days of February, running through February 14 to the state, which made a total of 38 days charged to the state in January and February, which added to the 145 days makes a total of 183 days according to the trial court’s calculation.
The trial court erred with respect to the days charged to the state during January 1974. Under no theory could more than 19 days in January be assigned to the state. The record clearly shows that defendant requested a continuance on November 19, 1973, over to the January 1974 term of court commencing on January 7, 1974. The colloquy between court and counsel, set out above, regarding defendant’s request for a continuance to a trial setting in January — not specifically for a setting on January 7. The case was set for trial on January 21, 1974, but defendant failed to appear. Giving the defendant the advantage of the January 7 date this would result in only 14 days between January 7 and January 21, being chargeable to the state. For some unexplained reason the trial court charged the state with 20 days for this period. Since defendant failed to appeal on January 21, when his bond was forfeited, the time running from that date was clearly his fault. Again, giving the defendant the most credit possible by terminating his absence time on January 26, when he surrendered on his bond, only 5 days at most (January 26 to- 31) could be charged against the state. The 5 days for this latter period added to the 14 days from January 7 to January 21, plus the first 14 days of February, totals 33 days which added to the 145 days preceding November 19,1973, totals 178 days.
The defendant’s calculation of 183 days, adopted by the court, does not allow the state any time for redocketing the case when a delay has been caused by defendant’s request for a continuance or his absence on a date set for trial. In the case of State v. Welch, 212 Kan. 180, 509 P. 2d 1125, we addressed the problem that arises where a defendant fails to appear for trial and is subsequently arrested on a bench warrant which necessitates a delay in rescheduling a trial of the case, we said:
“. . . The test to be applied is whether the subsequent delay was the result of the application or fault of the defendant following rearrest on an alias warrant. The state should be allowed a reasonable time to have the trial court reschedule the case for trial. This period should be considered as the fault of the defendant. . . .” (p. 184.)
While the foregoing was not essential to the determination of the issue in Welch and, likewise, is not a basis for our decision here, we think the statement should be kept in mind by a trial court when assessing elapsed time because of the rescheduling of a trial necessitated by the fault of defendant. This is not to say that the state is relieved of its burden in affording an accused a speedy trial. The duty in this regard always rests upon the state and not upon the accused. (State v. Davis, 209 Kan. 225, 495 P. 2d 965; and Sanders v. State, 209 Kan. 505, 496 P. 2d 1394.) Any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of his fault should be limited to a reasonable time measured by the particular circumstances of the case.
Finally, we note that at least four different judges, two of whom were nonresident assigned judges, made rulings with regard to continuances and trial settings in this case. We deem it inadvisable to burden assigned judges, unfamiliar with the state of the docket or the availability of a jury, with the responsibility of scheduling criminal cases for trial.
The judgment is reversed and the case remanded for further proceedings.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Haeman, C.:
Billy G. Sisson was convicted by a jury on two counts of indecent liberties with a child. His motion for new trial was denied, he was sentenced and now appeals.
Count one of the amended information under which defendant was convicted charged that on or about May 26, 1971, he feloniously engaged in the fondling or touching of the person of a female child under the age of sixteen years with the intent to arouse or satisfy his sexual desires in violation of K. S. A. 21-3503 (1) (b). The second count charged that on or about March 13, 1972, the defendant feloniously engaged in an act of sexual intercourse with the same child who was then under the age of sixteen years and who was not his spouse, in violation of K. S. A. 21-3503 (1) (a).
Since a preliminary question of statutory constitutionality presents itself we first quote in its entirety the statute under which defendant was convicted:
“Indecent liberties with a child. (1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
“(a) The act of sexual intercourse;
“(h) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.
“(2) Indecent liberties with a child is a class C felony.” (K. S. A. 21-3503.)
In a case of first impression this court recently ruled that the provisions of (1) (b) are so vague and uncertain that they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process (State v. Conley, 216 Kan. 66, 531 P. 2d 36). This means the judgment and sentence as to count one cannot stand and must be vacated arid it is so1 ordered. However, since the defect found in Conley lay only in the indefiniteness in the language of subsection (b) it is readily apparent that the provisions of (1) (a), under which defendant here was charged and convidted in count two, are completely severable from those in subsection (b) so that the judgment as to that count is not to be set aside upon the ground stated in Conley. It may be further noted that the phrase “act of sexual intercourse” mentioned iri subsection (a) is considerably more specific and unmistakable to persons of ordinary intelligence than the language used in subsection (b), and as well is statutorily defined. K. S. A. 21-3501 provides:
“Definitions. The following definitions apply in this article unless a different meaning is plainly required:
“(1) ‘Sexual intercourse’ means any penetration of the female sex organ by the male sex organ. . .
Upon appeal defendant-appellant does riot challenge the sufficiency of the evidence to sustain his conviction as to count two and consequently our recitation of the evidence will be somewhat limited. The victim in each of the two offenses, whom we shall refer to only as the prosecutrix, was thirteen years of age at the time of the first offense arid was the stepdaughter of appellant. During the time in question she lived in the same home with her stepfather, her natural mother and her five brothers and sisters.
The prosecutrix testified that on the morning of March 13, 1972, she stayed home from school at appellant’s request in order to soak her sprained wrist; while she and appellant were alone in the house the alleged act of sexual intercourse occurred after appellant had first inserted his finger in her vagina. One of her sisters who returned home shortly after the incident testified she found the prosecutrix crying, with “sperm” on her robe, and that the prosecutrix related what had happened. School records introduced by the state indicated the prosecutrix was absent from school on March 13,1972.
Appellant took the witness stand and denied all charges against him. Upon cross-examination he was asked by the prosecuting attorney whether he had had the family participate in a nude dance for him and whether he had taken pictures of his stepdaughters in the nude. Appellant denied that any such incidents had occurred.
On rebuttal the five brothers and sisters testified, over appellant’s objection, that the nude dancing occurred; one of them testified appellant took pictures of the girls in the nude; one brother testified he saw polaroid pictures of his two sisters “without their clothes on or in funny position's”; further that he saw these pictures burned by his mother while appellant was in jail.
Appellant groups his specifications of error under two headings. He first asserts that, over his objection, the trial court instructed the jury in such a manner that appellant was deprived of his sixth .amendment right to testify in his own behalf arid to present witnesses in his own behalf. The basis of this alleged error was instruction No. 11 which stated:
“You are instructed that the phrase ‘on or about the 26th day of May, 1971’ under Count I of the Information and the phrase ‘on or about the 13th day of March, 1972’ under Count II of the Information mean that the alleged criminal act under either count must have occurred at a time within the statute of limitations.
“You are further instructed that the laws of Kansas provide that the statute of limitations shall be for a period of two years from the date of the commencement of an action against a defendant for an alleged criminal act.
“You are further instructed that the action in this case was commenced on the 25th day of July, 1972.”
Appellant’s argument is this: During the course of this proceeding, as reflected in the complaint, an amended complaint, the in formation and an amended information filed therein, four different dates were stated for the times of each of the two offenses; at trial appellant impeached the prosecutrix by producing evidence at variance with the date fixed by her as the time of the fondling offense and also evidence to the effect she had at one time admitted her initial complaint as to that offense was a lie; in its case in chief the state offered evidence as to specific dates and appellant’s, testimony directly repudiated that evidence; the prosecutrix was thus impeached; however, instruction eleven rehabilitated her; the result was the trial court in effect directed the jury to disregard the defense and appellant was thus, deprived of his constitutional right to testify and to present witnesses in his own behalf.
We cannot agree the instruction produced the result asserted. Although the date of the alleged offense was stated in the amended information as being “on or about the 13th day of March, 1972” the state’s evidence specifically fixed March 13, 1972, as the time of its commission. Appellant’s testimony denied committing the offense on that date or upon any other date. The impeaching testimony produced by him was largely directed to the fondling offense alleged in count one. There did exist a discrepancy in the dates as to count two as set forth in the two oomplaints and the two informations which were filed. The first complaint was filed July 25, 1972, more than four months after the date of the commission of the offense as finally fixed by the prosecutrix. Preliminary hearing was waived by appellant. Trial commenced May 19, 1973. Where a prosecution is not commenced promptly after the alleged commission of an offense or the event is not otherwise brought to public notice it is not unusual for uncertainty as to dates to appear particularly where the memories of children are involved.
Appellant here did testify in his own behalf and he produced witnesses who testified. The entire matter of his commission of the offense was aired pro and con before the jury. Appellant offered no evidence by way of alibi in defense of count two. He did not give notice of an alibi under K. S. A. 22-3218 nor did he request that he be furnished a bill of particulars specifying the details of the crime sufficiently to enable him to prepare his defense, as he might have done pursuant to K. S. A. 22-3201 (5). The fact is appellant was content to be tried on the allegation as. contained in the amended information. Only one act of sexual intercourse was charged and shown. Appellee’s evidence showed that act oc curred on the date stated in the information and appellant defended on that basis.
K. S. A. 22-3201 (2) provides in part:
“. . . The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where the time is an indispensable ingredient in the offense.”
Time is not an indispensable ingredient of the offense charged (State v. Snyder, 126 Kan. 582, 270 Pac. 590); hence the instruction complained of correctly stated the law. It did not tell the jury to disregard appellant’s evidence. State v. Jones, 204 Kan. 719, 466 P. 2d 283, presented a situation similar in several respects. There the defendant was convicted by a jury of the offense of statutory rape of his stepdaughter. The offense was eventually alleged to have occurred “on or about or between the 6th day of April, 1968, and the 12th day of April, 1968”. The defendant at trial objected to the indefinite nature of the charge and to a jury instruction encompassing the same indefiniteness. He also produced evidence establishing an airtight alibi as to some of the time period involved. In rejecting defendant’s contention of prejudice in the procedure employed this court stated:
“It has been held where a defendant is not misled or prejudiced in making his defense by the allegation concerning the date of the crime charged, that date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense at any time within the provisions of the statute of limitations.
“In cases of this nature the crucial point is whether the defendant was in any way prejudiced because of the discrepancy in dates or the manner in which the appellant was charged in the information.” (pp. 725-726.)
Appellant here has not contended he was misled in the preparation or making of his defense in that which occurred. His contention that the jury was misled by instruction eleven so as to reject his defense to his prejudice is untenable. Couching it in sixth amendment terms does not add to its validity.
Appellant also contends the trial court erred in admitting the rebuttal evidence concerning nude dancing performed for him by the prosecutrix and her minor brothers and sisters and the taking of photographs of the girls in the nude. He further argues in a supplemental brief filed after he became aware of our decision in Conley that the conviction upon count two should be reversed because the jury which rendered that verdict also heard the testimony as to the fondling and touching of the person which allegedly occurred May 26, 1971, as charged in count one. The evidence on this was to the effect that at the time in question appellant had the prosecutrix perform an act of masturbation upon him. There was further evidence introduced by the prosecution in its case in chief that the same thing had occurred about ten or fifteen times before.
We think the evidence complained of was not improperly considered nor is appellant entitled to a new trial by reason either of the rebuttal testimony or the evidence of acts of masturbation received during the prosecution’s case in chief as to count one. First we should note the trial court did give an instruction to the jury under K. S. A. 60-455 as to this evidence, limiting its consideration to the element of intent. In his points upon appeal and in his initial brief appellant did not complain in any way about the reception of this evidence or the instruction given, evidently being satisfied that under our rules it was admissible as to count one, the fondling and touching offense. The victim was the same and the previous acts were identical. He urges now, however, since that conviction must be vacated in line with Conley that they were so dissimilar as to' require reversal and the grant of new trial as to count two. He makes the same argument as to the nude dancing and photographing.
We cannot agree with appellant’s contentions. Under our recent holdings in State v. Gonzales, 217 Kan. 159, 535 P. 2d 988, and State v. Hampton, 215 Kan. 907, 529 P. 2d 127, each of which was a rape case, there was sufficient similarity in the acts of masturbation, which after all were a form of sexual intercourse, to warrant consideration by the jury of that evidence on the element of appellant’s intent. Although the reception of evidence of nude dancing and photographs is obviously more questionable, we think no prejudice resulted. When the subject was first broached by the prosecution in its cross-examination there was no objection to the questions put to appellant. This may well be taken as a valid assessment of the harmless nature of the evidence.
The judgment as to count one is reversed with directions to vacate the same. The judgment as to count two is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating.
Prager, J., concurs in the result. | [
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|
The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a judgment in an action to recover damages to a tractor and tank trailer which were destroyed by fire while propane was being transferred from the transport to a bulk tank.
Joe C. Baldwin and H. Clementine Baldwin, d/b/a Joe Baldwin Gas Company, were the owners of a bulk propane plant at Anthony, Kansas, and are the defendant-appellees herein.
On May 28, 1969, at 4:30 p. m., Wilbert Thomsen, an employee of Groendyke Transport, Inc., arrived at the defendants’ bulk plant for the purpose of delivering a load of propane. The tractor and tank trailer were leased to Groendyke Transport, Inc., by the owner-plaintiff, Plains Transport of Kansas, Inc., the appellant. Thomsen placed the tank trailer in a position that would allow him to unload the propane into the bulk tank.
In preparing the hook-up for unloading there are four connections to be made — one to the liquid outlet in the bottom of the tank trailer; one on the suction end of the trailer pump; one connecting the bulk tank fluid hose to the discharge end of the trailer pump, and one connecting the bulk tank vapor line hose to the trailer tank vapor line on the bottom of the tank. All of these connections are at least three feet under the trailer tank and in close proximity to each other. After making the connections, Thomsen got back in the truck and started the pump which would unload the liquid propane.
At this point there is a sharp conflict in the testimony. Thomsen testified that while he was in the cab of the truck making out logs and billings, an explosion occurred similar to those he had experienced before when liquid line hoses broke. When he heard the noise, the first thing he did was to turn off the switch on the truck. He was just getting out of the truck when another explosion occurred and the flames came.
A Mr. Swafford testified for the defendants. He was sitting in his backyard across the street east when the accident occurred. He testified:
“A. Well, it’s just about 240 feet there to the big tank and I was sitting facing the west in that chair watching him as I’d do usually when they came in to unload.
“Q. And did you hear any noise of any pounding of anything as you saw the arm swing but before the explosion occurred?
“A. No, sir, I did not.
“Q. And did an explosion occur immediately when the driver got to the vicinity of the place where the connection was made?
“A. Well, he got back in the truck there and when he started the motor up for his pump, it went to leaking there somewhere and he got right out and went around there to where it was leaking betwixt the truck and the big tank.”
« # e a e
“Q. . . . Did he open the passenger side door and move anything from the truck before he went back and the explosion occurred?
“A. Well, he pulled in there like I said and came around on the south side. Then when he hooked up, he got back in that truck and started it up. Then he got back in from the south side. He didn’t go back in around to the north side. He got in from the south side. Then as he started the motor up, she started leaking and spewing out loud that I could hear it over home there, and he got out and he reached back in the truck. He got out on the south side. He reached back in the truck and got something. I don’t know what it could have been in his hand and he went around there to where it was leaking and it was leaking bad by then and he hit something or other. I don’t know what he hit. I wouldn’t say that for sure. And it blew up right there.
“Q. Is that when an explosion occurred for the first time?
“A. Yes, sir.”
The instrument used was a brass hammer which does not cause a spark.
The fire burned extensively for 45-60 minutes. During that period, the fire was coming from underneath the transport tank, shooting in a southerly direction, and then curling over the top of the tank to the north from the effect of a southerly wind. After the 45-60 minute period, the Anthony fire department moved in to control the situation. They permitted the flame fed from the storage tank’s vapor line to bum for about 19 hours for the purpose of bleeding all of the propane gas from the tank.
The case was tried to a jury and a verdict returned in favor of the defendants. The verdict was reduced to judgment and plaintiffs have appealed, raising numerous alleged trial errors.
The appellants first contend the district court erred in denying their motion to consolidate all cases pending before the court having common facts and arising out of the same transaction.
The Kansas Code of Civil Procedure (K. S. A. 60-242) provides that a judge may order a consolidation of actions for trial when actions pending before the court involve a common question of law or fact. The statute uses the word “may,” leaving the matter to the sound discretion of the district court. In Schwartz v. Western Power & Gas Co., Inc., 208 Kan. 844, 494 P. 2d 1113, this court stated the purpose of the statute is to- give broad discretion to decide how cases on the docket are to be tried. The consent of the parties is not required. It is for the court to weigh the saving of time and effort that consolidation would produce against any inconvenience, delay or expense that it would cause.
In the case before us, the district court determined that there were possible complicated issues of law to be raised which were not present in the other cases. It weighed the benefits and possible burdens and denied the motion -to consolidate. We find nothing in the record to indicate the court abused its discretion.
It is next contended the district court erred, as a matter of law, in refusing to admit plaintiffs’ exhibit No. 8 — an inspection and certification record of appellants’ tank equipment. The exhibit was styled National Tank Truck Carriers Suggested Report Form No. 2. The exhibit states: “This is not an official government report form.” Contained in the form is space for the original test date and retest date. The retest date shows 10-68. The form is not signed but indicates no defects found.
The exhibit is reproduced in the record, but there is nothing to show it was ever offered in evidence, and if so, at what stage of the trial. The record shows no authentication of the writing as required. Neither does it show the court’s reason for the refusal to admit the document, if it were offered. The record contains an instrument marked exhibit No. 8 — there is no standard by which we can intelligently review the alleged error. Moreover, there is nothing to indicate where any prejudice could have affected the rights of the appellants. Thomsen testified that the excess-flow valves on the truck had been tested within a week or ten days prior to the incident and had been found in proper working condition. Furthermore, the oral testimony on the point was much more specific in detail than the exhibit. We hold the exclusion of exhibit No. 8, if it were offered, was immaterial error. (Bowen v. City of La Harpe, 89 Kan. 1, 129 Pac. 832.)
It is urged that the district court erred in refusing to submit four special questions requested by the appellants. The point is not well taken. Under the provisions of K. S. A. 60-249 ( h ) -the trial judge is given discretionary powers in the area of special questions. The only argument the appellants make is that the special questions requested were substantial questions dealing with disputed facts. Special questions may be submitted if they are of such a nature, but the discretionary power of the judge still remains. In Thompson v. General Finance Co., Inc., 205 Kan. 76, 468 P. 2d 269, we held:
“Under K. S. A. 60-249 (b) the trial court is given discretionary powers in the area of special questions, and it may refuse to give special questions even though they relate to issues of fact raised by the pleadings or evidence in the case, absent a showing that the trial court abused its power of discretion.” (Syl. ¶18.)
We hold the submission of special questions rests in the sound discretion of the district court. The appellants have failed to show any abuse of such discretion, and our examination of the record discloses none.
The appellants argue the district court erred in failing to give their requested instruction on requirements for safety pressure valves and excess flow valves.
The district court instructed the jury that safety requirements of the state of Kansas require that containers such as the appellants’ tank trailer and the tank at the appellees’ bulk plant, have safety pressure valves and excess flow valves in working condition. The appellants’ requested instruction would only have added specific details as to what might make them work or keep them from working.
The court’s instruction fairly informed the jury that the containers must have working safety and excess flow valves. It was not necessaiy to inform it as to all factors that would prevent them from working. Where the instructions properly advise the jury, the court need not give specific instructions requested. (Novascone v. Knott, 177 Kan. 86, 276 P. 2d 332.)
Plaintiffs assert it was “mandatory” that the district court instruct the jury with respect to either P. I. K. Civil 12.80 or P. I. K. Civil 12.81. The instruction contained in P. I. K. 12.80 is a statement of the doctrine of strict liability providing:
“When a person brings onto his property something which is harmless to others so long as it is confined to his property, but which is harmful if it should escape, he has a duty to prevent it from escaping and is legally responsible for any damage that ensues if he does not succeed in confining it to his own property, regardless of the care exercised.”
We think the instruction was not applicable to the issues in the instant case. The plaintiffs did not plead nor try the issue of strict liability. The instruction of P. I. K. 12.81 describes the duty of care owed by one in possession or control of an instrumentality exceptionally dangerous in character. The district court found the instruction inapplicable because the facts indicated the instrumentality was not being controlled by the defendants at the time of the accident, even if it were to be considered an exceptionally dangerous instrumentality.
The appellants next claim error because the district court refused to give its requested instruction which reads:
“The breach of a duty imposed by the statutory law or by State Fire Marshal rules and regulations constitute negligence per se (as a matter of law) and provide a basis for recovery of damages proximately resulting therefrom.”
It would appear the instruction was not given because there was no substantial evidence that a breach of duty imposed by law or rule was the proximate cause of the accident. The cause of the fire was never disclosed.
The fact that a party violates a safety statute or rule will not make him liable for damages on the basis of negligence per se unless the violation is the proximate cause of the injury. (Maust v. Ioerger, 177 Kan. 558, 280 P. 2d 566; Noland v. Sears Roebuck & Co., 207 Kan. 72, 483 P. 2d 1029, Syl. ¶ 2.)
The question of a violation of an administrative regulation being negligence per se is not squarely presented in the instant case. The plaintiffs did not plead a negligence-per-se cause of aotion, and the pretrial order does not reflect negligence per se was an issue. Neither did the plaintiffs try the case on a negligence-per-se theory, nor make a sufficient presentation for the trial judge to take cognizance of this negligence-per-se theory in that they did not introduce the regulations into evidence, and did not properly request judicial notice be taken of the regulation in compliance with K. S. A. 60-409 (c). Essentially, the district court had nothing before it which justified or required the giving of this instruction. The record discloses no error with respect to the instructions which would justify a reversal of the judgment.
The appellants contend the district court erred in not granting its motion for a new trial because of newly discovered evidence which it contends conclusively proved the defendants’ hose connection prevented the closing of the vapor line excess-flow valves on both parties’ equipment permitting the propane to sustain a continuous flow.
The appellants, in their motion for a new trial, presented no new evidence which could not, with reasonable diligence, have been discovered before the trial.
After the trial, but before the argument on the motion for a new trial, the appellants employed a second expert who ran some tests on appellees’ hose connection which was still attached to the vapor outlet on appellants’ tank transport. It is these fittings which the appellants now contend were defective and prevented the closing of the excess-flow valves. Excess-flow valves are not affected by pressure but only by the rate of flow.
There was nothing disclosed which was not readily apparent before and during the trial of the action. If new trials are to be granted for failure to discover apparent evidence through lack of diligence, litigation might never end.
In Sims v. Schrepel, 208 Kan. 527, 492 P. 2d 1312, we held:
“A second claim of error must be noted. One of the grounds contained in plaintiff’s motion for new trial was that of newly discovered evidence. The motion was supported by an affidavit executed by plaintiff’s counsel to the effect that a witness had been discovered who farmed near the road where the accident occurred and who would testify that on many prior occasions he had seen defendant traveling north on the road at speeds of 100 miles or more. The court’s refusal to grant a new trial on the basis of newly discovered evidence is assigned as error.
“This specification of error must be rejected. In the first place there was no showing that the evidence could not have been discovered with reasonable diligence in time to be used at the trial as required by K. S. A. (now 1971 Supp.) 60-259 (a), Fifth. In State v. Leigh, 166 Kan. 104, 199 P. 2d 504, this court said:
“ ‘The granting or denial of a motion for new trial on the ground of newly discovered evidence rests largely in the sound discretion of the trial court. It must first be shown to that court’s satisfaction that such evidence could not with reasonable diligence have been produced at the trial. . . .’ (p. 112.)
“See, also State v. Collins, 204 Kan. 55, 61, 460 P. 2d 573.” (I. c. 530.)
Other alleged trial errors claimed to require the granting of a new trial are separately discussed herein.
We find no merit in the appellants’ contention the district court erred in refusing to rule, as a matter of law, on the bailment issue raised before the trial. At the pretrial conference, the bailment question was not made a part of the stipulated facts. It was included in the issues to be established in the following language:
"Was there a bailment in effect between Plains Transport Co., Inc., as bailor, and Groendyke Co., Inc., as bailee, such that any negligence of Wilbert Thomsen would not be contributory negligence imputed to bar recovery herein?”
At the time the question was raised, counsel for the appellees insisted there were questions of fact, first, as to whether the Groendyke Transport Company and Plains Transport of Kansas, Inc., were anything more than alter egos set up for the purpose of having the title to the transport in someone other than the owner or the operator. During the trial, the district court determined as a matter of law there was a bailment and so instructed the jury. We find no reversible error.
The appellants next argue the district court erred in striking the doctrine of res ipsa loquitur from the petition and in overruling appellants’ motion to include the doctrine as a theory of recovery in the case.
The doctrine of res ipsa loquitur is a rule of evidence and means, “The thing speaks for itself.” It does nothing more than obligate the defendant to go forward with the evidence. One of the chief elements required for the doctrine to apply is that the instrumentality or thing causing the injury must have been within the exclusive control of the defendant. In Vieyra v. Engineering Investment Co., Inc., 205 Kan. 775, 473 P. 2d 44, we held:
“The doctrine of res ipsa loquitor does not apply when the instrumentality of the thing causing the injury is not within the exclusive control of the defendant.” (Syl. ¶ 2.)
The appellants’ transport tank contained propane gas. The appellees’ storage tank contained some propane gas. The driver of the transport truck moved into the fenced yard where the storage tank was located. He was the only person present. He located the transport tank and made the connections for pumping the propane gas into the storage tank. The driver, a man long experienced in handling propane gas, had complete control of the transport truck and its connections. He had such control over the storage tank as was necessary to make connections with the transport tank and release the valves for receiving the propane into the storage tank. Under the circumstances, we cannot say that the appellees had complete control over the tanks, the connections and facilities.
This court has read and reread the record consisting of 286 pages and has assiduously studied the briefs. We have concluded alleged trial errors such as permitting the appellees’ counsel to pursue a line of questions concerning the “dieseling” effect of propane gas to cause a diesel engine to “run away”; of permitting counsel to examine the appellants’ expert witness, Eldon Means, concerning a letter-report on the fire addressed to appellants’ insurance carrier found in the correspondence file; whether comments made by the district court in the presence of the jury affected the substantial rights of the appellants and was prejudicial to their right to a fair trial, and whether it was error in failing to separate the jury during recesses, resulting in misconduct of the jury in talking to the parties and witnesses during the recesses, have been examined and found to be without substantial merit. (See Smith v. Union Pacific Railroad Co., 214 Kan. 128, 135, 519 P. 2d 1101.) We enter our caveat that no comment or remark should be made by a judge, during the trial of an action, which may tend to excite prejudice or hostility in the minds of the jurors toward one of the party-litigants, or sympathy for the other, but a mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment, and, where a construction can properly and reasonably be given to a remark which will render it unobjectionable, it will not be regarded as prejudicial. (88 C. J. S., Trial, § 49, p. 124.) Moreover, the court advised the jury to' disregard any comments it may have made, and instructions Nos. 3 and 7 warned the jury against considering such remarks in reaching its decision so as to preclude any possible prejudice. See, generally, Fowler v. Shaw, 119 Kan. 576, 591, 240 Pac. 970; Howard v. Jones Store Co., 123 Kan. 620, 625, 627, 256 Pac. 1019; Kinsey v. Farmers State Bank, 132 Kan. 694, 700, 297 Pac. 693, and Gardner v. Farmers State Bank, 128 Kan. 603, 606, 278 Pac. 737.
Time and space require that this opinion be brought to an end. We have carefully considered all of the appellants’ alleged trial errors, whether or not specifically covered herein, and find no errors which would justify the granting of a new trial.
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 interlocutory appeal by the state from an order of the district court sustaining defendant-appellees motion to suppress certain evidence as a result of a search of defendant’s apartment by the police. The state contends the evidence should have been admitted under the “plain view-no search” doctrine.
The record reveals that on the evening of October 19, 1974, Officer Ron Ewing of the Lawrence Police Department was summoned to investigate a noise disturbance at 509 Fireside, Apartment No. 9. Upon arriving at the apartment complex, Officer Ewing was advised by the complainant that the stereo in the apartment directly below him was too loud. Ewing proceeded downstairs to request the occupant to turn down the volume of the stereo. As he was knocking on the sliding glass front door of the apartment he observed through the door what appeared to be a yellow, rolled cigarette lying on a coffee table inside the apartment. It appeared to him to be a marijuana cigarette. When the occupant, defendant Barry Schur, opened the door, Ewing smelled an odor similar to that of burning marijuana. Ewing then identified himself and asked if he could come into the apartment. When defendant refused to admit him, Ewing stated, “Well, I have seen it and smelled it, I think I will come in anyhow.” He then entered the apartment, took a closer look at the cigarette, and noticed another rolled cigarette on the table. He told defendant to place his hands against the wall and seized the two rolled cigarettes. At the same time he saw a small medicine bottle on the table which he examined and found to contain two small pills with crosses on them. Believing the pills to be contraband, he seized them and placed defendant under arrest for possession of marijuana and amphetamines. It was later determined that the two rolled cigarettes were indeed marijuana and that the pills were amphetamines regulated by the Uniform Controlled Substances Act, K. S. A. 1974 Supp. 65-4101, et seq.
On November 14, 1974, defendant was tried and found guilty in the county court, of misdemeanor possession of marijuana and misdemeanor possession of amphetamines. On November 22, 1974, defendant’s notice of appeal was filed. On December 27, 1974, defendant filed a motion to suppress the evidence seized by Officer Ewing. In sustaining the motion the district court concluded:
“. . . [Sjeeing a hand rolled cigarette on an ash tray through the window of an apartment . . . does1 not justify a warrantless entry into and search of the apartment over the objection of the occupant who answered the door on the theory that an odor detected by the officer on the opening of the apartment door led him to believe that the cigarette previously observed might be marijuana.”
The gist of this holding appears to be that no probable cause existed for the officer’s intrusion into the apartment and the seizure of the incriminating evidence. Although we agree with the district court that the evidence was inadmissible, we do so on a different ground. The effect of finding that no probable cause existed at the time of entry into the apartment means that the officer could not have appeared before a proper magistrate and obtained a search warrant based on the information available at that time. We are satisfied, in view of the officer’s familiarity with the appearance and odor of marijuana, that a magistrate acting with proper discretion could cause a search warrant to issue under these circumstances. However, even if probable cause to obtain a search warrant existed, we are not persuaded by the record that there was sufficient justification for a warrantless search of the premises.
It has, long been settled under the Fourth and Fourteenth Amendments to the United States Constitution that a search conducted without a warrant issued upon probable cause is “per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States, 389 U. S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507; see also, Coolidge v. New Hampshire, 403 U. S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022; Schneckloth v. Bastamente, 412 U. S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.) It has been further stated that these exceptions to the warrant requirement have been “jealously and carefully drawn” (Jones v. United States, 357 U. S. 493, 2 L. Ed. 2d 1514, 78 S. Ct. 1253), with the burden of proof being on those seeking to invoke the exception (United States v. Jeffers, 342 U. S. 48, 96 L. Ed. 59, 72 S. Ct. 93). Included in those instances recognized by the Court as justifying a warrantless search and seizure of evidence of a crime are searches incident to a lawful arrest (Agnello v. United States, 269 U. S. 20, 70 L. Ed. 145, 46 S. Ct. 4), and seizure of evidence in plain view (Coolidge v. New Hampshire, supra).
The state relies principally upon the “plain view” doctrine to justify the search and seizure of the contraband. The state’s reasoning is as follows: When the police officer viewed the rolled cigarette in defendant’s apartment, he was lawfully standing in front of a glass door and evidence observed by him in open view would not be the fruit of a search subject to the requirements of the Fourth Amendment. Once the officer observed and smelled what he reasonably believed to be contraband there would un doubtedly be probable cause for the issuance of a search warrant. Since defendant was present at the premises, and refused the officer’s request to enter the apartment, it was reasonable for the officer to force his way into the apartment and seize the evidence. If the officer had not done so, it is likely the evidence would have been destroyed before he could have obtained a search warrant.
In State v. Boyle, 207 Kan. 833, 486 P. 2d 849, we recognized the long-standing rule that objects falling into plain view of an officer who has a right to be in the position to have that view, are subject to seizure and may be introduced into evidence. (See, Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992.) We also noted that looking through a window or glass door does not constitute a search within the meaning of the Fourth Amendment. Nevertheless, the doctrine of “plain view” is subject to certain limitations. Despite the observation of evidence in plain sight and the existence of probable cause, the police are not justified in making a warrantless search and seizure of the evidence in the absence of what is generally referred to as “exigent circumstances.” (Johnson v. United States, 333 U. S. 10, 92 L. Ed. 436, 68 S. Ct. 367; Chapman v. United States, 365 U. S. 610, 5 L. Ed. 2d 828, 81 S. Ct. 776; Coolidge v. New Hampshire, supra; Roaden v. Kentucky, 413 U. S. 496, 37 L. Ed. 2d 757, 93 S. Ct. 2796.) As the Court stated in Coolidge:
“. . . [P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” (p. 468.)
Under normal circumstances the warrant requirement of the Fourth Amendment is to be complied with by the police prior to a search of premises believed to contain contraband or other instrumentalities of a crime. Under our system of justice the decision as to the existence of probable cause is for the impartial magistrate to make and not the police officer investigating a crime. Perhaps no better expression of this principle can be found than in the words of Mr. Justice Jackson, writing for the Supreme Court in Johnson v. United States, supra, wherein he said:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” (pp. 13, 14.)
The state acknowledges the general necessity for a search warrant prior to seizure of evidence in plain view, but it argues the facts of this case bring it within the “exigent circumstances” exception, justifying the officers entering the apartment and seizing the contraband. In particular, the state alleges it was reasonable for the police to conclude from defendant’s conduct that the evidence would be destroyed if he left to obtain a search warrant. This, it claims, is manifested by the fact defendant stepped directly in front of the officer when he answered the door, and refused his request for permission to enter. Under these circumstances, the state contends it was obvious defendant knew the officer was aware of the marijuana and that defendant would destroy it at his first opportunity.
In Roaden v. Kentucky, supra, the Court specified that where there are exigent circumstances in which police action, by seizing of evidence or instrumentalities of a crime, literally must be “now or never” to preserve the evidence of the crime, it is reasonable to permit a search and seizure of the evidence without prior judicial evaluation in the form of the issuance of a warrant. Examining the instant case in light of this standard, we are not satisfied from the record that the officer was faced with a “now or never” situation prior to entry into defendant’s apartment. The refusal by defendant of permission to enter his apartment, and his standing in the doorway, could not properly be considered by the officer as factors creating “exigent circumstances.” These acts by themselves are merely an assertion of his right to the privacy of his premises and to be secure against unreasonable searches and seizures. (See, People v. Gaines, 265 C. A. 2d 642, 71 Cal. Rptr. 468.) Absent a showing of circumstances indicating the likely destruction of evidence, other than defendant’s refusal of entry, the observation of a yellow, rolled cigarette in plain view and the detection of an odor similar to burning marijuana would not authorize a search of the premises without a valid warrant or consent. The correct procedure, in the absence of exigent circumstances when an officer comes upon evidence in plain view, would be the procedure approved by this court in State v. Boyle, supra, and State v. Yates, 202 Kan. 406, 449 P. 2d 575, wherein the police obtained a valid search warrant after viewing the contraband on the defendants’ premises.
We find support for our holding in the factually similar case of Johnson v. United States, supra. There a police officer received information that unknown persons were smoking opium in a certain hotel. The officers went to the hotel and immediately recognized a strong odor of burning opium emanating from the door of the defendant’ s room. When the officers knocked on the door and identified themselves, the defendant opened the door and was placed under arrest. The subsequent search of the premises uncovered the opium and smoking apparatus. In its opinion the Court held that such evidence should have been suppressed as the fruits of an unreasonable search and seizure. It was reasoned that at the time of entry into the room by the officers there was sufficient evidence from which a magistrate might have found probable cause for a search warrant, but it was not such a case in which there were sufficient “exigent circumstances” to justify the failure to obtain a warrant prior to entry. Despite the presence of the defendant in the room with the contraband, the Court concluded no evidence was threatened with removal or destruction and stated, “If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.” (p. 15.)
From the facts presented on the motion to suppress, it is our conclusion that if any exigency existed it was created by the acts of the officer. The fact he viewed a yellow, rolled cigarette through the door of the apartment, and the fact he detected the odor of burning marijuana after defendant answered, normally would not have alarmed defendant to the point where we can reasonably say he would be put on notice that the officer was aware of the contraband within the apartment. It was only after the officer asked for permission to enter the apartment and forced his way in, that it became reasonably certain defendant would have destroyed the contraband if he had not been arrested. Under the circumstances of this case, the “plain view” doctrine did not justify a warrantless search.
The state also seeks to justify the warrantless search of defend ant’s apartment as being incident to his arrest. It argues there was probable cause to arrest defendant and the search of his apartment was contemporaneous with the arrest. In order for a warrantless search to be justified as incident to a lawful arrest, it is necessary that there first be probable cause to arrest the defendant. (Beck v. Ohio, 379 U. S. 89, 13 L. Ed. 2d 142, 85 S. Ct. 223.) K. S. A. 1974 Supp. 65-4127b makes the possession of marijuana a misdemeanor in this state. K. S. A. 22-2401 sets forth the circumstances under which an officer has probable cause to arrest for a misdemeanor, stating that an officer may arrest a person when:
“(a) He has a warrant commanding that such person be arrested; or
“(b) He has probable cause to believe that a warrant for the person’s arrest has been issued in this state or in another jurisdiction for a felony committed therein; or
“(c) He has probable cause to believe that the person is committing or has committed
“(1) A felony; or
“(2) A misdemeanor, and the law enforcement officer has probable cause to believe that:
“(i) Such person will not be apprehended or evidence of the crime will be irretrievably lost unless such person is immediately arrested; or
“(ii) Such person may cause injury to himself or others or damage to property unless immediately arrested; or
“(d) Any crime has been or is being committed by such person in his view.”
We construe 22-2401 (c) (2) (i) as a statutory declaration of the principle of exigent circumstances as hereinbefore discussed. It is therefore required that exigent circumstances exist before an arrest may be made for possession of marijuana. Since we have determined exigent circumstances did not exist under the facts in this case, there was no probable cause to make a warrantless arrest of defendant and evidence seized as incident to such arrest should be suppressed. This would not prevent the arrest of a person for possession of marijuana when such possession is viewed by an officer as provided in 22-2401 (d).
The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
The accident which sired this lawsuit occurred at the intersection of Fulton and Third Streets in Garden City, Kansas, about 11 p. m., August 8, 1972. The plaintiff, Ralph Thomas Herrell, 18 years of age, was riding his Yamaha motorcycle west on Fulton. The 17-year old defendant, Mitzi Carol Maddux, was driving a Chevrolet automobile east on Fulton. As the defendant was making a left turn at the intersection, the two vehicles collided, and plaintiff’s left leg was severely injured.
In answer to special questions submitted, the jury found both drivers guilty of negligence “in failing to keep a proper lookout.” The trial court approved the special verdict and entered judgment in favor of the defendant. The plaintiff has appealed.
The principal point on appeal concerns the trial court’s ruling permitting the defendant to amend her answer after both sides had rested. It happened like this: In their respective pleadings, plaintiff and defendant accused each other of negligent acts which proximately caused the accident. After a pretrial conference was held, the court entered a pretrial order stating the contentions of each party. The order stated that the plaintiff contended the collision was proximately caused by defendant’s negligence in (1) making a left-hand turn directly in front of him, (2) failing to keep a proper lookout and (3) failing to keep her vehicle under proper control, while the defendant, on the other hand, contended the collision was proximately caused by negligence on the plaintiff’s part in driving at a high and dangerous rate of speed and a speed so high he could not keep his motorcycle under proper control. The pretrial order concluded with the following paragraph:
“This pretrial order shall supersede all pleadings and shall control the subsequent course of this action and shall not be modified except by the order of the Court on its own motion or on motion by a party to prevent manifest injustice.”
After all the evidence had been introduced and both parties had rested, each moved for a directed verdict. Both motions were overruled. The record then reflects that “in informally considering the instructions” the defendant “discovered that the pretrial order does not contain an allegation of contributory negligence with regard to the failure [of plaintiff] to keep a proper lookout.” Defense counsel requested the pretrial order be amended to include that as “one of the grounds of negligence for [the] defense.”
To this request the plaintiff strongly objected, but to no avail. The judge observed that in the interest of fairness he would have to permit the amendment which would cause a change in instruction No. 2. In this posture the case went to the jury and, as we have heretofore said, the jury found both litigants guilty of failing to keep a proper lookout.
K. S. A. 60-216 relates to pretrial procedure. It provides in effect that the pretrial order shall control the subsequent course of the litigation unless the same is modified by court order to prevent manifest injustice. Speaking on the force of a pretrial order this court, in Evangelist v. Bellern Research Corporation, 199 Kan. 638, 641, 433 P. 2d 380, spoke as follows:
“The purpose and effect of a pretrial order is clearly defined by the statutory and decisional law of this state. As stated in Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912:
“ ‘The pretrial conference provided for by K. S. A. 60-216 has become an important part of our procedural process designed, among other things, to acquaint each party in advance of trial with the respective factural contentions of the parties upon matters in dispute, thus reducing the opportunity for maneuver and surprise at the trial, and enabling all parties to prepare in advance for trial. . . . Orders entered at pretrial conference have the full force of other orders of court and they control the subsequent course of the action, unless modified at the trial to prevent manifest injustice (K. S. A. 60-216). . . .’ (p. 519.)” (p. 641.)
See, also Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 745, 746, 457 P. 2d 1 and Apperson v. Security State Bank, 215 Kan. 724, 528 P. 2d 1211.
In Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 300, 440 P. 2d 548, we said that under K. S. A. 60-216 the pretrial order entered by the court in that case “in effect, may be said to have superseded and replaced the pleadings.” It is generally accepted that a pretrial order which specifies the issues to be tried supersedes the pleadings in such respect. (In re Estate of Wurtz, 214 Kan. 434, 520 P. 2d 1308.)
A few cases have come our way relating to the amendment of pretrial orders. In Tillotson v. Abbott, 205 Kan. 706, 472 P. 2d 240, we upheld the trial court in refusing to allow defendant to amend the pretrial order, at the commencement of trial, by adding an additional ground of defense. We said the trial court has discretion to allow or refuse modification of the pretrial order and its ruling should be upheld absent an abuse of discretion. Similarly, in Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 358, 437 P. 2d 219, we sustained the trial court in overruling plaintiff’s motion to amend his pleadings, during trial, to include res ipsa loquitur, a doctrine not enumerated in either the petition or the pretrial order. On the other hand, in Commercial Credit Corporation v. Harris, 212 Kan. 310, 312, 510 P. 2d 1322, we upheld a ruling made by the court permitting defendant to amend her answer under K. S. A. 60-215 (b) four days before trial, by raising an affirmative defense.
However, we have had no occasion to deal with a situation like the one before us now, that is, where the request to amend in a substantial respect came after all parties had rested and instructions had been prepared. Under all the attending circumstances we believe the court erred in permitting the amendment.
The discretion granted the trial court to permit modification of the pretrial order is in the interest of preventing manifest injustice. So far as the present record is concerned, the defendant made no showing of injustice which was manifest or obvious when she moved for the amendment. The shoe of prejudice, in fact, better fit the plaintiffs foot. The sole bit of evidence bearing on plaintiff’s failure to maintain a proper lookout came from defendant’s 18-year-old brother, Michael, one of five passengers in her car. He was undoubtedly available to the defendant’s capable counsel, who surely must have known of Mike’s story long before trial date and who certainly should have been familiar with the contents of the court’s pretrial order. The plaintiff, on the other hand, could hardly have anticipated or been prepared to meet a brand new ground of defense, raised after all the evidence was in.
What was said in Schmidt v. Martin, 212 Kan. 373, 510 P. 2d 1244, is deemed appropriate to the situation at hand. In Schmidt, the plaintiffs, husband and wife, sued for the death of their young son, killed in a collision while riding with an uncle with whom he had been left for a short time. At the trial, the driver of the other car was permitted to introduce evidence calculated to establish contributory negligence on the part of the parents in leaving their son with an unsafe driver, the uncle. This defense had not been set out in the pretrial order. After all the evidence was introduced and both parties had rested, the trial court permitted the defendant to amend his answer by adding the new defense.
In the opinion remanding the case for a new trial Mr. Justice Prager, in speaking for the court, said this:
“. . . The plaintiffs complain . . . that permitting the defendant to make this late amendment by adding the affirmative defense seriously prejudiced their rights by denying the plaintiffs an opportunity to meet the issue since both of the parties had presented all of their evidence and had rested when the amendment was allowed. We are inclined to believe that the plaintiffs’ point is well taken. Plaintiffs were entitled to know at the pretrial conference whether or not the issue of the contributory negligence of the parents in the selection of a custodian was an issue in the case.” (pp. 379, 380.)
The defendant suggests that plaintiff has shown no prejudice. We are not prepared to say that after a litigant has prepared and presented his case relying on the issues set out in the pretrial order, a last minute switch in his opponent’s' position after the parties have rested, may not be prejudicial to his cause. A careful lawyer plans his trial procedure ahead of time — the sequence in which to present his evidence, the examination and cross-examination of witnesses, the points to stress and the pitfalls to avoid. In other words, he works out a “game plan” and any attempt to counteract a new issue dragged into the case at the eleventh hour may well work to his disadvantage. In objecting to the amendment at the time it was requested, plaintiff’s counsel said it would re-emphasize one isolated fact, and this we cannot gainsay.
The plaintiff has also contended, as another point on appeal, that the trial court erred in overruling his motion for directed verdict. This point lacks merit. While the negligence of defendant may be said to have been clearly established, there was also some evidence from which the jury could find negligence on the part of the plaintiff.
Other points raised are not considered in view of our remand of the case.
The judgment of the court below is reversed with directions to grant a new trial.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
Andrew L. Stephenson, Jr., has appealed from a jury conviction of burglary and attempted theft. He alleges (1) that his arrest was illegal, (2) that a detective’s opinion as to his guilt was erroneously admitted into evidence, and (3) that the trial court erroneously dealt with his confession.
At approximately 1:00 p. m. on January 6, 1974, the defendant was discovered in a basement stairway of a residence hall at the Kansas state teachers college of Emporia by Agnes Kirk, the hall director. The hall had been closed for the holiday season and all doors chained except one.. That door was locked and could be opened from the outside only with a key. Mrs. Kirk knew the defendant, and inquired of him how he had gained entrance;, he pointed out a door and claimed that he had entered there. She told him that was impossible because that door was chained and asked him to leave; he did. Mrs. Kirk promptly reported the encounter to the Emporia police, and signed a municipal court complaint charging him with trespassing. Later the same day Mrs. Kirk asked the security man for the building to check to see where the defendant had entered. This investigation disclosed a broken window in the basement laundry room and a crowbar inserted into a cigarette machine. There were tracks in the snow leading to the broken window and none leading away. Later investigation by police disclosed no legible fingerprints on the window, the cigarette machine or the crowbar.
On January 10, 1974, the defendant was arrested on the city’s misdemeanor trespass charge and brought to the police station. After being informed of his constitutional rights, he was interviewed by two detectives. During that interview he admitted that he broke into the building and attempted to break into the cigarette machine with the crowbar. The present charge, conviction and appeal followed.
Defendant’s illegal arrest claim stems solely from a discrepancy in dates appearing on various documents in the county court records. An affidavit by the sheriff and his official return on the warrant both indicate that the warrant was issued to and received by the sheriff on January 10. That was the day of the defendant’s arrest, and the date counsel was appointed for him in the county court. The warrant itself, founded upon a complaint signed by the assistant county attorney, bears the date January 11. An affidavit of Detective Larry Blomenkamp detailing Mrs. Kirk’s encounter with the defendant and the results of the police investigation, ostensibly made in support of the complaint and to induce the issuance of the warrant, is also dated January 11. No explanation for these discrepancies appears in the record, the briefs, or the arguments of counsel.
K. S. A. 22-2302 requires that a magistrate find probable cause based upon a complaint or affidavits filed with the complaint before issuing a warrant. Defendant’s argument is that the Blomenkamp affidavit was made the day after the warrant was received by the sheriff, and therefore could not have provided a basis for the necessary finding of probable cause. Therefore, he continues, his arrest was illegal and his subsequent conviction was invalid.
There are several things wrong with this argument. First, he does not explain how he could have been arrested and counsel appointed for him on January 10 if the warrant was in fact issued January 11. It seems much more likely that the January 11 date appearing on the warrant — admittedly in existence on January 10— and on the supporting affidavit were both typographical errors. The record is simply too scanty for us to conclude that the warrant was in fact issued without a finding of probable cause. Second, even assuming his arrest was “illegal,” he has demonstrated no prejudice which would affect his conviction. An illegal arrest, standing alone, is not enough. See, State v. Giddings, 216 Kan. 14, 17, 531 P. 2d 445, and cases cited therein. Additionally, the record discloses no effort to raise this point at the trial level, and we cannot consider it for the first time on appeal.
Defendant’s second claim of error, as set out in his statement of points, is that “It was error to receive testimony of Dennis Bell that in his opinion the defendant placed the crowbar in the cigarette machine.” In his brief defendant puts his contention this, way: “The opinion testimony of Detective Dennis Bell went to the ultimate fact at issue and should have been excluded.”
From the briefs it appears that during the cross-examination of Detective Bell, defendant’s counsel inquired of him, “based upon the facts that you [e]licited as the result of your investigation, do you have any reason to believe that Andrew Stephenson on the 6th day of January, broke that window in Morse Hall and entered there?” An objection by the state to this question as being oonclusionary was overruled and the detective’s answer was “no.”
Upon redirect examination the state took the inquiry into Bell’s opinion one step further and asked, “Based upon the entire investigation that you and the Emporia Police Department made, do you have an opinion as to whether or not Mr. Stephenson placed that crowbar there?” At this point the defendant objected to the question because “The entire investigation is not yet in evidence, and that would be based upon a hypothesis not before the Court and jury at this time.” The court, noting that the defendant had “initiated [the issue] on cross-examination,” permitted the detective to answer. His response was, "Yes, I believe that he [Stephenson] did.”
It may be seen that defendants present contention (that the question embraced the ultimate issue) is far different from his objection at trial (that there was no proper foundation). He is thus precluded from raising his present contention by our contemporaneous objection rule. K. S. A. 60-404; State v. Shepherd, 213 Kan. 498, 516 P. 2d 945. As to the merits of an objection based solely on a claim that an expert’s opinion embraces the ultimate issue, see K. S. A. 60-456 (d).
In any event, the trial court correctly ruled that the defendant broached the subject of - Detective Bell’s opinion by his original question on cross-examination. Once the door was open the prosecution was free to enter and explore. See, State v. Stokes, 215 Kan. 5, 523 P. 2d 364; Dewey v. Funk, 211 Kan. 54, 505 P. 2d 722; State v. Pappan, 206 Kan. 195, 477 P. 2d 989; Frame, Administrator v. Bauman, 202 Kan. 461, 449 P. 2d 525. The scope of that exploration was largely within the discretion of the trial court. State v. Morris, 208 Kan. 464, 493 P. 2d 274. We find no abuse of discretion here.
The defendant’s final claim of error, although somewhat difficult to decipher, deals with his confession. In his statement of points on appeal the defendant states that “It was error to receive testimony of [detectives] Larry Blomenkamp and Ron Davis as to defendant’s pre-trial admissions allegedly made on January 10, 1974.” After a pretrial hearing on defendant’s motion to suppress the trial court overruled the motion and found that there had been “no coercion, threat or trickery involved.” Defendant concedes that he was fully advised of his rights before the interrogation and signed a written waiver. He contends, and the state disputes, that the matter of the burglary came up- only after he signed the waiver. Whichever version is correct, he was advised and said he understood that, even after the waiver, he would “have the right to stop answering at any time.” Even his version would not render the confession ipso facto involuntary.
The question set out in defendant’s brief, however, does not deal with the fact of voluntariness. He commences his argument on this point by saying that “The court failed to properly instruct the jury concerning police officers’ testimony regarding defendant’s alleged confession.” The instruction complained of is not in the record, nor is any objection to it nor any requested instruction. We are therefore unable to pass on the merits of the instruction as such. Hall v. High, 214 Kan. 489, 520 P. 2d 1283. And cf., State v. Scott, 210 Kan. 426, 502 P. 2d 753. Further, as will be pointed out, a jury instruction on voluntariness is really unnecessary.
If we cut through the procedural difficulties in reaching defendant’s position, we find that he is urging us to hold that the voluntariness of a confession must be shown ‘beyond a reasonable doubt” before it may be admitted into evidence. In addition, he says, after admission the jury should be instructed that it must make the same finding before it may consider the confession. The United States Supreme Court has only recently rejected these contentions in Lego v. Twomey, 404 U. S. 477, 30 L. Ed. 2d 618, 92 S. Ct. 619. In that case the Court found that the pretrial determination of voluntariness required by Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774, 1 A. L. R. 3d 1205, need only be by a “preponderance of the evidence,” despite the ‘beyond a reasonable doubt” standard for determining ultimate guilt required by In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068. It formulated the rule thusly:
“To reiterate what we said in Jackson: when a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. Thus, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary.” (404 U. S. at 489.)
While the court in that case expressly left the states free to impose a higher standard of proof if they chose, it went on to hold that the issue of voluntariness need not be submitted to the jury for its redetermination once the trial judge has made a finding of admissibility. This is in accord with our own practice, firmly established at least since State v. Milow, 199 Kan. 576, 433 P. 2d 538. We there said:
“Under Kansas law, after a confession is admitted into evidence as being voluntary, the question of voluntariness is not open for the jury to consider, and a trial court does not err in refusing to give an instruction on the issue of voluntariness. (State v. Robinson, 182 Kan. 505, 322 P. 2d 767; and State v. Freeman, 195 Kan. 561, 408 P. 2d 612, cert. den. 384 U. S. 1025, 16 L. Ed. 2d 1030, 86 S. Ct. 1981.) The trial court has a duty, however, after deciding that a confession has been voluntarily made, and admitted into evidence, to instruct the jury that it should consider the truth or falsity of the confession along with the other evidence in the case (State v. Seward, [163 Kan. 136, 181 P. 2d 478]), and evidence bearing upon the credence to be given a confession is admissible. (K. S. A. 60-408.)” (199 Kan. at 589.)
In Milow we recognized a practice which is fair, workable, and affords to a defendant those rights guaranteed to him by our constitution. It requires a positive judicial finding of voluntariness, based on a preponderance of the evidence. We see no occasion to establish a different standard or procedure at this time.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal by the State Bank of Oskaloosa (intervenor-appellant) from an order of the district court of Atchison County, Kansas, denying its right to recover proceeds from the sale of collateral in which the Bank had a perfected security interest. The issue is whether a secured party with a perfected security interest in collateral has an interest in the proceeds superior to that of a lien creditor who levied on the proceeds dining the ten-day period of temporary perfection provided by K. S. A. 84-9-306 (3).
On May 5, 1970, the Bank entered into a security agreement with the defendants, Edward and Jean Wehrkamp, to secure indebtedness of defendants in the amount of $4,250. The security agreement covered certain farm equipment,' hogs, sheep, calves, and rabbits. The same day the Bank took a financing statement from the Wehrkamps on all hogs, equipment, and machinery then owned or thereafter acquired. On May 6, 1970, the Bank filed the financing statement in the office of the register of deeds of Jefferson County, the county of residence of the Wehrkamps. Although this instrument included a proceeds box which could be checked, this was not done.
Shortly thereafter (the date not appearing), the Wehrkamps moved to Atchison County, and during this period the Bank advanced them additional funds. Two payments were made on their indebtedness, but in December of 1970 the Wehrkamps were unable to make further payments and they agreed with the Bank to sell their livestock and machinery to pay their debt. The sale was duly advertised and was held on December 13, 1970, at their residence in Atchison County.
Prior to the sale, on December 10, 1970, Blair Milling & Elevator Company, Inc. (plaintiff-appellee), procured a default judgment against the Wehrkamps in the district court of Atchison County on a promissory note in the amount of $2,821.28. Execution was issued on the judgment on December 13, 1970, and the sheriff of Atchison County levied on the proceeds of the sale. After deducting the expenses the net amount of the sale proceeds was $1,809.08.
The Bank learned of the attachment of the proceeds the next day and on December 21, 1970, filed a motion to intervene in the case of Blair Milling & Elevator Co., Inc. v. Edward J. Wehrkamp and Jean A. Wehrkamp. Along with its motion, the Bank included a petition and a copy of the original security agreement and financing statement. The Bank’s petition alleged all or part of the funds attached by the sheriff and held by the court were subject to a prior and superior perfected security interest in the Bank. In its prayer for relief the Bank requested that the sale proceeds be held by the sheriff until further order of the court, that the court order an accounting to determine the sources of the proceeds of the sale, and that the court order the sale proceeds from the collateral in which the Bank had a security interest paid to the bank.
Blair Milling filed an answer admitting some or all of the personal property listed in the security agreement and financing statement was sold at the Wehrkamps’ sale and alleging the sheriff had attached the proceeds to satisfy its earlier judgment. Blair Milling specifically denied the Bank had a perfected security interest in the proceeds or that the Bank’s interest was superior to its interest.
The court held the Bank did not have a prior security interest in the proceeds from the sale by virtue of its failure to check the proceeds box of the security agreement or to refile its financing statement in compliance with K. S. A. 84-9-306.
The Bank relies on the provisions of K. S. A. 84-9-306 ( 2) and (3) as support for its claim that it held a perfected security interest in the proceeds. Subsection (2) provides that a security interest continues in any identifiable proceeds. Under subsection (3) the security interest in proceeds continues to be perfected for ten days after receipt of the proceeds by the debtor if the original interest was perfected. That subsection provides that the security interest becomes unperfected after the expiration of ten days unless the original financing statement also covers the proceeds, or unless the secured party takes steps within ten days to perfect its interest in the proceeds by filing a financing statement covering the proceeds or by taking possession of them.
In this case the Bank took neither of these steps within the ten-day period of temporary perfection, and Blair Milling contends this resulted in the lapse of the perfected security interest. The Bank argues the filing of the motion to intervene within the ten-day period of temporary perfection constitutes sufficient compliance with 84-9-306 ( 3) to give it a perfected security interest in the proceeds superior to the interest of Blair Milling.
K. S. A. 84-9-306 contains no provision for determining the priority of a temporarily perfected interest and a judgment creditor who levies execution on the secured property prior to' the lapse of the temporary period. 84-9-301 (1) (b) provides that an unperfected security interest is subordinate to the rights of lien creditors who acquire their liens without knowledge of the prior security interest and before the interest is perfected. It logically follows that a perfected security interest would not be subordinate to rights of such lien creditors.
We deem it appropriate to approach the instant problem by analogy to the law developed under our pre-Code chattel mortgage cases. Prior to the adoption of the Uniform Commercial Code, former K. S. A. 58-303 (enacted L. 1959, ch. 239, § 1, and repealed L. 1965, ch. 564, § 416) required a renewal affidavit of mortgage to be filed within thirty days preceding the expiration of five years from the date of the filing of a chattel mortgage. (G. S. 1868, ch. 68, § 11, required a filing after one year; L. 1903, ch. 364, § 1, required a filing after two years.) Our cases construing this statute were consistent in holding that a purchaser or mortgagee who becomes such before the expiration of the first filing does not gain priority by the mortgagee’s failure to renew his affidavit in time, and he must take his interest or lien as it stood when he acquired it. (Fourth National Bank v. Hill, 181 Kan. 683, 314 P. 2d 312; Howard v. National Bank, 44 Kan. 549, 24 Pac. 983; State Bank v. Kuhnle, 50 Kan. 420, 31 Pac. 1057; Farmers’ Bank v. Bank of Glen Elder, 46 Kan. 376, 26 Pac. 680.) The only effect of a failure to file an affidavit of renewal is to render the chattel mortgage invalid as against pm*chasers, mortgagees, or creditors who acquire an interest in, or liens on, the property after the time for filing the renewal affidavit. We find support in the following from Howard v. National Bank, supra:
“The object of the statute requiring this affidavit to be made was to keep the public informed from time to time as to- the condition of the title of incumbered personal property, and to furnish some reliable record evidence by which parties might be guided in dealing with such property. This statute, by its terms, can only be invoked by subsequent purchasers or mortgagees in good faith; that is, by those who become such after the period at which such affidavit should have been made. And creditors of the mortgagor manifestly cannot claim the benefit of its provisions when their claims are asserted, before the expiration of the time prescribed. The plaintiff, however, is neither a subsequent purchaser or mortgagee, nor is he a creditor. It is true he claims through those who were creditors of the mortgagor, but those creditors had asserted their claims, and he had purchased from those claiming under the proceedings instituted by them, while the mortgage was undoubtedly valid, and before any affidavit was required to be filed. The plaintiff having acquired his rights and brought his suit while the mortgage was a valid and subsisting incumbrance against him and those under whom he claimed, his right to recover cannot be aided by the subsequent failure of the defendants to make the affidavit required by law. The rights of the parties had become fixed before the default occurred. . . .” (p. 556.)
The time of the levy of execution fixes the rights of creditors, and if the execution is levied before a chattel mortgage lapses, the creditor s hen is junior to the mortgage. Again, we find support in Howard:
“. . . He who purchases after the year has expired during which a mortgage remains in force, has a right in the absence of the renewal affidavit to suppose the mortgage has been paid, even though not released on the record. But he who purchases before the year expires, takes with notice of the mortgage and the rights of the mortgagee under the same. If, therefore, the mortgagee fails at the end of the year and within the time prescribed by the statute to file his renewal affidavit, the purchaser is not affected adversely by the failure to file the affidavit, though the lien of the mortgage as to him remains intact, (p. 552.)
When Blair Milling levied execution upon the proceeds from the sale of collateral it had notice of the perfected security interest filed by the Bank. By virtue of 84-9-306 (3) the perfected security interest continues in the proceeds for a period of ten days. Blair Milling is charged with constructive notice of such interest.
We recognize this approach under our pre-Code chattel mortgage law is inconsistent with the official U. C. C. Comment No. 3 to 84-9-403 (2). The code draftsmen take the position that after a lapse the interest of the secured party is subject to defeat by those persons who take priority over an unperfected security interest under 84-9-301 and holders of a perfected conflicting security interest under 84-9-312 (5), even though before lapse the conflicting interest was junior.
The Kansas Comment on 84-9-403 ( 2) correctly points out, however, that such an interpretation would be contrary to the law of this state as developed in chattel mortgage cases. Consequently, in the absence of a specific statutory provision displacing the prior law of this state, 84-9-403 (2) must be read to be consistent with the pre-Code law as applied to chattel mortgages, and the rights of creditors’ conflicting interests in collateral are therefore fixed at the time of the levy.
Viewing the present case in light of this rule, we hold that at the time Blair Milling levied upon the proceeds it had notice of the existing perfected security interest held by the Bank, and pursuant to the provisions of 84-9-306 (3) this perfected security interest continued temporarily in all identifiable proceeds received by the debtor. This being true, the Bank had an interest in the proceeds superior to that of a judgment lien creditor, which would not be affected by the Bank’s failure to prevent the perfected security interest from lapsing after the expiration of the ten-day period.
Recognition should be given to the amendment of 84-9-403 ( 2) (effective January 1, 1976), passed by the 1975 Kansas legislature. That subsection has been amended to provide:
“. . . If the security interest becomes unperfected upon lapse, it is deemed to have been unperfected as against a person who became a purchaser or lien creditor before lapse.”
This case arose before the effective date of the foregoing amendment. If the amendment is contrary to our holding herein, we cannot in fairness to the parties in this action give it any consideration except to mention its existence, which we have done.
The judgment of the lower court is reversed with directions to determine what portion of the sale proceeds resulted from the sale of the collateral covered by the Bank’s security interest. So determined, judgment should be entered in favor of the Bank in that amount.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages for personal injuries sustained by plaintiff and for the death of his wife and for the destruction of his automobile in a collision with defendants’ passenger bus' on a public street and highway in the outskirts of Lawrence.
The locus in quo was as follows:
Seventh street in Lawrence, otherwise’ known as U. S. highway 40, runs north and south in the eastern part of North Lawrence. Lyons avenue runs east and west, about two blocks north of the Union Pacific main line and parallel with the railway tracks. Lyons avenue is a dirt street of usual width; Seventh street, or U. S. 40, is paved with an 18-foot concrete slab, with dirt shoulders five to seven feet wide on each side. The ground thereabout is level. On the east side of Seventh street is a slight depression for drainage, not deep enough to be called a ditch.
On a bright Sunday afternoon, July 13, 1930, defendants’ passenger bus was proceeding northward on Seventh street on its regular intercity schedule. It had halted south of the railway, then crossed, gaining speed as it proceeded along the next two blocks. At the same time plaintiff’s Dodge sedan, followed by three other cars, was proceeding southward, the Dodge in the lead. In the Dodge were plaintiff, Charles E. Leinbach, and a Mr. Stickel in the front seat, and plaintiff’s wife and Mrs. Stickel in the rear seat. As the Dodge approached the intersection of Seventh street and Lyons avenue a Ford roadster carrying three young people came from the west and collided with the Dodge, causing it to whirl around and head towards the north on the east side, of the slab, right in the path of the oncoming bus, which crashed into it. The Ford broke a wheel and landed on its side near the southeast corner of the intersection and caught fire. The occupants of the Ford were not seriously injured. Mrs. Leinbach and Mrs. Stickel were killed outright; Mr. Stickel died shortly afterwards, and the plaintiff Leinbach was severely, variously and painfully injured. His Dodge sedan was virtually destroyed.
This lawsuit was brought against the proprietor of the bus and its driver Thompson, seeking to hold them responsible for the consequences which followed the double collision.
Plaintiff’s petition gave his version of the facts at length. His cause of action was predicated on the theory that the effects of the collision between the Dodge and the Ford had ceased before the collision between the bus and the Dodge, and that the latter collision could have been avoided if the driver of the bus had promptly applied his brakes when he first saw, or could have seen, the Dodge in the path of danger ahead of him. Plaintiff’s charges of negligence against defendants were—
(a) Failure to turn the bus aside to avoid striking the Dodge;
(b) Failure to slacken speed and to bring the bus to a stop before the collision;
(c) Excessive speed, to wit, forty miles per hour;,
(d) and (e) Operating bus at higher speed than permitted by city ordinance ;
(/) Defective brakes on the bus;
(g) “The defendants were negligent in that the defendant Orville L. Thompson and the defendant Pickwick Greyhound Lines, Inc., through Orville L. Thompson, their agent, in charge of said bus, at the time of and for a long time before the time of the collision between the bus and the Dodge sedan, negligently failed to observe and comprehend the situation ahead of them, and the danger impending over the occupants of the Dodge sedan arising from the fact that the bus was driving rapidly toward the Dodge sedan while the same was in a position of peril from which the plaintiff and his wife were not able to extricate themselves.”
Plaintiff prayed judgment for $10,000 as damages for the death of his wife; $500 for her funeral expenses; $1,000 for hospital bills paid or incurred in his own behalf; $50,000 for injuries, pain and suffering sustained by himself; and $600 for the demolition of his Dodge car — a total of $62,100.
Defendants’ amended answer contained a general denial and a rehearsal of the facts according to their view of them — that the bus was being operated in a careful and prudent manner; that the bus was sixty feet away when the collision between the Ford and the Dodge occurred; that both the Ford and the Dodge were being driven at high and dangerous speed and at a rate in excess of that permitted by the city ordinance at the time they collided; that the effect of their speed and of the collision was such that the Dodge was turned over and thrown directly in front of defendants’ bus, and that the accident occurred without fault or negligence on the part of defendants.
The cause was tried before a jury. The evidence was voluminous; the abstracts and exhibits extend to 300' pages; the briefs to 385 pages. The jury returned a general verdict in favor of plaintiff for the full amount prayed for, $62,100. They also answered certain special questions, chief of which read:
“2. When the impact occurred between the bus and plaintiff’s Dodge sedan,, was the bus traveling in third speed or gear? A. Third gear.
“3. At what maximum speed, in miles per hour, was the bus capable of traveling when in third speed or gear? A. Twenty-seven to thirty miles per hour.
“4. How far south of the south line of Lyons street was the rear end of the Dodge sedan when the bus and Dodge sedan collided? A. Eight or ten feet.
“5. How many automobiles, including the Dodge sedan, were on the west side of highway No. 40, in the block immediately north of Lyons street and traveling south, just prior to the collision between the Ford roadster and Dodge sedan? 'A. Four cars.
“6. Had the Dodge sedan come to a complete stop before the collision with the bus, or was it still in motion? A. Came to a complete stop.
“7. In what position was the Dodge sedan, at the time of collision with the bus, as to being upright on its four wheels, or lying on its side, or lying on its top? A. Being on its four wheels.
“9. Did the driver of the bus use every appliance and means at hand that he could use, with safety to the passengers in said bus, to avert the collision with the Dodge sedan, after he saw the Dodge sedan in a position of danger? A. No.
“10. If you answer the preceding question No. 9 no, then state, with particularity, what he omitted to do. A. He failed to apply his brakes in time to avoid the collision, nor did he turn out to the right in time.
“11. Were the air brakes and emergency brakes of the bus in good condition and working order at and immediately prior to the collision between the Dodge sedan and the bus? A. Yes.
' “12. Did the driver of the bus apply the air brakes and also apply the emergency brakes on the bus as soon as he knew that the Dodge was in his path, or coming into his path? A. No.
“13. After the driver of the bus saw the Dodge sedan in a position of danger, how far did the bus travel before it came to a stop? A. Eighty-six feet.
“14. If you find for the plaintiff, then state how much you allow the plaintiff: “(a) For the death of his wife? A. $10,000.
“(h) For funeral expenses of his wife? A. $500.
“(c) For hospital, surgeon, and doctor bills? A. $1,000.
“(d) For plaintiff’s own injuries? A. $50,000.
“(e) For damages to plaintiff’s car? A. $600.”
The trial court by remittitur reduced the jury’s allowance for the Dodge car to $565, and eliminated $729.40 of the jury’s award for plaintiff’s hospital expenses, and approved the verdict in all other respects and entered judgment against defendants for $61,335.60.
Defendants appeal with thirty-seven specifications of error, some of which are subdivided. The more serious of these will be discussed as we proceed; others of less importance will have to be disposed of summarily for lack of space and time.
1. It is first contended that the verdict and findings charge plaintiff with continuing contributory negligence up to the time of the accident as a matter of law. Defendants direct our attention to the jury’s finding that the Dodge car was not damaged by its collision with the Ford and that its occupants were not injured thereby. The jury found that the Dodge was standing on its four wheels when the bus drove into it. From these findings defendants argue that it was negligence as a matter of law for the Dodge to stand still on the east side of the slab waiting for the bus to drive into it, when it might have gotten out of the way under its own unimpaired power. This situation furnished a fair talking point before the jury, but when we consider that the driver of the Dodge would need a few moments, at least, to decide what to do in such unusual circumstances, it cannot be said that contributory negligence was shown as a matter of law.
2. It is contended that the trial court erred in submitting to the jury an issue of negligence on the part of defendants in failing to discover the perilous position of the Dodge and its occupants in time to prevent a collision with the bus. The court instructed the jury that the question of defendants’ negligence should be determined by the action of the bus driver after he saw, or could have seen, the Dodge car whirl over to the east side of the paved road. Defendants assert that the bus driver’s duty did not require him to keep a lookout for such an unusual happening as that which occurred at the intersection. . They contend that the bus driver owed no duty to plaintiff and his wife until he actually saw the Dodge in his path and realized its helplessness to get out of the way of the büs. On this point counsel cite Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6. In that case plaintiff was riding a motorcycle on a street in Lawrence. Trying to avoid a collision with defendant’s street car he rounded a street comer too quickly and was thrown from his motorcycle and fell so close to the car line that the running board of the street car passed over him and he was dragged some distance. He brought an action for damages against the street-car company, charging it with negligence on the theory that the motorman ought to have discovered his perilous situation in time to have avoided the injury; but this court, citing earlier cases, held that the humanitarian or last-clear-chance doctrine does not apply where the negligence has to be predicated on the theory that defendant ought to have discovered plaintiff’s danger in time to have avoided the injury but did not in fact discover it. However, we think this point of law is not important in this case because the bus driver testified that he saw the Dodge in front of him before it had quit moving. His testimony reads:
“As I approached Lyons avenue, the first thing I noticed there was an accident . . . There was the back end of a car I saw coming right in toward the motor of my ear ... I did not see the Ford strike the Dodge. The first thing I saw was the rear end of the Dodge. It was in motion ... It was swinging around toward me ... It seemed to be kind of half off its wheel and turning over towards its side.”
• While the bus driver stated that the bus was only fifteen or twenty feet away when he saw this event, the jury found that he was eighty-six feet away when he saw it, which fact makes it clear that the bus driver did see the Dodge at the moment it whirled across to his side of the road; and so the criticized language of the trial court’s instruction relating to what would be his duty after the bus driver “by the exercise of reasonable care could have discovered the position of plaintiff’s car” and other language to the same effect was nonprejudicial.
3. Error is predicated on the trial court’s instruction that “if there was no evidence to the contrary” the jury should presume that the deceased driver of the Dodge car (Mr. Stickel) was not guilty of contributory negligence which caused the Dodge car to be upon the east side of the road, nor in his failure to extricate it from the path of the oncoming bus. The main criticism with this instruction is against the lapsus linguce of the court by its use of the words “if there was no evidence to the contrary.” Counsel for plaintiff seek to answer this criticism by asserting that there was in fact no substantial evidence that the driver of the Dodge was guilty of negligence. We cannot assent to that. There was the testimony of witnesses touching the negligent speed of the Dodge as it approached the intersection, likewise the negligent speed of the Ford which first collided with it. Part of that testimony was that the Dodge was traveling at a speed in excess of the city ordinance, and that at the same time its driver’s view of cars approaching from the west was cut off by a house and other obstructions situated on the northwest corner of the intersection. Furthermore, it is too clear for cavil that there was negligence on the part of somebody, Ford driver, sedan driver, or both, which caused the first collision and which resulted in landing the Dodge and its passengers on the east side of the road. The court should have plainly instructed the jury that negligence did cause the first accident, that whether the fault or any part of it lay with the sedan driver was immaterial, but that the jury’s concern was to determine whether the effect of that negligence which caused the first accident had ceased before the second collision occurred. We therefore hold that the trial court was not well advised in its use of the words “if there was no evidence to the contrary” in this instruction, but a majority of this court do not regard the error as so misleading as to be prejudicial.
4. Defendants’ next contention is that the negligence alleged was not the proximate cause of plaintiff’s injuries and damages. The argument is that the collision of the Dodge and the Ford which whirled the Dodge over in front of the bus was the efficient cause. The case of Johnson v. City of Omaha, 108 Neb. 481, is cited in support of this point. But that case was only superficially like the one before us. Plaintiff’s car was coming south. .Another car coming from the west ran into it at a street intersection, which caused plaintiff’s car to swerve to the east side of the street into and against the city’s fire truck which was going north. Plaintiff was thrown from his car and killed. In that case, also, there was evidence which the jury believed that the first and second collisions happened so close together “as to be considered the same crash.” The supreme court reversed a judgment against the city for damages for the death of plaintiff, saying—
“No reasonable mind could believe, under the conditions thus shown, that the driver of the fire truck did see, in time to have avoided a collision with the Johnson car, that said car was in his course, or that he should have seen or anticipated that the Johnson car was, or would be, thrown into his truck.” (p. 493.)
In the Nebraska case the' vital question of the length of time between the first and second collisions was settled by the triers of fact against the plaintiff. Here this vital matter was determined favorably to plaintiff.
5. The next point urged by appellants is that at the close of all the testimony there was no evidence to show that no injury had happened to plaintiff and his wife in the first collision, and that the jury had nothing on which to base its conclusion that all the injury, death and damages were caused by the second collision, and that the court should therefore have directed a verdict for defendants. We cannot assent to this contention. There was evidence that the Dodge car was standing upon its four wheels on the east side of the slab and headed north, with nothing apparently the matter with it. The Ford car broke a wheel which caused it to collapse on the east side of the road and catch fire, but its three occupants were not much hurt by that mishap. So, assuming the truth of the testimony touching the lack of apparent harm to the Dodge by the first collision, it would not do for the trial court to take the case from the jury for want of positive proof that the first collision had wrought no injury to plaintiff and wife. In Lane v. Insurance Co., 113 Kan. 365, 214 Pac. 92, the rule stated in 23 C. J. 49 was quoted approvingly. It reads:
“But there is also authority for the view that it is sufficient for the party having the burden of proof to make out the more probable hypothesis, and that the evidence need not rise to that degree of certainty which will exclude every other reasonable conclusion.”
6. Defendants also complain of the admission of testimony touching the sturdiness of Dodge sedan cars and that they will not collapse by being capsized. There is little merit to this point. Courts are inclined to look with favor upon experimental evidence and tests of relevant occurrences. These need not be exactly similar to the occurrence which the jury has under consideration; the degree of similarity must be taken into account in weighing its probative force; but if the similarity of conditions is slight the evidence of the test of experiment has little evidentiary significance and the trial court may properly rule.it out altogether. This subject was considered at some length in Johnson v. Railroad Co., 80 Kan. 456, 103 Pac. 90. See, also, 1 Wigmore on Evidence, 2d ed., 780-790; 22 C. J. 755, 758, 759. The evidence objected to in this case may have had little or no probative value, but it cannot be judicially declared that it was prejudicial.
7. Error is also assigned on the exclusion of evidence tending to impeach the candor and veracity of Irwin, the plaintiff’s principal witness. Irwin was a passenger on the bus at the time of the accident. He testified that the bus was 125 feet away when the first collision occurred; that he observed that when the bus was 90 or 100 feet away the driver of the bus had done nothing to change its direction or course; and that at the time the Dodge stopped it was on its four wheels; and that the bus was only 25 or 30 feet from the Dodge when he noticed any slackening of its speed. The general effect of Irwin’s testimony was to make a rather strong case of negligence against the defendants. On cross-examination defendants sought to elicit the fact that his testimony was inconsistent with a statement he had made at the time of the accident. In that statement Irwin had given his name and address, and answered questions:
“Were you injured? If so, whaj injuries did you sustain? Slight bruise on chin.
“Who do [you] consider to blame for accident? Driver of Ford.
“Reason? Coming from east [west], ran into Dodge.”
[Counsel fob Plaintiff] : “We object to the paper as not purporting to state a fact in this case or tending in any way to contradict any fact to which the witness testified, and it is a mere conclusion.
“By the Court: It is wholly immaterial in this case. It is immaterial to the issues and does not tend to contradict anjThing so far. The objection is sustained.”
Neither the objection nor the ruling was correct. The statement was not offered as evidence relating to the liability of the Ford driver, nor as bearing on the liability of the defendants, but merely to show that Irwin had made a prior statement in relation to the accident which was inconsistent with the testimony he was then giving at the trial. Under elementary rules of evidence the fact that he had made such inconsistent prior statement was admissible. In Holland v. Railroad Co., 112 Kan. 609, 212 Pac. 90, the action was one to recover damages resulting from a collision between a Ford car and a railway switch engine. Plaintiff’s case rested largely on the question whether there was a proper headlight on the engine. The railway conductor testified that the engine was fully equipped with an electric light and that it was burning when the collision occurred. It was shown, however, that the night of the accident he had stated to a witness: “We had a damn poor headlight. . . . We had been having trouble with this light ever since we left Nevada.” (p. 615.) On appeal the railroad company contended that the statement was incompetent, but this court held that it was admissible for the purpose of impeaching the conductor as a witness.
This precise question arose in Judson v. Fielding, 237 N. Y. Supp. 348, which was an action for damages for the death of plaintiff’s husband in an automobile which collided with a passenger bus. One Walsh, principal witness for plaintiff, had been a passenger in the bus and gave testimony tending to show that improper driving of the bus was to blame for the accident. On cross-examination he was asked if he had stated to a highway patrolman immediately after the accident “that the bus was not to blame.” Objection to this question was sustained. The appellate division of the supreme court held that this ruling was harmful error which required a reversal of the judgment in plaintiff’s favor and that a new trial be ordered. In the opinion the court said:
"In considering the evidence so sharply in dispute, the jury was entitled to know the contrary views the witness had expressed when the incident was fresh in his mind, uninfluenced by sympathy or other cause. Very often by calm reflection a witness may correct inaccurate observations or erroneous impressions hastily formed. But the jury should have all the facts in making an appraisement of the value and weight to be given the testimony. It is quite possible that with the credibility of the principal witness shaken, a different result would have been reached.” (p. 352.)
In another damage suit, Uggen v. Bazille & Partridge, 123 Minn. 97, it was held:
“Prior statements of a witness inconsistent with his testimony are admissible for the purpose of impeachment, although they state what he understood instead of the facts upon which such understanding was based, and it was error to exclude such statements.” (Syl. U 3.)
In an action for the negligent death of a workman, the same question was considered by the supreme court of Kentucky and it was held that the exclusion of evidence showing prior inconsistent ■ statements of a material witness constituted reversible error. The pertinent syllabus reads:
“Where witness testified that there was hanging slate at place where plaintiff’s intestate was killed, but prior to trial he had signed statement that it was his honest opinion that deceased was hurt because he raised himself too high while riding in bank car, such statement, though merely expressing an opinion, being inconsistent with his testimony was competent to destroy or weaken latter and exclusion thereof was error.” (Rockport Coal Co. v. Barnard, Admrx., 210 ICy. 5, syl. ¶ 5.)
In discussing the competency of evidence to show that a witness has made prior statements inconsistent with the testimony he has given on the witness stand, Professor Wigmore (2 Wigmore on Evidence, 2d ed., 492, 493, 495) says:
“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 trae {ante, § 1017). 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. . . . As a general principle, it is to be understood that this inconsistency is to be determined, not by individual words or phrases alone, but by the whole impression or effect of what has been said or done. On a comparison of the two utterances, are they in effect inconsistent? Do the two expressions appear to have been produced by inconsistent beliefs?
“The form of the supposed contradictory assertion is immaterial. It may be oral or written; it may be an ordinary letter, or it may be a sworn statement, as, for example, a deposition, or an oral repetition of a written statement already proved.
“. . . In short, the only proper inquiry can be, Is there within the broad statement of opinion on the general question some implied assertion of fact inconsistent with the other assertion made on the stand? If there is, it ought to be received, whether or not it is clothed in or associated with an expression of opinion. As a matter of precedent, the rulings vary more or less in the results reached; most of them are vain quibbles.”
See, also, Higgs v. State, (Ark. 1924) 264 S. W. 859.
This court holds that the prior statement of Irwin, being, as it was, seemingly inconsistent with his testimony on the witness stand, was competent for the purpose of impeachment, and its exclusion was erroneous and prejudicial.
8. The next error urged on our attention relates to the trial court’s refusal to grant a new trial on newly discovered evidence tending to impeach the veracity of the witness Irwin. Irwin had represented himself to be a graduate of Princeton University and a doctor of philosophy. He was the only witness who testified positively that the Dodge car was standing on its four wheels when the bus drove into it. With one other exception the plaintiff’s witnesses testified that the Dodge was lying on its side or on its back when the bus drove into it. The one other witness for plaintiff, Kenneth Peters, who did not so testify, made a demonstration with models to show the jury the position of the two automobiles after the first collision. His testimony reads;
“I did not see the Ford turn over. ... I did not see the Dodge car turn over, and I didn’t see the Dodge car turn off its wheels until after the bus had struck it. . . . And the Dodge was upside down then. . . . From the time the Dodge and Ford came together until the bus and the Dodge came together was all so quick you couldn’t hardly believe it — as quick as you could snap your finger — instantly. They came together and were standing and swinging up and down on a bounce, and immediately they were struck by the bus.”
Disregarding the testimony of all the eye witnesses for defendants, of whom there were several, and all of whom testified that the Dodge was thrown in front of the bus on its side or on its back— since the jury had the right to disbelieve them — the plaintiff’s other eyewitnesses to the collision testified as follows:
Miss McManus : “When I got out of the Ford it [the Dodge] was still on the slab lying on its top just west of the Ford.”
Claude B. Minor: “The Dodge car had stopped just a little south of the point where the Ford lay in the ditch when it stopped and at that time the Dodge was on its back. ... I am certain that the Dodge car was turned over on its back before the bus ran into it.”
In rehearsing this evidence this court has no purpose of taking upon itself the task of appraising the credence which should be given to witnesses whom we have not seen. But this testimony was given by plaintiff’s witnesses. Some of the physical facts tended to show that the Dodge could not have been standing on its four wheels when the bus struck it — particularly a dent on the housing in the center of the rear axle of the Dodge, which must have been made by the bus, and yet it is very difficult to imagine how the bus could have made that dent unless that rear axle of the Dodge was upended or the Dodge was upside down when the bus struck it. Moreover, it is hard to understand, if the Dodge was standing on its four wheels and undamaged by the first collision, why the Dodge was not propelled forward rather than utterly crushed when the bus bumped into it. These considerations show how vital to plaintiff’s cause and fatal to the defense was Irwin’s testimony. In support of the motion for a new trial, it was shown that Irwin had falsified when he represented himself to be a doctor of philosophy and graduate of Princeton University. It was also shown by affidavits of people who knew him that his reputation for truth and veracity was not good. In fairness to Irwin, however, it should be noted that there were also counter affidavits that his reputation as a truthful man was good. Counsel for plaintiff now say—
“So far as Dr. William S. Irwin, is concerned, he could be eliminated as a witness in this case, and there was ample evidence from witnesses Kenneth Peters, Claude Minor, and Miss LaVerne McManus, and the physical facts in this case for the jury to reach the conclusions of fact which they did.”
We have above rehearsed the most important features of the testimony of these witnesses and must hold that a verdict for plaintiff resting exclusively on their testimony could not stand. Counsel for defendant would now minimize the false testimony of Irwin touching his standing as a scholar and clergyman, but in addressing the jury Irwin’s self-asserted prestige was emphasized in dramatic fashion. Counsel for plaintiff while addressing the jury apostrophized opposing counsel thus:
“Now, ... let me take your position. You say Doctor Irwin, that graduate of Princeton, that Presbyterian minister, chairman of the Beloit Hospital Association; you say he comes here, and that he is mistaken, that Mr. Irwin didn’t know what he was talking about . . . Doctor Irwin told you how he discovered what his position was, . . . and he came in like a gentleman and the Christian man that he is, and told us how it happened, and now if they cannot tangle him up they want to get away from him.”
In view of the showing which tended to discredit Irwin as a witness and the further fact that Irwin had made a statement touching the.cause of the tragedy at the time it occurred which was incon sistent with his testimony given at the trial, the approval of a verdict for $60,000 which necessarily rested so largely on his testimony involved a very serious responsibility on the trial court. But for reasons which otherwise appear in this opinion we need not decide whether this one phase of the case would require a reversal of the judgment.
9. Defendants find fault with the form of general verdict which the trial court submitted to the jury. But we see nothing the matter with it, and neither apparently did the defendants at the time it was given to the jury, for they made no objection to it at that time, and the questions to develop the special verdict or special findings of the jury were prepared by counsel for defendants.
10. Error is also predicated on the exclusion of a written statement made by defendants’ witness, J. W. Glidden, which he had made for the use of counsel for plaintiff shortly after the accident. Excerpts from that statement were introduced to show that it was inconsistent with his testimony at the trial, which was quite proper, as we have shown above in dealing with the excluded prior inconsistent statement of Irwin. The record reads:
“The Court: The court cannot order the statement be submitted. The witness is here in court.”
[Counsel, for Defendants] : “Then I move that all testimony with respect to this statement be stricken from the jury and the jury instructed to disregard it.
“By the Court: Overruled.”
In view of the foregoing it seems clear to this court that defendants were entitled to have the fact or insinuation of the witness’ inconsistent statements cleared up either by having the statement introduced so that it might speak for itself, or that all reference to it should have been stricken out.
11. Defendants also make complaint against a ruling of the trial court in respect to the testimony of defendants’ witness Evans, who had been a passenger on the bus when the accident occurred. He testified to various details of the accident, including the fact that the Dodge was upside down and its four wheels in the air when the bus collided with it. Counsel for plaintiff had procured from this witness a lengthy statement about the accident. Plaintiff was permitted to read that statement to the jury. One part of it had originally recited that following the first collision, when the Dodge landed near the southeast corner of the intersection it “was upside down.” The words “was upside down” were scratched out. In response to a question by counsel for plaintiff the witness was not permitted to explain the statement, but required to answer whether he had made it with a categorical “yes or no.” He answered: “Yes, through influence.” The trial court ruled that the witness might explain what he meant, and in the absence of the jury the witness testified that Mr. Boddington had told him what other witnesses said as to the speed of the bus, and showed him maps and pictures and “tried to impress [me] where it [the second collision] couldn’t be this way and couldn’t be that way, that was what I wanted to explain.” However, this matter was not followed up with some such explanation by the witness when the jury was recalled, so it cannot be said that prejudicial error occurred; but we cannot but marvel why such wide latitude was given to discredit witnesses for defendants and to limit their explanatory statements of whatever inconsistencies may have existed between their statements made shortly after the accident and the testimony they gave at the trial, while the inconsistent statement of plaintiff’s witness Irwin which he likewise made the day of the accident was ruled out.
12. Defendants make many objections to the instructions which the court gave to the jury. We have already held that the court erred in the casual way it dealt with the negligence which caused the first collision; also the technical error touching the duty of the driver to discover the perilous situation of the Dodge and its passengers before he did discover it. It is contended that the court’s instructions gave the jury a roving commission to convict defendants of negligence on any ground whether pleaded or not. We do not concur in this criticism. One instruction to which exception is taken reads:
“The degree of care required of both the plaintiff and the defendants in this case, in the operation of their respective vehicles, was what is termed reasonable care. Reasonable care is such degree of care for the avoiding of collisions, as a reasonably prudent and careful driver of such vehicles would exercise under all the surrounding circumstances as disclosed by the evidence. Care, which would be reasonable under one set of circumstances, might not be such under all circumstances. (One set of circumstances might demand but slight care and yet be termed reasonable, while another might demand the highest possible degree of human skill and foresight in order that it may be termed reasonable.) In order to determine whether reasonable care was used by the operators of the vehicles involved in this case, the nature of the vehicle, as to size, weight and manner of construction and control, the nature of the roadway, the extent and nature of travel thereon, the likelihood of emergency calling for quick action, or the absence thereof, in view of the entire evidence should be taken into consideration by the jury.”
The next succeeding instruction should be read and considered with the one above. It reads:
“If a driver of a vehicle is confronted by a set of circumstances which call for quick action, without time for deliberation, and he uses his best judgment and follows the course of action which seems to him best suited to prevent a collision, he cannot be found to have been negligent simply because he did not do what some other person might have done if placed in the same position and confronted by the same set of circumstances.”
We think these two instructions constituted a fair statement of pertinent law. (Arrington v. Horner, 88 Kan. 817, 129 Pac. 1159. See, also, McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468; Super v. Modell Township, 88 Kan. 698, 701, 129 Pac. 1162; Bean-Hogan v. Kloehr, 103 Kan. 731, 175 Pac. 976.) The statutory rule (R. S. 1931 Supp. 8-122) governing the requisite degree of care in driving motor vehicles on public highways and city streets is in accord with the pertinent legal principles of due care which the courts have worked out independent of statutes. These rules of law are imperatively necessary for the protection of life, limb and property in this age of growing congestion of motor traffic, and the trial court’s instructions Nos. 4 and 5 are approved. One criticism of the instructions was based on the trial court’s assumption that Stickel was driving the sedan at the time of the accident, the contention being that there was no evidence of that fact. The point is unimportant, but we think the position of Stickel’s body crushed beside the steering wheel was convincing evidence. The many other criticisms of the instructions have all been carefully examined, but we discern nothing further on this phase of the appeal to warrant discussion. Neither do we find just ground for complaint in the refusal of the trial court to give certain instructions requested by defendants.
13. Coming next to the error based upon the excessive verdict after modification by the trial court, $62,100, defendants have a just grievance thereat. Surely this jury had a poor conception of money values, or were obsessed with the idea that a bus company has a storehouse of treasure like an eastern potentate in the “Arabian Nights,” ready to pay over on the nail whatever sum as damages the caprice of a jury may determine. $62,100! The bus which figured in this tragic affair was a 29-passenger vehicle. If it had a full load of passengers and had a net profit of two cents per mile for every one it hauled, that bus would have to travel 107,241 miles, or five times around the world in this latitude, to earn enough money to pay this judgment. With the same number of passengers it had the day of the accident it could not earn such a sum in a round trip as far as from Lawrence to the moon.
These illustrations of ours may seem grotesque, but it seems necessary to make the matter as plain as a barn door in order to demonstrate how unreasonable was the size of this verdict. It may be quite true that plaintiff was severely, dangerously and painfully injured and that he will never again be the man he was; and if so he is entitled, of course, to very substantial damages against the proven wrongdoers; but this court has had to deal with many cases of severely and permanently injured persons, and hitherto it has steadfastly set its face against the perversion of a cause of action for personal injuries into a letter of marque to plunder the treasury of a corporation. Laying aside the other errors complained of, this court is bound to hold that the verdict in this case is grossly excessive by all the determinants available. In Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 134, 234 Pac. 7, it was said:
“ ‘Error based on an excessive verdict and judgment is seldom an easy question for an appellate court to solve, and it is peculiarly difficult where the sum allowed is for pain and suffering. Of course, rules for dealing with excessive verdicts are not altogether wanting; if on reading the record the conscience of the court is shocked at the verdict, a remittitur or reversal is ordered; but there is no uniform yardstick, no hard and fast rule, by which the excessiveness of a verdict can be measured and determined as in ordinary mathematical calculations.’ ”
See, also, Hardwick v. Railways Co., 114 Kan. 843, 845, 220 Pac. 1043.
Frequently the vice in an excessive verdict can be cured by a remittitur consented to by the prevailing party, as in Fosche v. Traction Co., 108 Kan. 585, 196 Pac. 423; Akins v. Railway Co., 109 Kan. 474, 199 Pac. 464; Whitesell v. Street Railway Co., 115 Kan. 53, 222 Pac. 133; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312; Bettis v. Wyandotte County, 116 Kan. 568, 571, 572, 227 Pac. 533; Tartar v. Missouri-K.-T. Rld. Co., 119 Kan. 738, 742, 241 Pac. 246; Stroup v. Northeast Oklahoma Rld. Co., 122 Kan. 587, 253 Pac. 242; Ellis v. Kansas City Public Service Co., 131 Kan. 555, 292 Pac. 939. But the rule is well established that where the vice of an excessive verdict cannot be cured by remittitur a new trial must be granted. Such a situation arises when the verdict has manifestly been given under passion and prejudice. (Civ. Code, § 305, R. S. 60-3001; M. K. & T. Rld. Co. v. Weaver, 16 Kan. 456; K. P. Rly. Co. v. Peavey, 34 Kan. 472, 8 Pac. 780.) In A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567, 15 Pac. 499, the plaintiff sued for $50,000 for personal injuries. The jury gave him every cent he asked. The trial court ordered a remittitur of $25,000, which the plaintiff consented to, but this court would not countenance a judgment rendered under such circumstances and remanded the cause for a new trial. Speaking by Mr. Justice Valentine, this court said:
“Evidently the jury acted either under a misconception of their duties, or under the influence of passion or prejudice; and probably under both. . . . Evidently when the court below required the plaintiff either to remit $25,000 of the damages found in his favor, or to take a new trial, the court must have found that the verdict of the jury was rendered under the influence of passion or prejudice. And certainly if one-half of the verdict was rendered under the influence of passion or prejudice, ... It may be that this passion or prejudice affected the entire verdict and also the special findings, and caused the jury to find in favor of the plaintiff, where, except for the passion or prejudice, they could not have found in his favor at all.” (p. 578.)
An analysis of the constituent parts of this verdict is not reassuring that it was free from passion and prejudice. The jury not only allowed the maximum figure, $10,000, for the death of the woman, but threw in another $500 for funeral expenses. It allowed $600 for damages to plaintiff’s car, when counsel for plaintiff in his closing argument to the jury indicated that $500 would be plenty. The allowance of $50,000 for plaintiff’s injuries so obviously indicates passion and prejudice as to shake the confidence of a reviewing court in the jury’s' sincerity in dealing with the other questions requiring their determination. And particularly does it shake confidence in those findings which are based so largely on the testimony of Irwin as against the plaintiff’s other witnesses as well as the witnesses for defendants. In another respect this court gets the impression from the record that defendants did not have a fair trial. In its first answer counsel for defendants inadvertently pleaded that the bus was 100 feet away when the collision of the Ford and the Dodge occurred. By leave of court, defendants were permitted to correct and amend that estimate to 60 feet, but throughout the trial plaintiff was permitted to refer to the 100-foot estimate as if it continued to be a damaging admission of defendants. This was quite unfair, and should not have been permitted. Another point: plaintiff’s petition alleged that the bus was traveling at forty miles an hour. As the trial progressed, it became necessary to slow down the speed of the bus, because if it were only 86 feet away when the Dodge first appeared on the east side of the slab and the bus was traveling at forty miles an hour, there would be less than two seconds available for the bus driver to visualize the scene, the possibility of danger, to decide what to do, and to do it to avert or minimize the second collision. But plaintiff was not held to his pleading as to the speed of the bus and the jury graciously reduced its speed to that ' of third gear (findings 2 and 3) so as to give the driver of the bus time to stop it or turn out into the shallow swale on the right (finding 10) if he had been duly attentive to his business.
This court concludes that the judgment cannot stand; and a majority of the court also concludes that the record would not warrant a reversal limited to a determination of a proper allowance for plaintiff’s damages. The judgment is therefore reversed and the cause remanded for a new trial on all issues involved. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the indorsee of a check to recover from the maker. The verdict was for plaintiff, and a motion for new trial was filed. The term of office of the district judge who presided at the trial expired, and the hearing on the motion was before his successor. The motion was sustained, and plaintiff appeals.
The check purported to be the check of John Carnes to Frank Carnes. Frank Carnes indorsed and delivered the check to plaintiff, but John Carnes stopped payment before the check could be presented. The maker’s name was signed by his wife, and the issue in the case was whether she had authority to sign her husband’s name to the check. The motion for new trial was based on all statutory grounds.
We get the reasons for the granting of a new trial in letters from the district judge who made the order, written to the attorneys of the respective parties while the judge had the motion under advisement. The letters were not a part of the proceedings in the case, and may not be considered. (Wenzel v. Milling Co., 113 Kan. 338, and cases cited, 340, 214 Pac. 406.) This rule applies to correspondence between judge and attorney occurring before judgment as well as after judgment, because between date of epistolatory effusion and date of judgment the judge may change his mind.
The evidence produced at the trial was not before the court when the motion for new trial was heard. For the purpose of introducing the subject of the court’s function respecting the motion, it may be observed that the judge’s letters show he passed on the merits of the motion, and did so from the following standpoint:
“Unless the evidence in the case was such as to make the foregoing law largely inapplicable, I think the motion for a new trial ought to be sustained; ...”
The statute reads as follows:
“A motion for a new trial shall not be sustained and a new trial shall not be granted by the judge of any district court of the state of Kansas, for the reason that a different judge is hearing the motion for a new trial from the judge that tried the case: Provided, That the evidence has been taken in such trial and is available for the judge hearing the motion for a new trial and such judge has the facts before him in passing on such motion.” (B,. S. 60-3002.)
The statute was enacted in view of the situation presented in the case of Bass v. Swingley, 42 Kan. 729, 22 Pac. 714. In that case a trial by jury occurred before a judge of the district court who was succeeded by another. A motion for new trial came on to be heard before the trial judge’s successor. One of the grounds for the motion was that the verdict was not sustained by sufficient evidence. A new trial was denied, and this court held a new trial should have been granted. The syllabus reads:
“Held, that as a party filing a motion for a new trial has a right to have the-same heard before a judge who can hear and determine the same intelligently, and as the new judge in this case could not know what the evidence was which was introduced upon the trial, and therefore could not act upon the motion intelligently, and could not overrule the same without depriving the party filing the same of a statutory right, such new judge should have granted a new trial.”
In the opinion it was said the court could not consider the motion with respect to any ground involving review of the evidence, and the court could consider the motion only for the purpose of granting a new trial.
The present statute relating to new trials, enacted long after the decision in Bass v. Swingley, provides:
“A new trial shall not be granted as to any issues in a case unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part, . . .” (R. S. 60-3004.)
This statute forbids the granting of a new trial unless there is an affirmative showing that the ground relied on affected the result. (Leavens v. Hoover, 93 Kan. 661, 665, 143 Pac. 877.) Therefore, but for R. S. 60-3002, the decision in Bass v. Swingley would apply generally, and not merely to motions based on the ground the verdict was not sustained by the evidence.
The court regards R. S. 60-3002 as meaning that if the evidence has been taken and is available, the succeeding judge shall pass on the motion for new trial as if he had presided at the trial. If the evidence has not been taken, or if the evidence has been taken but is not available to the judge, so that he is not able to determine whether, on the whole case, the motion should be allowed or denied, a new trial should be granted. In the latter event the motion is to be considered no further than as an application for a new trial. The new trial is not granted on account of merit of the stated grounds. It is granted because the court is not in position to determine merit or demerit, and is not in position to exercise the judicial discretion permissible when ruling on a motion for new trial.
In this instance the evidence was taken by a court reporter appointed by the trial judge. That reporter was succeeded by a reporter appointed by the district judge who heard the motion for a new trial, and defendant contends the evidence was not available.
The law provides that the reporter, under direction of the court, shall take the proceedings stenographically, and shall file his notes and all exhibits introduced in evidence with the clerk of the district court. (R. S’. 20-903.) There is a presumption that the reporter who took the testimony did his official duty, and filed his stenographic notes with the clerk of the district court. This presumption prevails in the absence of proof to the contrary. There was no such proof, and so far as the record disclosés, the evidence was 'available.
In the counter abstract counsel for defendant state what occurred:
“The judge also called the attention of counsel to the fact that there was a new court stenographer, and that the evidence taken in the trial of the case was not available to him, and that he would not have the facts of the case before him in passing on the motion. The court suggested to counsel for appellant [plaintiff] that the evidence taken on the trial should be available, and that it might be proper for appellant to procure that testimony so that it would be available, and announced that if desired the hearing on the motion would be postponed for that purpose. . . . Counsel for appellant took the position that it was not necessary for appellant to see to it that the evidence was available, counsel for appellee took the position that he was not required to produce the testimony, and the same was not produced.”
The verdict was for plaintiff. It did not devolve on plaintiff to help sustain defendant’s motion for a new trial. In order to establish ground for a new trial it was necessary for defendant to show that the matters complained of affected the verdict, and he was obliged to place the court in position to determine the matter, if that could be done. The fact that there was a new court reporter did not make the evidence unavailable, and no sufficient reason for nonproduction of the evidence is disclosed.
Delay in disposing of cases in court may result in deprivation of the fruits of the litigation. New trials are expensive. They are granted in furtherance of justice only. The court should be vigilant in preventing injustice, as well as in promoting justice. In this instance there is nothing to indicate that the trial reporter was not subject to call of the court or of counsel for defendant, to aid in putting the court in possession of the evidence in the case, and without clear proof establishing that the evidence could not in fact be made available the court was without authority to grant a new trial.
The judgment of the district court is reversed, and the cause is remanded with direction to set aside the order granting a new trial. | [
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The opinion of the court was delivered by
Hutchison, J.:
This action is upon a promissory note for $1,000 given to the Farmers State Bank of Simpson, Kan., by the three defendants and two others, and assigned to the plaintiff herein one day before it became due. Two payments have been made on the note by the two other signers, not made defendants here, which reduced the balance to $565.40 when this action was commenced. The answer admitted the execution of the note, but alleged it was signed without any consideration and at length alleged that Glen Prickett, the son of the defendants, H. D. Prickett and Iva Prickett, and brother of the defendant, Joseph Prickett, had checks outstanding for which there were no funds in the bank; that he had also given a note to the Farmers State Bank secured by a mortgage on cattle; that he had given two other parties mortgages covering in part the same cattle; that Mr. Stehley, cashier of the bank, told the defendants, the parents and brother of Glen Prickett, that Glen was guilty of the crime of disposing of mortgaged property of the value of more than $20 and of remortgaging property of more value than $20 and that the defendants, in order to compound and settle said felony, signed the note in this action; that the other two parties to whom mortgages had been given were going to prosecute Glen; that the defendants believed these statements of the cashier, and in fear of his being prosecuted signed the note. A reply in the form of a general denial was. filed and the cause was tried before a jury, which rendered a verdict for defendants and answered a number of special questions. Judgment was rendered on the verdict for defendants, and plaintiff appeals.
In the trial the court placed the burden upon the defendants, instructing that the plaintiff was entitled to recover on the note unless the defendants proved one or more of their defenses. The court instructed there were three defenses: (1) that the note was given for the purpose of preventing a criminal prosecution; (2) that the defendants were induced to sign the note through fear that Glen would be prosecuted criminally for disposing of mortgaged property; and (3) that the note was without consideration. In the next instruction the court withdrew from the consideration of the jury the first defense, leaving the second and third, namely, duress and want of consideration.
The briefs dwell at length upon the question of whether the plaintiff was a holder in due course. The only reason for his not being a holder in due course was the fact that he had heard of the claim of duress before he had parted with the consideration for the note, which will make that matter depend wholly upon the success or failure of the proof of duress. Likewise the want of consideration goes with the defense of duress as there was no evidence except that of duress to show a lack of consideration; the very allegations of the answer, if stripped of the duress features, make the note an accommodation one for the son and brother, whom the allegations of the answer show received full consideration therefor.
The following answers to special questions relate to the subject of duress:
“5. Were the acts and statements of C. W. Stehley made to defendants through a desire for gain? A. Yes.
“6. If you answer question No. 5 ‘yes,’ then state in what way the gain was to be had. A. To protect interested parties.
“7. At the time the note in question was signed by defendants did Stehley or the Farmers State Bank of Simpson have enough, money from the sale of Glen Prickett’s live stock and other personal property with which to pay its mortgage in full? A. No.
“8. Was any of the money received from the sale of cattle and other property sold by Glen Prickett and C. W. Stehley for cattle belonging to Joseph Prickett? A. Yes.
“9. If you answer the foregoing question ‘yes,’ then how much of said money was for cattle belonging to Joseph Prickett? A. $508.50.
“10. Before the defendants signed the note were they advised by the then county attorney, Ralph H. Noah, that Glen Prickett could be prosecuted for a felony? A. Do not know.
“11. Before the defendants signed the note were they advised by the then county attorney, Ralph H. Noah, that selling mortgaged property was a felony? A. Yes.”
The last two answers do not help on the question of duress in anyway or manner. The jury did not know whether the county attorney advised defendants that Glen could be prosecuted for a felony. It was the theory of the defendants that he had so advised them, but the jury was not able from the evidence to find that he had. The other answer, that the county attorney advised them that selling mortgaged property was a felony, was only what the law presumes everyone to know. The answer alleged it was a felony. If it had only been a misdemeanor and the county attorney had exaggerated the matter and told them it was a felony, that would have contributed to arousing the fear alleged. But he simply told them what the law was, which they were presumed to know, and did not, as far as the jury could determine, apply that law to Glen’s conduct or case. The undisputed evidence is that shortly prior to the signing of this note Glen owed the Farmers State Bank of Simpson two notes, one for $1,726.44 and the other for $1,000, making a total of $2,-726.44; that he made a sale of his mortgaged cattle which brought about that amount, including amount from sale of cattle belonging to his brother Joe, all of which funds were turned over to the bank. After the sale the cashier sent for Joe, as he knew before the sale that Joe was claiming some of the cattle sold by Glen. Joe and Glen figured out the amount belonging to Joe as $508.50. The testimony of Joe shows that he stated that he thought he would go and get the cattle, but Stehley did not want him to, and Stehley gave him a check for them that day, which was before he signed the note in question. On cross-examination Joe said that the next day, when they had signed the note sued on in this action, the cashier called him in and gave back to him a certain note he had signed the night before when he received from the cashier a check for his cattle. He says it was not for $1,000, but says he does not remember the amount of it. A memorandum introduced in evidence, said to have been made up when Joe was present, shows that the proceeds of the sale and $1,000 more covered everything Glen owed the bank, the two other mortgage holders and the $508.50 for Joe.
At this conference at the bank Joe says the cashier asked him if he knew what Glen had done, that he figured he was in a pretty bad hole and it would take some money to clear him, and he figured something was going to be done to him. The evidence of the de-, fendants shows that Joe told his father and mother about what the cashier told him about Glen, and Joe and his mother then went to see the county attorney, and then they and the father went to the bank and there signed the note, and the mother says the cashier “made it very plain to them that if they didn’t raise $1,000 that there would be something done with him (Glen) and, of course, we all knew what the offense was, he didn’t need to name that,” and “he wanted to know if we didn’t know what the penalty was for any boy to sell mortgaged property.” All three defendants said they would not have signed the note if they had not thought Glen would have been prosecuted criminally if they didn’t sign it. They made financial statements at the same time and entered into the following agreement, which was left at the bank:
“Dec. 12, 1929.
“It is agreed by Rae Priekett, Joseph Priekett, H. D. Priekett and Mrs. H. D. Priekett, his wife, that the attached note will be paid as follows: $266 will be paid by Rae Priekett, $266 will be paid by H. D. Priekett and Mrs. H. D. Priekett and the balance will be paid by Joseph Priekett, it being understood also that Hilma Carlson will pay $200 on this note, and when $200 has been paid together with interest, she shall be relieved from any more liability on said note. It is further understood that should any of the stipulated payments not be paid the liability of the others will hold against each and every one of them until said note is paid in full.”
Rae Priekett, a brother of Joe and Glen, and Hilma Carlson, a school teacher, promptly paid their proportions of the note in full.
Joe was the original source of information to the parents, and all the information they had as to threats were conveyed to them by Joe, except what is above quoted from the mother’s testimony as to the cashier making it plain to them and asking a question. The father did not talk to the cashier, nor with the county attorney. Ordinarily threats conveyed to others by an intermediary are none the less such as might produce fear and accomplish the essentials of duress (Smith v. Bank, 90 Kan. 299, 133 Pac. 428; and Bank v. Hutchinson, 62 Kan. 9, 61 Pac. 443), and the parents in this case might possibly have occupied such a position in connection with their signing this note under ordinary circumstances, but where the one conveying such information is directly interested, as Joe was in this case, such communications lose some of their force and effect, and every rule of reason compels the thought that Joe had the additional purpose in mind of effecting the return of his own note which he had put up the night before in order to get a check for the value of his cattle .sold by Glen. There is not a word of testimony about threats or putting Joe in fear about signing the note the day before. One thing is certain, that Joe did not act to his detriment in signing the present note, for he thereby got back his note for an amount he could not remember. The purpose of the cashier of coercing these defendants is exceedingly weak, to say the least. The undisputed figures show the bank had nearly or about enough cash to meet all its claims before deducting the amount of Joe’s claim. The thing accomplished by the bank was not an undue advantage, as is necessary for duress. When Joe told the story of the threats to his parents he was undoubtedly impressed with his own interest in getting them to share his own obligation on the note he gave the night before.
We think the full story told by the defendants themselves falls short of meeting the essential requirements of duress, as defined in the recent case of Western Paving Co. v. Sifers, 126 Kan. 460, 268 Pac. 803, as follows:
“To constitute duress by threats the actor’s manifestation must be made for the purpose of coercing the other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment. The evidence to establish duress must be substantial — not merely some evidence — and the court is not obliged to submit to the jury evidence which does not measure up to the required standard of proof.” (p. 463.)
We have no evidence as to the state of mind of any of these de■fendants. We only have their statements that they would not have done so but for the threat. This is not sufficient if they were in fact able to exercise their free will or judgment in the premises.
“The test in determining whether there was duress is not so much the means by which the father was compelled to execute the mortgage as it is the state of mind induced by the means employed — the fear which made it impossible for him to exercise his own free will.” (Williamson v. Ackerman, 77 Kan. 502, syl. If 2, 94 Pac. 807.)
“It is sufficient to sustain the plea of duress if the threats were communicated to her by the son and the natural and reasonable consequence of making them was to excite the fears of the mother so as to overcome her judgment and will.” (Smith v. Bank, 90 Kan. 299, syl. If 2, 133 Pac. 428.)
“Threats of personal violence or of criminal prosecution to amount to duress must be of such a character or made under such circumstances as to destroy the will of the one threatened to such an extent as to compel him to act in a manner contrary to his will and to his detriment.” (Riney v. Doll, 116 Kan. 26, syl. f 4, 225 Pac. 1059.)
The situation in this case is decidedly different from that in the case of American Nat’l Bank v. Lipe, 123 Kan. 674, 256 Pac. 967, where the bank officers called up by telephone the mother o.f a young man who was involved in some questionable financial transactions and insisted upon her coming at once to avoid something serious being done with him, and when she arrived told her plainly what they intended to do if she did not fix it up at once, and took her to the office of their attorney and had her execute satisfactory security.
The answers to special questions 5 and 6 are not consistent with the theory and definition of duress. They find that the cashier made the statements through a desire for gain and that the gain was to protect interested parties. From the record it would seem that the interested parties were mainly the holders of the other two mortgages and Joe. It is contrary to reason to think of Joe being unable through threats and fear to exercise his own free will and judgment, either when he signed the first note and got a check at the same time for $508.50, or the next day when he signed the note involved in this action with four other signers on it and got back the note he alone had signed the day before. Threats communicated to the parents through such an interested channel are not within the definition of duress as above quoted.
The appellant has assigned numerous errors, but it is only necessary to consider the insufficiency of the testimony to support the verdict. (Milling Co. v. Fruitiger, 113 Kan. 432, 215 Pac. 286.)
It was error to overrule the demurrer of the plaintiff to the evidence of the defendants and also to refuse to give a peremptory instruction to return a verdict for plaintiff.
The judgment is reversed and the cause is remanded with instructions to render judgment for plaintiff. | [
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The opinion of the court was delivered by
Burch, J.:
The first of the above-entitled actions was one by the city of Holton against the city of Soldier and the Kansas Power and Light Company, to enjoin breach of a contract between plaintiff and the city of Soldier. Similar cases were commenced by Holton against the cities of Mayetta, Circleville and Havensville, and the Kansas Power and Light Company, to obtain the same relief. The four actions were consolidated for trial, and judgments were rendered for plaintiff. The defendants appealed, and the appeals were heard together. Speaking generally, the legal questions involved are the same in all the cases. Some differences in the facts will be noted.
Holton, the county seat of Jackson county, is a city of the second class, and owns and operates an electric light plant. In a northwesterly direction from Holton are Circleville and Soldier, in Jackson county, and Havensville in Pottawatomie county. In February, 1916, Holton entered into contracts with Circleville, Soldier and Havensville to supply those cities and their inhabitants with electricity for periods of twenty years, the contracts, however, to be terminable at the end of ten years. Each contract provided that Holton would supply the current at the Holton plant, and that the purchaser would, in conjunction with others, construct, maintain and keep in repair at its own expense a transmission line from the Holton plant to the purchasing city. The transmission line was built, and Holton furnished current to the purchasing cities, which provided their own distribution systems. The contracts were not terminated at the end of ten years.
South of Holton is Mayetta. In March, 1923, Holton contracted to supply electric current at its plant to Mayetta for ten years, and thereafter unless notice of discontinuance were given. Mayetta agreed to construct, maintain and keep in repair at its own expense the transmission line. The transmission line was constructed, Mayetta provided its own distribution system, and current was furnished by Holton pursuant to the contract.
In April, May, October and December, 1928, the Kansas Power and Light Company purchased the transmission lines, and purchased the distributing systems within the various cities. The contracts were approved by the public service commission on the following dates: Circleville, June 7, 1928; Soldier, June 18, 1928; Mayetta, November 13,1928; Havensville, January 18,1929. Franchises were duly granted by the cities to the Kansas Power and Light Company to supply the cities and their inhabitants with electric current. The purchaser took possession of the transmission lines and distributing systems, and has been supplying the cities and their inhabitants with electric current produced at Holton.
The contract between Holton and the purchasing cities provided for installation by Holton of recording meters to measure the current supplied, for monthly meter readings, for verified monthly statements showing the current delivered during the preceding month, and for payment by the cities on the 15th of each month of a price per kilowatt for current delivered. After the Kansas Power and Light Company purchased the transmission lines and distribut ing systems, and without any negotiation or arrangement between Holton and the Kansas Power and Light Company, Holton sent its bills to the Kansas Power and Light Company, instead of to the cities, and the Kansas Power and Light Company paid the bills.
The Kansas Power and Light Company has a plant for the. production of electric current just outside the city of Topeka, in Shawnee county, and, previous to purchase of the transmission lines referred to, had a transmission line of its own to Hoyt, in Jackson county, south of Mayetta. After purchase of the transmission lines, the Kansas Power and Light Company reconstructed its own line from Topeka to Hoyt to carry a high voltage, and constructed a high-voltage line from Hoyt to Mayetta, but did not connect it. As indicated, the Kansas Power and Light Company purchased the line from Mayetta to Holton. Beginning two miles south of Holton, the engineers of the Kansas Power and Light Company surveyed a route extending two miles west and then due north to the purchased Circleville line, and on this route constructed about five miles of transmission line. Onaga, a city of the third class, lies south and west of Havensville, and the Kansas Power and Light Company constructed a line from Havensville to Onaga, but did not connect it. The ultimate purpose is to have a high-voltage line from Topeka to Onaga and beyond, passing through Hoyt and Mayetta, passing west of Holton, and passing through Circleville, Soldier and Havensville.
In November, 1929, Holton commenced an action against Circle-ville and the Kansas Power and Light Company, to enjoin breach of the contract between Holton and Circleville,^ expiring in 1936, and commenced an action against Mayetta and the Kansas Power and Light Company to enjoin breach of the contract between Holton and Mayetta, expiring in 1933. In October, 1930, Holton commenced actions against Soldier and Havensville and the Kansas Power and Light Company, to enjoin breach of the Soldier and Havensville contracts, expiring in 1936. The actions were tried in November, 1930, and judgments were rendered on December 1,1930. The court made no findings of fact, but found generally all issues in favor of plaintiff.
The petition in each case alleged that on Holton’s entering into the contract with the purchasing city, it was necessary for Holton to invest large sums of money in machinery and equipment to fulfill the conditions of the contract. The superintendent of the water and light department of Holton testified the Holton plant had been so constructed as to provide capacity to supply the outside cities. The date when construction commenced was not given, and every city contract recited that Holton “owns and operates an electric light, and power plant in the city of Holton.” The Mayetta contract was not made until seven years after the others were made. The superintendent did not testify that capacity of plant or amount of expenditure was determined with reference to any previously incurred obligation to supply any outside city, and so far as the evidence disclosed, Holton merely improved opportunity to preempt an unoccupied field, and constructed a plant having sufficient capacity to enable it to do so.
The petition in each case alleged that the Kansas Power and Light Company assumed performance of the contract between Holton and the defendant city. The proceedings at the trial disclosed an express contract of assumption was meant. The answers denied that the Kansas Power and Light Company assumed performance of the Holton contracts.
There was evidence that the agent of the Kansas Power and Light Company who negotiated with Soldier made oral statements that the Kansas Power and Light Company would assume Soldier’s contract with Holton, and made such statements both before and after the contract was signed. The contract of purchase contained no assumption. Soldier was represented by an attorney whose conduct indicated he knew that no contract to assume the obligations of the Holton contract could be enforced unless in writing, because of the ■statute of frauds, and knew that part performance would not save an oral contract to assume. When the contract between Soldier and the Kansas Power and Light Company was signed, he raised the question of assumption of the Holton contract. The writing of a letter by the Kansas Power and Light Company was discussed. The purpose was to get the Kansas Power and Light Company “under writing,” and a writing in the form of a letter was sent to the city at its request. The letter reads:
“To the Mayor and Councilmen of Soldier, Kansas: May 29, 1928.
“Gentlemen — Pursuant to your request, this will advise you that as a part of the consideration, to be paid to the city of Soldier for its electric distribution, and street lighting system and transmission line, the Kansas Power and Light Company, in lieu of cash, hereby assumes payment of principal and interest on $3,200 worth of bonds of the city of Soldier, Kansas, now issued and outstanding.
“We further understand that, in addition to the consideration stated in ordinance No. 154, we hereby agree to protect and save harmless the city of Soldier on account of any electric purchase contracts which it may have with the city of Holton, Kansas, and agree, in case litigation develops, to defend the city of Soldier and to pay any costs of such litigation incident thereto, we of course reserving the right-to employ our own attorneys in defense of such matter.
“We further understand that we are to assume the expense of ordinance publication, and should an election be called on account of petition of citizens, then and in that event the company will pay the cost of such election.”
There was no testimony purporting to state any conversation between the agent of the Kansas Power and Light Company and officials of Soldier, relating to assumption, occurring after the letter was received, and the uncontroverted testimony was that after the letter was received the contract with and the bill of sale to the Kansas Power and Light Company were mailed by Soldier to the Kansas Power and Light Company. The result is, the contract of purchase and the letter constituted the contract with Soldier.
The answer of the Kansas Power and Light Company in the Mayetta case denied allegations of the petition not expressly admitted. Then followed the admissions — corporate capacity of the city and of the Kansas Power and Light Company, the contract between Holton and Mayetta, the granting by Mayetta of the franchise to the Kansas Power and Light Company, and the sale by Mayetta to the Kansas Power and Light Company of the transmission line and distributing system owned by Mayetta. Assumption of performance of Mayetta’s contract with Holton was not admitted. Then followed affirmative defenses. The first defense was that the contract between Mayetta and Holton was void. The second defense was that the sale by the city to the Kansas Power and Light Company was duly approved by the public service commission of Kansas, as required by the laws of the state of Kansas; that the Kansas Power and Light Company assumed only such obligations under the contract as were incumbent on the city, and agreed to hold the city harmless relative thereto; and that a copy of the order of the public service commission was attached to and made a part of the answer. The third defense was that if the Holton contract was of any force, Holton had a plain and adequate remedy at law in case the contract was breached. The answer in the Circleville case was of like tenor.
The contracts between the Kansas Power and Light Company and Circleville, Havensville and Mayetta were produced at the trial. The contracts with Circleville and Havensville contained no assumption clause whatever. The contract with Mayetta contained the following assumption provision:
“It is further agreed that, as a part of the purchase consideration, the company shall assume.all of the litigation of certain contracts now in effect by and between the city of Mayetta and the city of Holton, Kansas, and Denison, Kansas, and Holton-Wigwam Light Co., and the company hereby binds itself to hold the said city of Mayetta harmless in connection therewith.”
Each petition contained an allegation that the defendant city and the Kansas Power and Light Company were threatening to and were about to disconnect the transmission line from Holton, and were threatening to and refusing to continue to fulfill the conditions of the contract. The evidence was that up to the time of trial there had been no refusal to comply with the terms of the contract. There was no evidence of any communicated or otherwise manifested threat to disconnect the lines from the Holton plant before any city contract expired. The activities of the Kansas Power and Light Company have been described. It was placing itself in position to supply current directly from Topeka to Onaga and beyond. This was construed by Holton as a threat to disconnect from Holton, but there was no evidence of intention immediately to disconnect.
The answers of the Kansas Power and Light Company denied threat to disconnect from Holton, but pleaded the contracts between Holton and the outside cities were void. The testimony was that the question whether the contracts were void came up after injunction suit was commenced. The attorney for the company, who was a director and secretary, advised the company he could not guarantee that the contracts were good or were bad. His opinion was that if the contracts were good they would be carried out; otherwise they would not be carried out; but he did not know the attitude of the company.
In selling electric current to outside cities Holton acted purely in its private, proprietary capacity, and as a producer and seller of electric current it stood on the same footing as the Kansas Power and Light Company.
The contract between Holton and each purchasing city contained the following provision:
"The first party agrees to furnish and sell to second party from its power plant electric current for light and power purposes, and shall furnish the same' during the twenty-four hours of each day, sufficient for the wants of the second party under the terms and conditions of this contract, and said second party agrees to purchase all the electric current used by it from the first party during the period of this contract.”
Defendants contend the contract lacked mutuality of obligation, and consequently was void. The contention is the city did not promise to use, and hence purchase, any electric current. Defendants agree that a promise is a good consideration for a promise, but they say the city gave no promise to use, and hence to buy, in return for Holton’s promise to sell. The so-called “will, wish and want” cases are cited in support of this contention.
The cases applying and misapplying the principle involved are numerous. By what this court regards as the better reason and the weight of authority, contracts of the precise nature here involved are regarded as containing what is called implied promise not to. purchase elsewhere. This promise is a good return for the promise to sell, and the requirement of mutuality is satisfied.
In this instance it cannot be denied that use of electric current by the purchasing city, according to the needs of the city and its inhabitants, was regarded by the parties as of the essence and substance of the bargain. Pursuant to the contract, transmission line and distributing system were installed, electric current was used, electric current is still used, and the franchise to the Kansas Power and Light Company negatives idea of discontinuance of use. While the quantity to be used could not be determined in advance, and would likely vary from time to time, the city promised to buy from Holton all that was used. The positive engagement excluded purchase from anyone else. While a promise not to purchase from anyone else was not “expressed” in those very words, the promise is implicit in what was expressed, and the essentials of a valid contract are present. Selected decisions supporting this view are assembled in the opinion in the case of Imperial Refining Co. v. Kanotex Refining Co., 29 F. 2d 193, C. C. A. 8th circuit (1928). The distinction between contracts of the kind here involved and true “will, wish or want” contracts is made clear, and another review of the authorities is not necessary.
As indicated, the action was one for injunction. The prayer of the petition follows:
“That on the final trial of this cause said defendants be permanently enjoined from violating the terms of said contract, and for such other and further relief as to the court may seem equitable and proper.”
The judgment reads:
“It is therefore considered, ordered, adjudged and decreed that the defendants, and each of them, in the above-entitled cause, be permanently enjoined and restrained from violating any of the terms of the contract set out in plaintiff’s petition herein . . .”
The contract not to buy from anyone but Holton created a negative duty on the part of the city. Speaking generally, a court of equity may prevent breach of a negative duty by injunction. Holton invokes the negative covenant of the contract, and relies on the cases in which breach of such covenants was enjoined.
In the case of Kemble v. Kean, 6 Simons Ch. 334 (1829), the English actor Kean broke his contract to act at Covent Garden in London and not to act elsewhere. The vice chancellor held he could not make Kean perform the affirmative covenant by sending him to the Fleet, and so would not restrain him by injunction from breaching the negative covenant. This decision was disapproved by the lord chancellor in the case of Lumley v. Wagner, 1 De Gex Mac. & G. 604 (1852). In that case Mile. Johanna Wagner, cantatrice of the court of his majesty the king of Prussia, broke her contract to sing at a theater in London and not to sing elsewhere. The lord chancellor vindicated the power of the court of chancery to enjoin breach of the negative covenant, even although he could not compel performance of the affirmative covenant, and allowed injunction. The lord chancellor admitted he had no power to compel mademoiselle to sing, but he opined that if he enjoined her from singing elsewhere, she might be induced to keep her engagement. The lord chancellor did not know the lady. She did not sing in London.
At one period of the history of the United States everybody knew of Lajoie, the incomparable second baseman for Philadelphia, and a great all-around ball player. He broke his contract. The lower court denied injunction, and the supreme court reversed the judgment. The supreme court said that while Lajoie might not be the sun, he was a bright particular star in the baseball firmament, and while he could not be compelled to play on the Philadelphia team, he could be restrained from playing with any other club. (Phila. Ball Club, Ltd., Appellant, v. Lajoie, 202 Pa. St. 210.) This effort to induce performance by negative injunction also failed.
The foregoing were cases involving personal services of unique kind. To enjoin breach of contract for rendition of ordinary service would tend to commit to involuntary servitude. There are cases not involving personal service in which the object of relief by injunction was to induce performance of affirmative covenants. All such cases may be left at one side. There is no doubt that injunction may be beneficially employed in aid of relief by specific performance, and there is a field for the use of injunction when specific performance may not be compelled. But the court is not concerned with such cases. The petition in this case was not drawn on the theory the contract contained a negative covenant, breach of which was to be enjoined, and the injunction was not granted on that theory. The purpose of the petition and of the judgment was to compel performance of all the covenants of the contract, and the principle stated in the opinion in Smith v. Myers, 130 Md. 64, applies:
“A suit for an injunction which seeks to accomplish all the purposes of a decree for specific performance is subject to the principles which apply to an application for the latter remedy, . . . .” (p. 67.)
The cities are now powerless to perform the contracts. They have no transmission lines, they have no distributing systems, the supplying of electric current to the cities and their inhabitants has been granted away, and the taking of electric current by the cities from Holton is an impossibility.
The public service commission approved the contracts of sale to the Kansas Power and Light Company,'directed that the proceeds of sale be applied on outstanding obligáti'ons of the cities incurred in erecting or purchasing their plants, and directed that the balance be paid into the general revenue funds of the cities. The sales were for cash, except that the power and light company assumed payment of some bonds issued by Soldier. Presumably the sale prices have been paid, and the proceeds have been applied as directed. The approved contract with each city provided that the city would grant a twenty-year franchise to the purchaser to supply the city and its inhabitants with electric current. The franchises were granted, and Holton acquiesced in the situation thus created. The contracts between the Kansas Power and Light Company and Circleville and Mayetta were approved by the public service commission on respectively June 7, 1928, and November 13, 1928, and actions against those cities were not commenced until November 13, 1929. The contracts between the Kansas Power and Light Company and Soldier and Havensville were approved on respectively June 18, 1928, and January 18, 1929, and actions against those cities were not commenced until October 2, 1930. Under these circumstances, the court could not nullify what had been done and compel restora tion of the relations existing between the cities and Holton before the sales to the Kansas Power and Light Company had been consummated, either by injunction against breach of the negative covenant, or by direct action for specific performance.
The injunction runs against the Kansas Power and Light Company. There is no contention the Kansas Power and Light Company is an assignee, and it is not. It entered into its own arrangement with the cities. The contracts between the cities and the Kansas Power and Light Company were all in writing. Nothing whatever was assumed in any contract with respect to the Holton contract, and only two contained agreements to indemnify.
There is a contention in Holton’s brief that the Kansas Power and Light company pleaded or ¿dmitted in its answers in the Mayetta and Circleville cases that it assumed performance of the Holton contracts. The pleading is set out above, and is susceptible of no such interpretation. The pleading was so framed that it denied assumption unless assumption were expressly admitted, and there was no such admission. The first defense was nonexistence of any obligation of the city under the Holton contract. The second defense was a sale approved by the public service commission, and that defense neither alleged nor admitted that any obligation remained incumbent on the city. The statement regarding holding the city harmless was a statement of the effect of a provision of the contract between the city and the Kansas Power and Light Company. The contract was produced in evidence. There was no uncertainty in its terms, and performance of the Holton contract was not assumed.
Having contracted with the cities to supply them with electric current, and having no physical connection with its own producing plant, the Kansas Power and Light Company paid bills for current delivered by Holton.
As indicated above, the Kansas Power and Light Company was careful not to bind itself in its contracts with the cities to fulfill any of the obligations of the Holton contracts. Therefore, in order that the Kansas Power and Light Company should be bound to Holton, it was necessary there should be a new contract between the Kansas Power and Light Company and Holton. There could be no contractual right on the part of Holton, and no contractual duty on the part of the Kansas Power and Light Company, unless the terms of the right and duty were fixed by the parties. The manager of the Holton plant testified as follows:
"Q. You bill the power company instead of billing those cities? A. Yes.
“Q. There was nothing said one way or the other about it? A. No.
“Q. You just sent bills to the power company instead of sending them to each of these cities? A. Yes.”
So Holton was proponent. It voluntarily sent bills to the Kansas 'Power and Light Company for current delivered. It did not consult the Kansas Power and Light Company, and did not indicate that anything more was involved than payment of the bills. The Kansas Power and Light Company paid the bills without indicating anything more than that it was paying the bills. What Holton had in mind is not material. That only is material which words or conduct of the Kansas Power and Light Company warranted Holton in believing, and the facts stated disclosed to Holton no recognition of obligation on the part of the Kansas Power and Light Company beyond the implied obligation to pay for what it got. There was no manifestation of assent to be bound for periods of years by all the terms of elaborate written contracts which had neither been assigned nor assumed. Whether the Kansas Power and Light Company incurred liability to Holton for inducing breach of the Holton contracts is not material in this action. The action and judgment were for specific performance of the contract, and there was no contract on the part of the Kansas Power and Light Company to be performed.
The foregoing renders it unnecessary to refer to various interesting subjects discussed in the briefs.
The judgment of the district court in each case is reversed, and the cause is remanded with direction to render judgment for defendants.
Sloan, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one for compensation for death of a workman. Compensation was allowed. The employer appeals.
Two women claimed compensation as the workman’s widow, and the parents of the deceased workman claimed as dependents. The commissioner of compensation said that much of the testimony was false, and was given for the purpose of supporting claims to compensation, and stated the following findings:
“It is found that Thelma Freeman, .widow, and Thelma Freeman, guardian of William Wyatt, Jr., is entitled to compensation for the death of Benson Freeman. It is further found that Tamer and Monroe Freeman were not dependent upon Benson Freeman at the time of his death.
“It is further found that Irena Freeman was not the legal widow of Benson Freeman at the time of his death.
“It is found that Benson Freeman died as the result of a personal injury by accident arising out of and in the course of his employment.”
An award of compensation was made accordingly. An appeal was taken to the district court, which confirmed the commissioner’s award.
Irena Freeman, who claimed she was the common-law wife of the workman, did not appeal from the judgment of the district court. The parents appealed. So far as this court knows, the testimony in their behalf was disregarded by the commissioner and by the district court. The employer appealed from the award to Thelma Freeman, and makes two contentions: First, Thelma Freeman was not the legal widow of the workman; and second, there was no competent evidence that death of the workman was the result of accident.
Thelma Wyatt was divorced from her husband on March 22, 1929. Two weeks later, on April 5, she married Benson Freeman, the workman. The statute reads:
“It shall be unlawful for either party to such divorce suit to marry any other person within six months from the date of the decree of divorcement; ... and every person marrying contrary to the provisions of this section shall be deemed guilty of bigamy, and such marriage be absolutely void.” (R. S. 60-1512.)
The result is, the formal marriage of Thelma and Benson Freeman was void. They continued, however, to live together as husband and wife after expiration of the six months’ period, and were so living together at the time of his death, which occurred on September 13, 1930. This being true, after the time elapsed within which Thelma was forbidden to marry, she was Benson’s common-law wife {Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534), and at his death she became his widow.
Previous to 1927, the definition section of the workmen’s compensation act read as follows:
“In this act, unless the'context otherwise requires: . . . O') ‘Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. ‘Members of a family,’ for the purpose of this act, means only widow or husband, as the case may be, . . .” (R. S. 44-508.)
In 1927 the statute was amended by inserting the word “legal” before the word “widow.” (R. S. 1931 Supp. 44-508 [;'].) The word “legal” has a variety of meanings: conforming to law; according to law; required or permitted by law; not forbidden or discountenanced by law. (Black’s Law Dictionary.) The word also means “good and effectual in law,” and in that sense Thelma was Benson’s legal widow.
In many instances it would be insufferably unjust to deny compensation to the survivor of a common-law marriage. If the legislature intended to do that, it would have been easy to express the intention in unambiguous terms. Under these circumstances, the court conceives the purpose of the amendment to have been to deny compensation to any survivor who cannot show a marriage which the law recognizes, and to deny compensation to the survivor of a marriage contracted according to formal legal requirements, but in fact of no legal effect. A marriage declared by statute to be incestuous, as between first cousins, is an example. Another example is the marriage of Thelma and Benson during the period within which the law did not recognize it as valid for any purpose. This interpretation gives to the word “legal” a meaning not merely technically correct, but correct according to approved usage in lay speech (R. S. 77-201, Second), allows scope for operation of the statute, and avoids undue severity of result in application.
The commissioner as an administrative officer heard testimony concerning the subject of death resulting from accidental injury, not admissible under the rules of evidence applicable to procedure in court. He was permitted to do this by statute (R. S. 1931 Supp. 44-523). In reviewing the commissioner’s work, the courts may not nullify it by applying their own standards; and if the commissioner’s decision be based on substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence governing procedure, the decision will be upheld. (Holt v. Peterson Construction Co., 134 Kan. 149, 151, syl. ¶ 2.) In this instance it is not necessary to discuss the evidence in detail. There was competent and relevant testimony sufficient to sustain a finding by a jury in the trial of an action, that the workman’s death was the result of accident occurring in the course of his employment.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appellant was convicted of violating the liquor law, and appeals.
Defendant says his contention generally is that the evidence of the state as a whole was not sufficient to warrant conviction of anything charged in the informatiosi. The information contained five counts. Defendant was convicted on two counts only, the first charging possession of intoxicating liquor, and the second charging a sale. Speaking generally and specifically, there was abundant evidence to sustain conviction on those counts, which are all that are involved here.
Witnesses for the state undertook to minimize or nullify the effect of testimony they had given at an inquisition held by the county attorney, showing defendant was guilty. The court permitted the county attorney to do what is necessary to be done in such cases, and defendant makes several complaints about that. This feature of the case is governed by the decision in the case of State v. Smarsh, 117 Kan. 238, 231 Pac. 52.
Complaints about instructions are without merit, and other complaints of the proceedings are so lacking in merit they need not be mentioned.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose several mechanics’ and materialmen’s liens. Judgment was for plaintiffs and certain cross petitioners who claimed liens. Defendant appeals.
The case turns upon the interpretation to be given a contract to repair a house. The first paragraph of this contract was as follows:
“This agreement made and entered into this 14th day of March, 1930, by and between Hallard and Fuller, contractors, in Wichita, Sedgwick county, Kansas, party of the first part, and C. J. Kinney, Wichita, Sedgwick county, Kansas, party of the second part, witnesseth:”
Another clause was as follows:
“The said party of the first part agrees to furnish all the material for such construction and repairs of said building as may be required by the plans and specifications aforesaid, and further agrees that he will not permit or cause any lien to be filed against the property by reason of any work or material that may be done or furnished in connection with such remodeling, it being understood and agreed by the parties that the contract price is to be eighteen hundred ($1,800) dollars for a turnkey job and the party of the first part has satisfied himself that the loan company MU handle a loan when the job is complete and that there is no money to be paid by the parties of the second part, but that the loan is to be secured and the payment made therefrom. Geo. E. Hasty is to be the judge as to whether or not the work has been done in a workmanlike manner and this contract satisfactorily complied with.”
The contract was signed by H. K. Hallard, party of the first part, and C. J. Kinney, party of the second part.
We have no question before us as to whether the contract was fully complied with since under the pleadings the judgment in favor of appellees is a finding of all disputed questions of fact in their favor. The house was duly repaired and is now being rented and is bringing in an income to appellant.
Appellant points out first that by the first paragraph of the contract in question it purports to be between Hallard and Fuller, contractors, parties of the first part, and C. J. Kinney, party of the second part. He then points out that it was not signed by Fuller, but only by Hallard and Kinney. He points out that there can only be a lien under and by virtue of a contract with the owner of the real estate. He argues that since the contract purported to be the contract of Hallard and Fuller and was signed only by Hallard it was no contract at all, and hence cannot be made the basis for liens.
The contract was fully performed by Hallard. This suit is here because Kinney was unable to secure a loan sufficient to pay the cost of the remodeling and repairing. Under the circumstances we have concluded that the case is one for the application of the rule laid down in Boyd v. Colgan, 126 Kan. 497, 268 Pac. 794. There the court, in considering a lease that had been made to two persons and signed by only one of them, said:
“It is quite correct that a binding contract is not effected where a person merely signifies his willingness to contract with two designated persons and that proffered agreement is accepted by only one of them, or by one of them and a third, or by third persons to whom the offer was not made. It is every man’s right to select the persons with whom he will enter 'into contractual relations. (Corley v. Ehlers, 99 Kan. 748, 163 Pac. 140; 1 Page on Contracts, par. 193; 13 C. J. 273; 39 Cyc. 1203.) But it is also the privilege of an offerer to waive any terms prescribed by him as a basis for his assent to a proposed agreement; and when defendant signed and acknowledged this contract and permitted it to be recorded, although it only contained plaintiff’s signature and his own, and when he received from plaintiff the sum of $20 as part of the first year’s rental and retained it, this court is constrained to hold that the want of Campbell’s participation in the contract was waived and the agreement became effective between the signatories thereto.” (p. 499.)
Where appellant permitted Hallard to enter upon the performance of the contract and watched him as he completed its performance and now is enjoying the fruits of the contract to the full extent, it would be a harsh rule which would hold that the property which had been enhanced in value by the labor and materials of appellees was not subject to a lien to pay for this labor and material.
Appellant waived the failure of Fuller to participate in the execution of the contract when he permitted these things to occur.
Appellant points out the clause of the contract heretofore quoted, wherein the party of the first part agrees that he will no"t permit or cause any mechanics’ liens to be filed against the property. He argues that the subcontractors, appellees herein, were bound to take notice of that clause in the contract and hence can have no liens under its terms.
This clause in the contract is coupled with a promise on the part of Kinney to obtain a loan on the building sufficient to pay the contract price. Kinney did not obtain this loan. Whether it was because of the fact that he had no income or because he was, shortly after the completion of the building, declared incompetent and a guardian appointed for him, we do not know. What we do know is that relying on the promise to secure a loan and pay the contract price appellees here furnished sufficient labor and materials to complete the building, and appellant is now enjoying the fruits of the labor and material. We have concluded that this is a case for the application of the equitable principles with reference to a mechanics’ lien that are laid down in Mercantile Co. v. Investment Co., 100 Kan. 597, 165 Pac. 279. There the court said:
“While mechanics’ liens and the rights thereunder are statutory, their foreclosure and adjustment are not governed exclusively by the rigid rules of law, but to them also apply the familiar principles of equity.” (Syl. II7.)
Kinney knew while appellees were furnishing the materials and performing the labor that he was not going to be able to get the loan. There can hardly be a more inequitable proceeding imagined than to hold that while knowing this he could permit appellees to furnish the labor and material necessary to complete the building and still have the property free from any lien. This contention of appellant is not good.
There is a point made by appellant that appellees were permitted to introduce a copy of the contract in question without sufficient proof that the original was lost. This point is not good.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
There is but one question of laAV to be decided in this case; and the most favorable statement of facts that can be made for the plaintiff in error so as to present that question of law is as follows: Baker and Robbins owned adjoining farms, fenced in common—no partition fence having-been made between them, though they used their farms in severalty. Baker turned a herd of cattle righfully upon his own premises, without the consent of Robbins however, and lcnowing-ly permitted them to wander upon the premises of Robbins and do great injury to a crop of wheat. Robbins sued Baker, and the only question for us to determine is, whether Baker is liable for said injury. We think he is. We suppose that it is settled beyond all controversy, that at common law the owner of cattle was required to take care of them, and not allow them to stray or wander upon the land of another, whether such land was fenced or not; and if he did allow his cattle to so stray or wander he was liable for all injuries they might commit. Now, as the common law. has been adopted in this state by statutory enactment, we suppose it must necessarily follow that every owner of cattle must take care of them or be liable for all. injuries they may commit by roaming on the land of another, except where the statutes elsewhere and otherwise «provide. ' We have statutes that provide for erecting and maintaining partition fences: Gen. Stat., 488, 492, articles 3 and 4. And where either party chooses to build and maintain partition fences under these statutes probably the statutes are the measure of his rights, remedies, and liabilities. But where both parties choose to do otherwise than to build and maintain a partition fence under the statutes the common law must govern. The statutes do not require the parties to build partition fences. They may otherwise agree if they choose: Gen. Stat., .488, §8; and where, they agree that they will not build any partition fence, as it must be presumed was the present case, the rights, remedies and liabilities of the parties must be governed by the common law. The parties in this case fenced their fields in common, and neither ever' attempted to- build or have built a partition fence. We would refer to the following authorities: Myers v. Dodd, 9 Ind., 290; Johnson v. Wing, 3 Mich., 163; Henderson v. Rust, 39 Ill., 186; McCormick v. Tate, 20 Ill., 334, 338; Buckmaster v. Cool, 12 Ill., 74; Stoner v. Shugart, 45 Ill., 78; Rust v. Low, 6 Mass., 91, 101; Little v. Lathrop, 5 Me., 356.
• Authorities with reference to cattle running at large upon open and uninclosed lands, and' from there wandering upon the lands of others, cannot of course have any application to this case. Nor can authorities concerning statutes or fence laws which differ from ours, have any application to this case.
• If we have failed to consider any point which counsel have desired us to consider we would refer to Rule 2 of the supreme ■court, (5 Kas., 9; 6 Kas., 11,) as a sufficient reason for the omission. We have considered and decided the main question in the case, although counsel have not referred us to a single page of the record. The judgment of the court below is .affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dillon, Circuit Judge:
'Without express legislative authority the city of Iola would have no power to appropriate money or to loan its credit to aid private persons to establish manufactories either near to or within the corporate limits. This proposition admits of no dispute, and is well settled. Stetson v. Kempton, 13 Mass., 278; Cushing v. Newburyport,10 Met., 510; Cook v. Manufacturing Co., 1 Sneed, (Tenn.) 698; Penn. Pailroad Co. v. Philadelphia, 47 Penn. St., 189; Dillon’s Munic. Corp., § 106. No precedent authority, either by general or special act, was conferred upon the city to pass the ordinance to provide for the holding of the election to determine whether the citizens would extend the proposed aid to the Bridge Manufactory and Foundry. The adoption of the ordinance and the holding of the election were without color of law. But subsequently the legislature passed the act mentioned in the statement of the case, which undertook to legalize the election, and to authorize the issue of the bonds in question. The bonds were issued under the authority of this act, and so the declaration alleges. Their binding obligation upon the municipality depends upon the validity of this enactment, and the question of its validity is raised by the demurrer to the declaration.
Against the act two objections are urged in argument: 1st, That it contravenes certain special provisions of the constitution of the state. 2d, That it authorizes the levy and col lection of taxes for objects or uses not within the scope of the taxing power. The act whose constitutionality we have to determine purports to legalize the prior election in Iola and to authorize the issue of bonds pursuant to that election. It the legislature might have passed such an act prior to the election, it will not be disputed that it can ratify and confirm an election held without it; but the legislature, it is clear, cannot do by a curative or retrospective act what it could not have previously authorized. (Cooley, Cons. Lim., 281.) The act, Avhich Avas passed and Avhich Avent into effect February 23, 1871, after reciting the election and legalizing it, authorizes the city to appropriate $50,000 to aid in the erection and equipment of buildings at or near Iola, to be used for the purpose of manufacturing bridges, ploAvs and stoves, and to issue and deliver the bqnds of the city, Avith coupons attached, payable in fifteen years, and enjoins that it shall levy and collect taxes to pay the principal and interest of the bonds. It is objected that this act violates § 1 of article 12 of the constitution of the state, Avhich provides that the legislature shall pass no special act conferring corporate poAA'ers. That the act in question is a special act is so plain as not to justify extended discussion. 'It is not only limited in its application to the city of Iola, but to a single election, and the issue of specific bonds. Never Avas an act more manifestly special. It seems to me to be almost equally clear that it is an act Avhich undertakes to confer upon the city corporate powers. It ratifies an election held by the city, and authorizes it to do AAdiat, Avithout an express grant, no municipality can do, namely: to issue bonds in aid of a manufacturing enterprise, and to levy and collect taxes to pay such bonds. If the power to create a debt binding upon the municipality, and to lay burdens upon all the property Avithin it to pay the debt created, is not a corporate power, it is difficult to conceive Avhat could justly be regarded as such. The powers given by the terms of the act under discussion are the most important of any which can be conferred upon municipal corporations. They are, indeed, precisely the powers the exercise of which is most to be feared, and which were particularly liable to be unwisely conferred by special legislation. If this prohibition in the ■constitution (§ 1, article 12) applies to municipal corporations, .the special act in question plainly contravenes it. Whether the ,12th article of the constitution of Kansas quoted in the statement of the case was designed to apply to municipal corporations might admit of some discussion if the question were res ■.nova. This article is taken from the constitution of Ohio. And the supreme courts,, not only of that state, but of Kansas, .have, upon full consideration, repeatedly decided that it did .include municipal corporations. Atchison v. Bartholow, 4 Kas., 124; Wyandotte City v. Wood, 5 Kas., 603; The State v. Cincinnati, 20 Ohio St., 18, following Atkinson v. Railroad Co., 15. Ohio St., 21. In the case-first- cited, the-supreme court of rthe state of Kansas held that the constitution compelled the legislature to regulate the grant of powers to municipal corporations by general laws; and hence a special act, or an .act specially amending the charter of the city of Atchison, in respect to making local improvements and local assessment, was void. In the case next’cited (Wyandotte v. Wood,).the same court adhered to this view, and accordingly held that an act of the legislature specially extending the limits of the city of Wyandotte was unconstitutional, because it contravened both sections one and five of article 12 of the constitution.So, in the case of The State v. Cincinnati, above cited, the supreme court of Ohio, under the same constitutional provisions, held that the legislature cannot by special act create a .corporation; nor by special act confer additional powers on a -corporation already existing, and that in these respects there was no difference between private and municipal corporations, .since the constitution equally embraced and equally applies to both classes; and therefore the act of April 16, 1870, “to prescribe the corporate limits of Cincinnati,” being consid erecl a special'act, was adjudged void. See also Atkinson v. Railroad Company, supra. In this last case, Ranneyy J., thus expounds the constitution: “ These provisions of the constitution áre too' explicit to admit of the '-least doubt that they were intended to disable the general assembly from either creating corporations, or conferring upon them corporate powers, by special acts of legislation. It was intended to correct an existing evil, and to inaugurate the policy of placing all corporations of the same kind upon a perfect equality as to all future grants of power; of making such law applicable to all parts of the state, and thereby securing the vigilance and attention of its whole representation; and finally, of making all judicial construction of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class. We must give such a construction to the constitution as will preserve its leading objects intact.” One of these objects in 'Kansas, as well as in Ohio, was to cut up by the roots the mischief of special legislation, particularly in respect to corporations, both public and private.' The object would be defeated if the special act relating to the city of Iola could stand. If under the doctrine of Butz v. Muscatine, 8 Wall., 575, this court is not absolutely bound, in this class of cases, to follow the interpretation of the state constitution given by its highest court, yet it seems that it ought to follow it where it appears to rest upon solid grounds, and was made in cases and in respect to questions where there was nothing to warp the judgment of its judges, and where the interpretation was settled or had been declared at the time the act in controversy was passed. In the latest case on this subject, decided by the supreme court of the United States, it is not denied that the supreme court of a state is the appointed expositor of its constitution and laws, and that the federal courts will adopt as rules for their own judgments the decisions of the highest courts of the state “respecting local questions peculiar to itself, or respecting the construction of its own constitution and laws.” It only denies the binding force of state adjudications which rest upon the general prin-
ciples of law, and not upon tlic meaning of special constitutional or legislative provisions. Olcutt v. Supervisors, U. S. Supreme Court, Dec. Term 187-2. I think the present case is* one in which it is the duty of this court to follow the decisions-of the state supreme court; and so far as my decision rests-1 upon the special provisions' of the constitution above referred'to, I place it upon the state adjudications without'ah inquiry' into their soundness.
But suppose the enactment under which the bonds in question were issued is not “a special act conferring corporate;powers,” within the meaning of the constitutional prohibition, the other objection made to the validity of'the bonds-remains to be considered. The act authorizes the creation of a debt by the municipality to raise money by the issue of bonds-to be given as a donation' or bonus “ to aid in the-erection and completion of buildings at or near tire-' Qpy 0f j0ia to be used for the purpose'of manufacturing Z. King’s pátent bridges, and as a foundry, and ironworks ;” and the act also authorizes and requires the levy and collection of such taxes as maybe necessary to- pay the interest and principal of these bonds. It is important to be observed, that this is undeniably a private enterprise. These -buildings - and works are the private property of the owners. No public- or municipal control over this property or the enterprise aided. is specially reserved or provided for, and none exists different, from that which exists as to all other property owned by private-; persons and devoted to private uses. The proprietors of these-works are under no obligation, by reason of the aid extended.,, and the burden of taxation thereby imposed upon the municipality, to render it or the state any duty or service whatever" —not even to repay the loan, or to maintain for any specified time the contemplated manufacturing enterprise. The state.- or city could not compel them to complete or operate the-works, or prevent their removal at pleasure to some other ■ locality. And thus we have presented the inquiry, than, which no question concerning the property-rights of the citizen is of more transcendent moment, viz.: Whether the- legislature may thus compel or coerce the citizen to aid in the -establishment of purely private enterprises or objects, because these will or may incidentally promote the general good of 'the community or locality. I think it safe to affirm that no ,-such principle has yet received judicial sanction. On the ■contrary, the principle has been declared unsound by courts of the highest respectability. The general subject of the .extent of the taxing power in connection.with municipal aid •to railways has been thoroughly discussed in a majority of the .states of the Union, and recently by the supreme court of the United States. (Olcutt v. Supervisors, and Railroad Co. v. Otoe County, December Term 1872.) The courts everywhere .have agreed that taxes can lawfully be inrposed for public purposes only; and therefore, in .the language, of Chief Justice-Black, “The legislature has no ■ constitutional right to ■create a public debt or authorize any municipal corporation to do it, in order to raise funds for a mere private purpose. su°k authority passed to the assembly by the general grant of legislative power. This would not be legislation. Taxation is a mode of raising-revenue for public purposes. . When it is prostituted to' objects in no way connected with the public interests or welfare, it ceases to be taxation and becomes plunder. Transferring-money from the owners of it into the possession of those who .have no title to it, though it be done under the name and form ■of a tax, is unconstitutional, for all the reasons which forbid the legislature to usurp any other power not granted to them. * * * An act of the legislature authorizing contributions to be levied for a mere private purpose, or for a purpose which though it be public is one in which the people ;from whom they are exacted have no interest, would not be a law, but a sentence commanding the periodical payment of a -certain sum by one portion or class of people to another. 'The power to make such order is not legislative but judicial, .and was not given to the assembly by the general grant of legislative authority.” Sharpless v. Philadelphia, 21 Penn. St., 147. Similar language is held by Mr. Justice Strong in delivering the opinion of the supreme court of the United States in the recent case of Olcutt v. Supervisors of Fond du Lac County, December Term 1872. The learned Justice there says, that “The taxing power of the state extends no further-than to raise money for a public use, as distinguished from private, or to accomplish some end public in its nature.” Again, he says: “No one contends that the power of a state-to tax, or to authorize taxation, is not limited .to the uses to-which the proceeds maj'- be devoted. Undoubtedly taxes may not be laid for a private use.” (See Freeland v. Hastings, 10 Allen, 570; Tyson v. School Directors, 51 Penn. St., 9.)
The only question therefore is, whether the use for which, taxation in the present ease is authorized is a public or a private-use. The supreme court of the United States in sustaining the-validity of legislative acts authorizing municipal aid to railways*, place it upon the distinct ground that highways, turnpikes*, canals, and railways, although owned by individuals under-public grants, or by private corporations, are pvblici juris; that they have always been regarded as governmental affairs*, and their establishment and maintenance recognized as among" the most important duties of the state, in order to facilitate^ transportation and easy communication among its different parts. Rogers v. Burlington, 3 Wall., 654; Mitchell v. Burlington, 4 Wall., 270; Railroad Company v. Otoe County, supra. Therefore it is, that in favor of such improvements the state may put forth its right of eminent domain, and also-as now established by judicial decisions, unless the right be denied in the constitution, its power to tax. That these acts may lawfully be done is, because, and only because, the uséis a public one, public in its nature, and hence these works are subject to public control and regulation, notwithstanding they may be constructed under legislative authority, and exclusively owned by private persons or corporations. Compulsory taxation in favor of railways, and like public improvements owned.by individuals or companies, is an exercise of power going quite to the verge of legislative authority-Although it is a doctrine that must now be considered as- Judicially settled, still it is one which has encountered a vigorous opposition, both on the ground of expediency and of power, and the exercise of the authority has been so disastrous as already, in some of the states, to have led to constitutional ■provisions for the protection of the citizen. But it is obvious, -from the statement of the grounds upon which such legislation •rasts, that it furnishes no support for the validity of taxation m. favor of enterprises and objects essentially private; and ¡such I consider to be the establishment of a bridge manu•feetory or foundry owned by private individuals. Cases may 'foe imagined giving rise to doubts, whether the use be public <or’private; but the one - in hand does not seem to be difficult •to class. It is certainly not- usual for the legislature to un-dertake to exercise the right of eminent domain to procure ..sites for hotels, banks, manufactories, stores and the like, and It may be safely said, unless extraordinary circumstances may occasionally furnish an exception, that private prop■•eiiy cannot lawfully be condemned for such purposes; and the reason is, that it would not be a taking for public use, nor justified by any reasonable necessity. So taxation to said ordinary manufactories, or the establishment of private enterprises, is a thing until recently quite unheard of; and the power must be denied to exist, unless all limits to the .-appropriation of private property, and to the power to tax, be -disregarded. The question under discussion must be determined upon some principle, and I hold it to be sound doctrine -that the mere incidental benefits to the public or the state, which result from the pursuit by individuals of ordinary "¡branches of business or industry, do not constitute a public -sise in the sense which justifies the exercise of either the power -of eminent domain or of taxation. If this salutary principle be abandoned, we unsettle the foundations of private property, .•¿and unwisely open the door for frauds and abuses of the most •¡alarming character.
That their views are sound, I entertain no doubt, but my -conviction of their soundness has been much strengthened by -the recent decision of the supreme judicial court of Massa chusetts, declaring unconstitutional the act authorizing the issue of what is known as the “Summer Street Fire Bonds.” In November 1872 a considerable portion of the city of Boston was destroyed by fire. In December following the legislature empowered the city to issue bonds to the amount of twenty-five millions of dollars, the proceeds of which three commissioners appointed by the mayor were authorized to loan in a safe and judicious manner, “in such sums as they shall determine to the owners of land, the buildings upon which were burned by the fire in said.Boston, on the 9th and 10th days of November. 1872, upon-the notes or bonds of said owners secured by first mortgages of said land; said mort-. gages to be conditioned that the rebuilding shall be commenced within one year from the first .-day of January 1873, and said commissioners to have full, power to apply the proceeds of said bonds in making said loans in such manner, and to make such further provisions, conditions and limitations in reference to said loans and securing the same, as shall be best calculated, in their judgment, to insure the employment of the same in rebuilding upon said land burned over, and the payment thereof to the said city.” In the late case of Loibell, •et al., v. Boston, the constitutionality of this act was the question to be decided. It will be seen that the object of this act, as shown by its provisions, was “to insure the speedy rebuilding on land the buildings upon which were burned” by the great fire; and the question was, as to the right of a ■state to impose any taxes for this object, and this depended upon the further question whether this object was, in a legal ■sense, a public object. The court distinctly held, to use the language of the rescript sent down in the case, that taxes can ■only be laid “for some public service, or some object which concerns the public welfare;” that “the preservation of the interests of individuals, either in respect of property or business, although it may result incidentally in the advancement ■of the public welfare, is in its essential character a private .and not a public object;” “that the incidental advantages to the public or to the state which result from the promotion of private interests, or the prosperity of private enterprises or1 business, does not justify their aid by taxation;” “that as a judicial question the case is not changed by the magnitude-of the calamity which has created the emergency.” And finally the court say, “The expenditure authorized by this-statute, being for private and not for public objects, in a legal sense, it exceeds the constitutional power of the legislature,, and the city cannot legally issue the bonds for the purposesnamcd in the act.” See also as to distinction between public and private use: Bloodgood v. Railroad Co., 38 Wend., 65; Allen v. Inhab. of Jay, Maine Sup. Court, July Term 1871; Jenkins v. Andover, 103 Mass., 94, holding invalid a statute-authorizing taxation in favor of a private incorporated academy. Same principle: Curtis v. Whipple, 24 Wis., 350; People v. Salem, 20 Mich., 452.
As the only authority for the issue of the bonds in question was an unconstitutional act of the legislature, they are void —void from the beginning, and void into whosesoever hands-they may have come. All persons must at their peril take notice of the power of municipal corporations or officers to-issue securities, and especially is this so where the want of power results from constitutional prohibitions or provisions.. The Floyd Acceptances, 7 Wall., 676; Marsh v. Fulton Co., 10 Wall., 676; Clark v. Des Moines, 19 Iowa, 199; Steines v. Franklin Co., 48 Mo., 167.
The demurrer to the declaration is sustained; and unless-the plaintiff desires to amend, judgment will be entered for-the defendant.
And judgment final was entered for defendant.
[* Sections 1 ancl 2 of article 13 of tlie constitution of Oliio is tlie same as ¿ 1, article 12, of the constitution of Kansas. Sec. 6, article 13, of the Ohio Constitution, is the same .as £5, article 12, of the Kansrs Constitution.] | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the recovery of real property. Charles P.. Bullock was the original owner of the land in controversy, the common source of title of both the plaintiff and the defendants. The plaintiff claims title to the land under a quitclaim deed from Bullock to himself, dated February 5th 1870. The defendants claim title under a sheriff’s deed executed November 17th, 1865, in pursuance of a judgment, execution, etc., against Bullock. And the whole controversy in this case, so far as it is now presented, depends-mpon the validity of said sheriff’s deed.
The sheriff’s deed was introduced in evidence prior to any •evidence being introduced to prove the existence of any judgment, execution, or sale. This was not erroneous. The ¡statute of this state concerning sheriff’s deeds, and sheriff’s .sales, provides that “The deed shall be sufficient evidence of the legality of such sale, and the proceedings therein, until the contrary be proved, and shall vest in the purchaser as good and as perfect an estate in the premises therein mentioned as was vested in the party, at or after the time w'hen such lands and tenements became liable to the satisfaction of the judgment.” (Civil code, Comp. Laws, 200, §450; Gen. Stat., 717, § 459.) The sheriff’s deed proves prima fade under said statute that the sale under which it was made was legal. This it could not do, unless it also proved prima fade that the judgment and execution under which the sale was made were also valid. A judgment cannot be void, and the sale made under it legal and valid. If the judgment is illegal and void the sale must also necessarily be illegal and void. A sheriff’s deed is therefore of itself prima fade evidence-that the grantee holds all the title and interest in the land that was held by the judgment-debtor at the time of the rendition of the judgment, or at any time thereafter up to the time of the sale of the premises; and it is prima fade evidence of the validity of the judgment itself. After the sheriff’s deed was introduced in evidence the plaintiff introduced the record of the oase in which the deed was executed to show that the deed, and all the proceedings upon which it-was founded, were void. The foundation of the deed was an action to foreclose a mortgage on the land in controversy. The service of the summons in said action was by publication in a newspaper. The defendant was never personally served, and he never made any appearance in the case. The plaintiff in this case claims that the service by publication was void, and therefore that the court never obtained any jurisdiction of the defendant in the foreclosure case, and therefore that the judgment in that case, and all proceedings under it, including the sheriff’s deed, were void. This kind of action, (that is, an action to foreclose a mortgage on real estate,) must be commenced in the county in which the-land is situated: Civil code, Comp. Laws, 132, §52; Gen. Stat., 638, §46. But a summons may be issued to any county in the state, and there be personally served upon the defendant: Comp. Laws, 134, § 66; Gen. Stat., 641, § 60. Where the defendant is a nonresident of the state, service may be made upon him by publication in a newspaper: Comp. Laws, 136, § 78; Gen.’ Stat.,. 642, §72. But “Before service can be made by publication, •an affidavit must be filed, that service of a summons cannot be made within this state, on the defendant or defendants, to be served by publication. * * * When such affidavit is filed, the party may proceed to make service by publication.” Comp. Laws, 136, § 79; Gen. Stat., 643, § 73. At the time this foreclosure suit was commenced the defendant Bullock was a nonresident of the state, having prior thereto gone from this state to the state of Missouri. But no affidavit was made or filed in the case showing that service of a summons could not be made personally upon him within this state. For this reason it is claimed that all the proceedings, including the sheriff’s deed, were void. There was an affidavit made and filed in said case for the purpose of obtaining service by publication; but from anything that appears in said ■affidavit the defendant may have been in Bourbon county, or .even on the land in controversy, when this affidavit was filed, and might therefore have easily been served with a summons in this state. This defect in the affidavit we think is fatal. 'The law is explicit and peremptory, and there is no way of evading it. The affidavit is the foundation upon which jurisdiction is obtained. The plaintiff has no authority or power to obtain service by publication until after he has filed the proper affidavit. Without the affidavit the attempted service by publication is a nullity. And without a valid service, every subsequent proceeding, including the judgment, the .execution, or order of sale, the sale, and the deed, must necessarily be void. Section 60 of the civil code of 1859, as .amended in 1860 (Comp. Laws, 133, § 60; id., 233, § 1,) has no application to this foreclosure case. The court below seems to have supposed otherwise: (see instruction No. 8.) This case was an action “for the sale of real property under a mortgage,” as mentioned in § 52 of said code, and was not the “other action” mentioned in said § 60 of the code. The •court below instructed the jury in the case at bar that they must find for the defendants. This was error. The judgment must therefore be reversed and cause remanded for a new trial.
All the Justices concurring, | [
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The opinion of the court was delivered by
Porter, J.:
This was a suit for divorce and alimony. The plaintiff recovered, and the defendant appeals.
The plaintiff, who is a negro woman, alleges that the defendant, a white man, is her husband by a marriage which she claims took place in Louisiana about 1904. The defendant’s true name is James E. Cox. On May 10, 1890, he was married in Indiana to Nellie A. Logan; they afterwards moved to Illinois and five children were born of that marriage. In March, 1902, the defendant abandoned his wife and family, assumed the name of James E. Brown, and lived at various places in the south until he came to Kansas! He denies that he and plaintiff were ever married, and alleges that in Louisiana it was unlawful for whites and blacks to marry. The plaintiff and the defendant lived together in Louisiana as husband and wife, and the defendant subsequently came to Great Bend, where he engaged in his trade of blacksmithing. Shortly thereafter the plaintiff followed him, and they lived there together until a short time before this suit was begun. In February, 1917, plaintiff wrote and mailed the following letter to the former wife of defendant:
Mrs. Anne'Cox, Great Bend, Kan., Feb. 5, 1917.
Dear Madam:
I write to let you know that I am a negro and that your former husband, 3. E. Cox and I have been living together for 13 years. I am his common law wife. I think it justice to you that you should know this. He has lived wit me under an assume name, J. E. Brown, and have denied you and your children and I just recently'knew he was a married* man, and after we were separated about three weeks ago was when I first learned of you, and science he has been in this country he has been passing as a negro. Included you will find postage. Please answer on return mail. Mrs. J. E. Brown or Lula Brown,
1102 Kansas Ave.”
Nellie A. Cox, the first wife of the defendant, secured a divorce from him in Indiana on January 29, 1912, but the fact was not known to either the plaintiff or defendant until after this suit was begun.
On the same day the petition was filed, and before service was had upon the defendant, the court made an ex parte order requiring the defendant within five days to pay. to the clerk of the court $50 for the use and benefit of plaintiff’s attorney, and to deposit $25 security for costs, and to pay to the clerk for the support and maintenance of plaintiff and her daughter the sum of $25; and to pay each thirty days thereafter a sum of $25 until the further order of the court. The case after-wards proceeded to trial on the merits, and the court refused to find that any marriage ceremony ever took place between the-parties, holding that if there was one, it was illegal and void under the laws of Louisiana, but that the plaintiff was the common-law wife of the defendant. The court granted her a divorce on the ground of extreme cruelty, setting apart to her two of the four lots owned by the defendant, including the lots upon which the residence is situated, and giving the defendant two vacant lots which defendant claims are worth about $150. In the decree the court allowed to plaintiff’s counsel $150 attorney fees.
There are a number of claims of error, but the only one which we find necessary to consider is the contention that it was error to refuse to grant a change of venue. The suit was commenced January 11, 1917; four days later defendant filed a motion to vacate the order for the payment of attorney’s fees, suit money, and money for the support and maintenance of plaintiff and her daughter, setting up as one of the grounds that he was never at any time married to the plaintiff, that she is not his wife, and that he is not the father of her child. While this motion was pending the defendant filed an application for a change of venue on the ground of the relationship existing between the judge of the district court and plaintiff’s attorney, who is a son of the ;judge. Motions were also filed asking the court to reserve the questions of alimony, suit money, and attorney’s fees until the case could be finally heard before a qualified judge. The motions were overruled, and the defendant filed his verified answer to the petition, setting up the defense already referred to. A second motion for a change of venue was filed on March 13, alleging as one of the grounds that the attorney for the plaintiff was the sop of the judge of the district court, and that by reason of their relationship the judge was disqualified under the statute to try the case.
Section’ 57 of the code of civil procedure reads, in part, as follows:
“In all cases in any of the district courts of this state in which it shall be made to appear that a fair and impartial trial cannot be had in the county where the suit is pending, or when the judge is interested or has been of counsel in the case or subject-matter thereof, or is related to either of the parties, or otherwise disqualified to sit, the court may, upon application of either party, change the place of trial to some county where the objection does not exist.”
Provision is made in the same section for calling in some other district judge to attend .and sit as judge of the court where the case is pending.
It is defendant’s contention that the son*of the district judge is a “party,” within the meaning of the. statute. There are two lines of authorities respecting the construction which should be given to the term “parties” as used in constitutional or statutory provisions intended to disqualify a judge from sitting in a cause in which he is related to one of the litigants. In some jurisdictions the word is given a narrow and technical meaning, and the judge will not be held disqualified unless the person to- whom he is related is in strictness one of the parties to the cause. In other jurisdictions the rule adopted is, that if the judge is related tó an attorney in the cause whose fee is contingent upon success, or the amount of the fee is to be fixed and determined by the court, he is a party within the meaning of the provision requiring a change of venue where the judge is related to one of the parties. In our opinion the spirit and purpose.of the statutory provision is best subserved by the latter construction. In 15 R. C. L. 534 itfis said:
The great weight of authority is that a judge whose relation within the specified degree is attorney in an action with fees contingent on recovery is disqualified to sit therein under a constitutional provision that no judge shall preside in the trial of a ease where either of the parties shall be connected with him by consanguinity within a certain degree, although the authorities are not all agreed oh this point.”
In 23 Cyc. 585 it is said:
“But where the attorney’s compensation depends on the contingency of recovery, he is, in some jurisdictions, regarded as an interested party, so that relationship to him will disqualify, although the client may have agreed to pay fees commensurate with the services rendered, independently of success.”
A leading case is Roberts v. Roberts, 115 Ga. 259. There the judge was related to the counsel of an applicant for alimony and counsel fees in- a divorce proceeding, and it was held that he was disqualified from presiding in the case and passing upon the application, although such counsel may have had a contract with the applicant binding her to pay' them for their services, independently of the success of the application for alimony and counsel fees. In the opinion it was said:
“It is the pecuniary interest of the attorney in the result of the case which disqualifies the judge. If the applicant did not ask any allowance of counsel fees, of course the fact that her counsel was related to the judge, no matter how closely, would not have the effect to disqualify the judge from presiding. The moment the applicant asks for counsel fees her counsel becomes pecuniarily interested in the result of the suit, and, so far as these fees are concerned, the counsel are as much parties to the case as if they were parties to the record. ... In an application for alimony and counsel fees the counsel for the applicant are thus not only pecuniarily interested in the result of the suit, but if counsel fees are allowed a judgment' is obtained which is absolutely under their control, independently of anything which might be done by their client in reference to the main case, and which can be enforced for their benefit, certainly in the name of their client, even if the cases above referred to are not authority for the proposition that it can be enforced in their own names. In such a case we do not think that a judge who is related within the fourth degree of consanguinity or affinity to any counsel for the applicant should preside. The reason and spirit of the code section above referred to, as well as a proper construction of the word “party” therein contained, would disqualify a judge so situated from presiding in the case. In such a case the judge determines not only the question as to whether under the circumstances of the case counsel fees should be allowed, but he also determines the amount, the allowance of fees and the amount thereof being left under our law to his discretion.” (pp. 263, 264.) 1
The question is also the subject of a note in 15 A. & E. Ann. Cas. 533, where it is stated that the courts adopting the con trary view are those inclined to construe the term “parties” in its limited or strict sense.
A recent case involving the very question now under consideration is Railroad Co. v. Kirk, 102 Miss. 41, reported with notes in Ann. Cas. 1914 C, 968, 970. In a well-considered opinion reviewing the leading cases, the supreme court of Mississippi adopted the broad and liberal rule of construction and held a judge disqualified to sit in a divorce and alimony case because he was related to an attorney for one of the parties, expressly declaring in the opinion that if the numerical weight of authority rested with the narrow view, or if there were no precedent to follow, the court would unhesitatingly adopt the broad and liberal construction of the statute, because of the general policy of the law. In the opinion it was said:
“We are convinced that the broad and liberal rule of construction is the soundest and wisest rule, and, adopting this rule as our guide, we conclude that the circuit judge was disqualified to preside at the trial of this case. If the numerical weight of authority rested with the narrow view, we would unhesitatingly follow the lead of those courts adopting the broad and liberal construction of statutes and constitutions similar in language to our own constitution. In the absence of precedent, we would feel constrained to create a precedent in harmony with our views. Every litigant is entitled to nothing less than the cold neutrality of an impartial judge, who must possess the disinterestedness of a total stranger to the interests of the parties involved in the litigation, whether that interest is revealed by an inspection of the record or developed by evidence aliunde the record. The real parties in interest furnish the reason for the judge to recusé himself when it becomes known that they are related to the judge, although they may not be parties eo nomine.” (p. 54.)
An examination of the cases cited on both sides of this question convinces us that the weight of authority, giving due consideration to the more recent expressions of the courts and law writers, favors the adoption of a broad and liberal rather than a narrow construction of the term “parties” as it is used in statutory or constitutional provisions similar to the provision in our code. In some of the cases which adopt the other view, the fact that at the common law relationship of the judge to one of the litigants did not disqualify him from sitting in the cause is given more consideration and force than it is entitled to in our opinion. .In Roberts v. Roberts, supra, the supreme court of Georgia laid stress upon the statutory dis qualification of a juror who is related tó one of the parties or has an interest in the result of the suit, and the court in the opinion said:
“The reasons at the foundation of the rule which forbid a juror from sitting in a case where he is related to some one pecuniarily interested in the result of the suit would also apply in the case of a judge who was in a similar situation. If one not a pkrty to the record, but directly and pecuniarily interested in the result of the cause, would be such a party thereto as to disqualify one of his kinsmen from being a juror, he would also be such a party as to disqualify his kinsman from presiding as judge. Especially would the judge be disqualified in a proceeding where he presides, not only with the powers of a judge to determine the questions of law arising in the case, but with the powers of a jury to absolutely settle all disputed questions of fact, as is the case in an application for the allowance of temporary alimony and counsel fees, when one or more counsel for the applicant in whose behalf the fees are asked are related to the judge within the degree referred to in the statute declaring when a judge should be disqualified.” (p. 263.)
Among the grounds under our code for the peremptory-challenge of a juror are, “that he . . . has an interest in the action . . . or is of kin to either party.” (Civ. Code, § 282.)
Our conclusion is that under the facts in this case the judge of the district court was disqualified, and it was error to refuse to change the venue.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of making an assault on a boy. On the assumption that the boy’s father was permitting his cattle to eat defendant’s feed, defendant went out one morning armed with a shotgun and a whip and compelled the boy, a lad of eleven years, to assist him in driving the cattle to his (defendant’s) corral.
Defendant was charged, not only with an assault upon the boy, but also with having made a “gun play” the same morning upon the boy’s father and sister. The jury ignored the charge based upon the assault on the father, and likewise the charge of assault upon the sister. As to those charges, no verdict was rendered and neither party objected to this omission.
Defendant contends that the evidence to support his conviction of assault upon the boy was insufficient. 'The boy testified plainly, simply, and positively, that defendant pointed the shotgun at him and ordered him to help turn the cows towards defendant’s corral. That alone would be sufficient if the jury saw fit to believe it, and if their verdict had the approval of the trial judge. (3 Cyc. 1022, 1025; 40 id. 871.) Here, however, there were some corroborative circumstances. The father testified that he heard his son crying. The fact that the defendant carried a gun and a whip was admitted; and various facts and circumstances tended to prove that defendant compelled the boy to assist him in driving the father’s cows to the defendant’s corral. Such an invasion of the boy’s freedom was itself an assault. (2 Cooley’s Blackstone, 4th ed., 943.) The case is too clear for discussion; the record discloses no error; and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by P. B. Achen to recover for injuries sustained by him while riding in the caboose of a stock train of the defendant upon a journey from Elkhart, Kan., to Kansas City, Mo.
It -is alleged by plaintiff that through the negligent handling of the train, he was thrown from a seat in such a way as to severely injure him. It appears that he was a dealer in cattle and was traveling upon the train on which the cattle were shipped, as a caretaker. The shipment was made under an ordinary livestock contract, which permitted him to accompany and care for the stock without other charge than the cost of transportation under the contract. Among other things, the contract provided that “no suit or action against the company for the recovery of any damages accruing or arising out of said shipment or of any contract pertaining to the same . . '. shall be sustained in any court of law or equity unless such suit shall be commenced within six months next after the loss or damage shall have occurred,” etc.
The damage occurred on November 3, 1914, while the action was not brought until March 24, 1916. Among the defenses pleaded by the defendant was a stipulated release from liability for injury or damage while riding upon what is termed free transportation. Another defense was the failure of the plaintiff to bring his action within six months after the injury and loss. In his reply plaintiff alleged as an excuse for the delay in bringing the action that negotiations had been conducted between him and the defendant which had not been terminated at the end of the six-months period, and further that the defendant had obtained possession of the shipping contract and had refused to surrender it, and that thereby the defendant had waived the provision as to the time within which a suit must be brought. The court sustained a* motion of defendant asking for judgment on the pleadings.
Complaint is made by the'plaintiff of a preliminary ruling refusing to strike out the defense based on the stipulation releasing the defendant from liability for any personal injury that he might sustain. He contends and cites authorities to show that on the journey he should be regarded as a passenger for hire, and that a provision releasing the carrier from liability for its negligence is invalid. The contentions of the plaintiff in this respect may all be granted, and still it would not overthrow the judgment that was rendered.. The other defense, that the action was not brought within the stipulated time, appears to be conclusive, and the ruling refusing to strike the first defense mentioned, however erroneous, is no longer material.
Stipulations limiting the time within which actions may be brought to recover damages under a shipping contract are valid. (Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600.) It has been repeatedly held, not only that such a stipulation is reasonable and valid, but it has also been held to apply to actions for injuries of a shipper traveling upon the shipping contract in charge of cattle, as well as to actions for injuries to the cattle shipped. (Koster v. Railway Co., 95 Kan. 109, 147 Pac. 798; Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629). The fact that the provision of the contract regarding the stipulation that the defendant should be released from liability for its own negligence is void, does not destroy the entire contract nor invalidate the limitation within which the action for damages must be commenced. The contract is a divisible one, and its valid provisions are. enforceable. (Miller v. Railway Co., 97 Kan. 782, 156 Pac. 780.) Plaintiff set up a claim of waiver of limitation by the defendant,, but it has been decided that stipulations of this kind may not be waived by a carrier. (Easdale v. Railway Co., 100 Kan. 305, 164 Pac. 164;) The same rule has been applied as to a stipulation requiring written notice of a claim for damages under a shipping contract. (Avell v. Railway Co., 100 Kan. 238, 164 Pac. 269.) The supreme1 court of the United States has held in a number of decisions that it is hot permissible to allow a carrier to plead a limitation against one shipper and waive it as against others, or to give any preference through the waiver of defenses. One of these is Phillips v. Grand Trunk Ry., 236 U. S. 662.
The plaintiff has not overlooked the authorities cited, but he contends that a distinction should be made between a case brought for an injury to livestock and one for injury to the shipper. It may be conceded that plaintiff was not ,a free, but a paying, passenger, and that the rate charged for the shipment was intended to include the fare of the plaintiff. He was carried under the shipping contract, and his presence on the train as a caretaker, as well as his fare, were important parts of the contract. Having availed himself of the benefits of the contract to ride on the train, he cannot well avoid compliance with valid conditions in it requiring the bringing of actions for injuries within a prescribed and reasonable time. No room is found for the distinction which plaintiff would make, but on the contrary it has been determined, as we have seen, that the limitation applies alike to all actions brought in pursuance of the contract. (Barber v. Railway Co., 86 Kan. 277, 120 Pac. 359; Koster v. Railway Co., supra; Enright v. Railway Co., supra).
The judgment is affirmed. | [
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The opinion of the court wa's delivered by
Burch, J.:
The plaintiff as widow sued for damages for the death of her husband, occasioned by wrongful act of the defendant. The defendant pleaded a settlement with hep, by the terms of which she agreed not to sue if the defendant paid her husband’s debts, which the defendant did, in the sum of about $5,000. A demurrer was sustained to this defense. On appeal the defendant devoted a single paragraph of its brief to the ruling, the substance of which was that if the plaintiff could sue and recover in her own right, it would be hard to see why she would not have the right to settle, on fair and just terms. In the former opinion the subject .was disposed of with equal brevity:
“The plaintiff has a child entitled to share in the damages recovered. She prosecutes in a representative capacity, and the claim could not be compromised to the prejudice of the infant beneficiary.” (102 Kan. 811, 813.)
Because the opinion might not be sufficiently definite for the guidance of the district court, and might be open to misinterpretation in other cases, a rehearing was granted, and the cause has been reargued. -
The action was prosecuted under the factory act (Gen. Stat. 1915, § 5890), which, as indicated in the former opinion, takes its place among the provisions of the code of civil procedure relating to death by wrongful act. The nature and object of the several statutes are well understood. The death causes loss to the widow, or widow and children, or next of'kin, and they are given the right to .reparation. The loss is theirs, and not the loss of the deceased or of his estate. The damages recoverable form no part of the estate of the deceased, but inure to the exclusive benefit of those who have been damnified, and when recovered are shared by them according to the rule for the distribution of personal property of intestates. The remedy is by action. If a personal representative of the estate of the deceased has been appointed, he is plaintiff. If no' personal representative has been appointed, the widow may sue, and if there be no widow, then the next of kin. (Civ. Code, §§ 419, 420.) If the suit be brought by the personal representative, he does not act on behalf of the estate he is administering, or for its benefit; he acts solely on behalf of the distributees, and for their benefit. Likewise the widow, if there be a widow and children and no personal representative, acts on behalf of and for the benefit of the distributees. In either case the plaintiff is an agent arbitrarily designated by the statute to collect the damages and make distribution to the persons entitled to them. A widow suing for herself and children is a distributee, as well as plaintiff in the action.
The powers of the statutory agent are the powers of any other agent appointed to collect and distribute a fund. He may receive payment without suit, because satisfaction is all the law contemplates, and for the same reason he may receive payment pending suit. The limit of recovery is $10,000, and if the wrongdoer stand ready to pay that sum, there is no occasion for litigation. If the damages sustained be less than the maximum, and the wrongdoer stand ready to pay, there is no occasion for litigation. If suit be brought, the statutory agent has the same control over procedure as any other plaintiff.
The limitations on the power of the statutory agent are the same as the limitations on the power of any other agent to collect and distribute a fund. He must act in the utmost good faith. Notwithstanding the fact the damages are unliquidated, he may receive payment. .Differences of opinion may exist as to the proper amount of recovery. In that event he must act fairly and reasonably and justly. Having so acted, the distributees will be bound. He cannot accept anything but money in payment, because his authority is to collect money, and not substitutes or things which he may deem equivalents.
The statutory agent is not vested with general discretionary power; his power is limited to collection and distribution. Under the principle of agency that authority to collect does not include authority to compromise, and such authority must be specifically conferred, he cannot compromise in the sense of giving and taking, or in the sense of accepting something to close a dispute, uncertain as to result because of the law, or facts,, or other consideration; but by virtue of his control over litigation, the statutory agent and plaintiff may present to the court in which action has been brought a stipulation for judgment embodying a fair adjustment of the controversy, and if the court, after judicial examination, approve it and enter judgment accordingly, the parties will be bound, and the distributees will be bound.
The wrongdoer may safely deal with the statutory agent, acting reasonably and justly and in good faith and within the scope of his authority, but not otherwise. Having so dealt, and having satisfied his liability by payment, the wrongdoer is discharged, and will be protected in his discharge.
The sole purpose of the statute being reparation for injury sustained, any of the persons injured, having capacity to contract, may settle at any time with the wrongdoer for his own share of the damage money.
There are other interesting phases of this subject, and there is a growing number of cases relating to it, decided by the courts of other states. It' is not necessary to discuss them. In the last analysis the" question is one of statutory interpretation, and when once the nature and object of the statute, and the status of the person authorized to enforce the liability, have been defined, the solution of particular cases will not be difficult.
From what has been said it follows that the plaintiff could bind herself by settlement with the defendant on any consideration satisfactory to her; but she could not bind her child by the character of settlement which she did make.
The child was a posthumous child. It was deprived of paternal support and nurture just as much as if it had been born before its father’s death. If its mother had also died, it would have been next of kin to the father, and could have prosecuted the action as such.
The former opinion and judgment are adhered to; but the cause is remanded to the district court, with instruction to disregard the demurrer to ttie answer, so far as the interest of the widow as distributee is concerned. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiffs sued the defendant in separate actions for damages for personal injuries sustained on account of a defect in a highway. The actions were tried together, but separate verdicts were returned, on which judgments were entered for the defendant. The plaintiffs appeal.
A culvert was placed in the highway by the county, through the agency of men employed for the purpose. The evidence for the plaintiffs was that the work was. negligently done, and a depression resulted which rendered the highway unsafe for travel. The chairman of the board of county commissioners was admittedly without notice of the defect until after the plaintiffs were injured. The sple question now material was raised by a request for an instruction that if the culvert were constructed and the highway were defective as stated, the county would be liable for resulting injuries regardless of notice.
The argument in support of the instruction, which was refused, is that a distinction founded on good reason should be drawn between defects in the highway created through the agency of the county, as in building a bridge, putting in a culvert, or repairing a road, and defects arising without active participation of the county, as by use, accident, action of the elements, and.the like. The conclusion is that with respect to defects of thé first class the county should rest under the same liability as a city for negligent street work. The difficulty with this view is, that whatever ground may have existed for making the distinction, the legislature did not make it in the statute, which reads as follows:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge, culvert, or highway, may -recover such damage from the county or township wherein such defective bridge, culvert or highway is located, as hereinafter provided; that- is to say, such recovery may be from the county when such damage was caused by a defective bridge constructed wholly or partially by such county, and when the chairman of the board of county commissioners of such county shall have had 'notice of such defects for at least five days prior to the time when such damage was sustained; and in othei; cases such recovery may be from the township, where the trustee of such township shall have had like notice of such defect.” (Gen. Stat. 1915, § 722.)
Notice to the individual specified, for the specified length of time, is a condition precedent to liability, and to hold otherwise would be,- not; to interpret, but to emasculate the statute. In this instance the knowledge and participation of the chairman of the- board was limited to contracting for the improvement. He had no notice in fact of the defect, and there must be notice to him or the county is not liable. Assuming that the workmen who installed the culvert should be held to notice of the defective condition of the highway arising from their negligence, they are not the persons designated in the statute; and the only means by which the statutory condition to liability might possibly be fulfilled would be to bind the chairman by imputed or implied or constructive notice. Under the uniform decisions of this court for so long a time that presumably the legislature has accepted them as correctly reflecting its intention, this cannot be done.
It is true that in the case of Reading Township v. Telfer, 57 Kan. 798, 804, 48 Pac. 134, the court, speaking by Chief Jus-/ tice Doster, said that the statute remedied a defect in the common-law by bringing within the operation of the law of negligence a class of cases which had not theretofore been actionable, and declared as to counties and townships what had always been the law with respect to cities. The court, however, was discussing the subject of the burden of proof of contributory negligence, and not notice, it appearing in the case that the township trustee had actual knowledge of the defect in the road and contemplated repairing it.
The opinion in the Heading Township case was filed on March 6, 1897. On April 10 of the same year the case of Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554, was decided. In the Woodson County case the subject of notice was material, and the court said, Chief Justice Doster writing the opinion:
“The statute charges the county with liability only where the chairman of the board has notice of the defect in question. This statute ex- eludes the idea of imputable or constructive) notice. The case is unlike those cited by counsel for the plaintiff in error, in which a municipality is liable upon notice to its governing authorities in their corporate capacity.” (p. 3.)
In the case of Vickers, v. Cloud County, 59 Kan. 86, 89, 52 Pac. 73, the writer of the opinion spoke of the statutory withdrawal of immunity of counties from liability, and said they were placed on the same plane with private corporations and individuals, but in that case the subject of notice was not involved. An objection to the introduction of evidence under the petition was sustained. The petition alleged knowledge of the defects complained of, and the question was whether or not the county was liable to one who was injured while under the defective bridge and not traveling upon it.
In the case of Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010, agitation of the subjects of the nature of the liability and the character of notice was put at rest by the following definítive declaration:
“Cases of constructive notice to the governing authorities of cities of defects in streets and sidewalks shed no light on the question. Municipal corporations are under a common-law obligation to respond in damages for injuries occasioned by such defects, and they are therefore chargeable with what the common law esteems as notice. Quasi corporations, such as townships, are liable only as made so by statute, and therefore the statutory kind of notice must be given.” (p. 318.)
The petitions of the plaintiffs would have been fatally defective without proper allegations of statutory notice. (Higman v. Quindaro Township, 91 Kan. 673, 139 Pac. 403.) What "the plaintiffs were required to allege they were required to prove, and the requested instruction would have relieved them from the consequences of failing to prove an indispensable element of their causes of action.
The judgments of the district court are affirmed.
(Piled December 7, 1918.) | [
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The opinion of the court was delivered by
MASON, J.:
Elizabeth A. Bean-Hogan was injured by the overturning of an automobile in which she was riding as a paying passenger. She sued Kloehr Brothers, the owners and operators of the car, and received a judgment for $2,000, from which the defendants appeal.
The principal contention upon which a reversal is asked is that the evidence did not warrant a finding that the accident was the result of negligence on the part of the defendants. There was evidence tending to establish these facts:
The defendants were operating a line of automobiles carrying passengers in the city of Coffeyville. The plaintiff, with others, entered one of the cars with the purpose of being taken to her home. While the car was running at the rate of twenty- five to thirty miles an hour two dogs ran in front of it, one chasing the other, the distance between them being from fifteen to twenty feet. The driver turned slightly so as to avoid hitting the first animal, but the machine ran into the second one, causing the overturning referred to.
The defendants argue that all the evidence was consistent with the hypothesis that the running into the dog was an accident that could not have been avoided by any diligence on the part of the driver. We think, however, that while there was no explicit testimony to that effect, there was room for the jury to infer that if the car had not been going so fast it would not have hit the dog, or that even if it had done so, the car would not have been overturned. The episode took place on a city street, and the maximum .speed allowed by law was then twelve miles an hour (Gen. Stát. 1915, § 506), as it is now. (Laws 1917, ch. 74, § 5.) There was perhaps also room for an inference that more careful or skillful driving might have avoided the collision. The plaintiff asserts that, inasmuch as the defendants were admittedly common carriers, negligence on their part was inferrable from the fact that the car was overturned. The authorities seem to bear out this application of the rule invoked (10 C. J. 1029; Notes, 5 N. C. C. A. 33, and 13 id. 255), but it is not necessary to base the decision on this phase of the matter.
The jury itemized the verdict, allowing $500 for loss of time and $1,500 for pain and suffering. The defendants urge that the second item was excessive and extravagant. The plaintiff’s version of the character and extent of her injuries was in part directly contradicted by the physician who attended her, but it was the province of the jury and the trial court to resolve the conflict in the evidence. We cannot say that the allowance was so large as necessarily to indicate passion or prejudice.
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The opinion of the court 'was delivered by
Burch, J.:
The defendant was convicted of statutory rape, and appeals.
The evidence, which will not be recited, was sufficient to establish all the necessary elements of the crime. Testimony of other acts was properly allowed to stand, as showing the relations existing between the parties and their disposition toward each other. Other testimony complained of was properly admitted.
There was both direct and circumstantial evidence tending to establish guilt. While the instruction relating to conviction on circumstantial evidence alone might properly have been omitted, it did not prejudice the defendant to give it. When all the instructions are read together, as they must be, none of them is open to the charge of indefiniteness or incompleteness. Failure of the complaining witness to make prompt outcry or complaint merely tends to show consent, or lack of the use of outraging force, and is not of sufficient importance to be made the subject of a special instruction in a case of statutory rape. An instruction on the subject of attempt was waived by failure to request it, was not pertinent to the evidence, and became immaterial when the jury found the defendant guilty of the completed offense on satisfying evidence.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff was a passenger on an electric interurban car of the defendant. In attempting to alight from the car at Coffeyville her foot caught in some manner, and she fell from the platform and .sustained serious injuries. She brought suit and charged the defendant with negligence-in permitting the floor of the vestibule of the car to be in a. defective condition, and alleged that the boards in the floor were old, rotten, worn, and decayed to such an extent that a. large opening, the exact dimensions of which she was unable to state, was in the floor, which condition had existed for a long time, making the place unsafe and insecure for passengers attempting to alight from the car. She alleged that while in the act of stepping from the vestibule with her left foot the shoe-on her right foot caught and fastened itself in the floor of the vestibule, causing her to be thrown forward and downward upon the pavement. The answer, besides a general denial, alleged that whatever injuries the plaintiff sustained were-caused, not from any negligence of the defendant, but resulted through her own negligence and want of care in attempting-to alight from the car, and the further defense that her ipjuries were the result of an unavoidable accident for which the defendant was. not liable. The jury returned a verdict in plaintiff’s favor in the sum' of $3,500. The court overruled a. motion for a new trial, and the defendant appeals.
There is a contention that the plaintiff was allowed to recover upon a ground of negligence not alleged in her petition, but we think this complaint is somewhat technical. While there was no positive proof that the boards in the platform, were rotten, or decayed, there was evidence that there was an opening or crack in the floor in which the heel of the plaintiff’s shoe, caught, with the result that she was thrown from the car and injured, and some evidence that the crack in the-floor was worn. It is true there was a conflict in the testimony in regard to the condition of the floor, but there was no- error in overruling the demurrer to the evidence. The testimony of the defendant’s witnesses showed that the floor of the vestibule was constructed with a trapdoor which covers the steps when the car is in motion, but is raised up to permit passengers to alight; and that the edge of the flooring is beveled off so as to permit the door to be lifted, and that the crack was necessary to make the door work, and that it had always been there. Defendant’s witnesses also testified that no part of the flooring was split off or missing. On the other hand, the testimony introduced by the plaintiff’s witnesses tended to show that there were slivers in the crack, that the opening was wide enough at one place to catch the heel of plaintiff’s shoe; and that this condition caused her to fall.
The defendant requested an instruction as follows:
“Negligence is not to be presumed in this case; it is a fact to be proved by the plaintiff as she has alleged it.”
The first part of the instruction would have been proper, but there was no error in- refusing to give the instruction as requested, because the second clause would have held the plaintiff to the literal proof of every act of negligence alleged in the petition. It was not necessary that she establish the fact that the crack in the boards was occasioned by their being allowed to become old or rotten. There is a complaint that in the instructions given the court assumed some of the facts as alleged in the petition, but we think the jury were not misled by the language used. There is some room for complaint of the trial court’s instructions on the ground that they state too strongly the duties and obligations imposed upon a carrier of passengers, and emphasize that feature more than was necessary. Some of the instructions were admirably drawn, and state the rule of law correctly. In other instructions upon this branch of the case we think the court committed reversible error. In instruction No. 7 the jury were charged that it is the duty of the carrier to provide for the safe entry and exit of its patrons to and from its cars. The instruction is open to the objection that it makes the carrier the insurer of the safety of the passenger, and this is not the law. While carriers are the insurers of freight, they are not insurers of the safety of passengers. The court in instruction No. 6 properly charged that it is the duty of” the carrier to use the highest degree of care consistent with the practical operation of the road to conserve the safety and security of its passengers, and that such duty continues until the passenger reáches his destination, and repeated the same rule in instruction No. 8. The well-recognized rule as to the duty owed to passengers is stated in the recent case of Lynch v. Railway Co., 92 Kan. 735, 142 Pac. 938, as follows:
“A carrier is bound to exercise the highest degree of care that is reasonably practical in safely carrying passengers and - setting them down safely at their destinations, (syl. ¶ 1.)
The most serious complaint of the instructions is, that the court applied the doctrine of res ipsa loquitur. In the eighth instruction it was charged that the mere happening of an accident resulting in injury to a passenger, due to defect in equipment of a,car, is prima facie evidence' of negligence. Again, in instruction No. 9, the jury were charged that the happening of an accident resulting, in injury to a passenger is prima facie evidence of negligence on the part of the carrier,
“and it will be incumbent upon the company or carrier to produce evidence which will excuse the prima facie failure to do its duty. Or, in other words, it has the burden of proof, in order to rebut the presumption of negligence under the circumstances, that the accident could not have been avoided by the exercise of the highest practicable care and diligence.”
Again the doctrine was applied even more strongly in instruction No. 15, which reads:
“You are further instructed that, it being admitted that plaintiff was a passenger on defendant’s car, and, when it is made to appear that while attempting to alight therefrom in the manner and form alleged by her, she suffered injuries, she has then shown a state of things upon which a presumption of negligence arises against the defendant company which will stand with the forcp and efficiency of actual proof of the fact, and is available for her benefit until negatived and overthrown, and such presumption of negligence on the part of the defendant can only be overthrown by proof that the casualty resulted from inevitable or unavoidable accident, against which no human skill, prudence or foresight .as usually and practicably applied to careful railroad management could provide.”
These instructions should not have been given. The doctrine of res ipsa loquitur in cases of injuries to a passenger is properly applied in case of a derailment, or the collision with another train, the breaking of a rail, or by some defect in the equipment of the train which the passenger is presumed to know nothing about, for the reason that he has no way of anticipating or ascertaining, either before or after the accident, what occasioned it. To hold that it applies to a case where the passenger is alighting from a train and is injured in the manner charged in the plaintiff’s petition would be to hold that the passenger in alighting from the train is not bound to exercise some degree of care. The carrier is bound to provide reasonably safe conditions and appliances to enable passengers to board and alight from its cars. (4 R. C. L. § 653.) Some of the exceptions to the application of the doctrine of res ipsa loquitur are those stated in 3 Thompson’s Commentaries on Negligence, § 2763, as follows:
“It does not apply where the defect, deficiency, or peculiarity in the carrier’s means of transportation or accommodation, which was the occasion of the accident, was visible to, seen by, or known to the passenger, as well as to the carrier, and where the accident took place either before the actual commencement of the transit or after its termination, and while the passenger was in the affirmative act of boarding the carrier’s vehicle, or alighting therefrom, or coming upon or passing from the grounds of the carrier, — -in all of which cases the carrier is not the exclusive bailee of the passenger, but the passenger is required, under the principles of the law, to take reasonable care for his own safety.”
The principal cases cited by the plaintiff do not sustain her contention. Thus, in the case of S. K. Rly. Co. v. Walsh, 45 Kan. 653, 26 Pac. 45, where it was held that proof of the accident and extent of passenger’s injury will make a prima facie case in his favor, the passenger, was injured by the derailment pf the train on which he was riding. It was held in that case that the passenger had made a prima facie case by showing the occurrence of the accident and the extent of his injuries. In the opinion it was said:
“It is well settled by the authorities that in such cases a prima facie presumption of negligence on the part of the railroad company arises, which throws the orvws upon the company of disproving a want of care on its part.” (p. 659.)
Another case relied upon by the plaintiff is Schonleben v. Interborough Rapid Transit Co., 160 App. Div. 790, 145 N. Y. Supp. 682, where the facts were very similar to those in the present case. The floor of the car was covered with wooden slats about one inch apart, fastened by metal screws; one of these projected above the slats, and the plaintiff’s shoe was caught, and he was thrown down and injured. The plaintiff had no knowledge of the existence of the screw until he was thrown down, and was not guilty of any contributory negligence. It was held that the mere happening of the accident, under the circumstances described, imposed upon the defendant the duty of an explanation. The instructions complained of in the present case state the law to be that the mere happening of the accident (without reference to any knowledge the plaintiff might have had of the condition of the floor, or her' duty to exercise reasonable care in alighting from the car) makes the rule of res ipsa loquitur apply the same as if the accident had been caused by a derailment or a collision, or something the plaintiff could not know about. Another case cited by the plaintiff is Gleeson v. Virginia Midland R’d Co., 140 U. S. 435, where it was said that—
“It has been settled law in this court that the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care), the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight.” (p. 443.)
• The instructions we have quoted from stated the rule too broadly, and left out any consideration of plaintiff’s duty to exercise due care. The doctrine of res ipsa loquitur has no application to the present case, and because of the errors in the instructions the judgment will be reversed and the cause remanded for another trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The question upon which the parties herein divide is whether the proceedings taken by the authorities of Utica, a city of the third class, towards the condemnation of land lying outside of the city for waterworks, are valid.
The city proceeded under the provisions of the third-class-city act, which provides that private property may be taken for public use for railroads, market houses and market places or “for any other necessary purpose.” It prescribes the procedure for condemnation, authorizing the appointment of five disinterested householders of the city to assess the compensation, and providing that an appeal from their decision may be taken to the district court. (Gen. Stat. 1915, § 1942.) The steps that were taken by the city conform to the requirements of this act, but it is contended that the áppropriation of property for waterworks outside of the city was not within the contemplation or authority of the statute. It conceded that authority for the compulsory appropriation of private property for a public use must either be expressly granted or reasonably implied from the powers expressly granted. It is conceded and has been decided that the power to purchase and hold property for this purpose does not carry with it the power to obtain it by condemnation. (Enterprise v. Smith, 62 Kan. 815, 62 Pac. 324.) In dealing with the question of supplying water to the inhabitants, the legislature has authorized a city of the third class to enact such ordinances as are necessary for the health of the people therein. (Gen. Stat. 1915, § 1908.) In 1871 it was provided that the cities of that class in making regulations to secure the general health of the people might purchase and hold necessary land for waterworks within or without the city. (Gen. Stat. 1915, § 1937.) In the same session of the legislature the provisions already referred to were enacted, under which the city was proceeding to obtain land for waterworks. It provides in express terms for the appropriation of private property for public use without any restriction as to the place where it may be obtained. No one questions that the power to condemn for a public use embraces the supplying of water, which is indispensable to the health, comfort, and convenience of the people of the city. Granting the contention of the plaintiff, which is supported by the authorities he cites (Coldwater v. Tucker, 36 Mich. 474; Farwell v. City of Seattle, 43 Wash. 141), that the authority to condemn must be derived from some statute which expressly or impliedly permits the condemnation, we have here a statute which in broad terms gives the power to condemn property regardless of municipal limits. While the rule is that statutes conferring the power of eminent domain are to be construed strictly, the construction should never be so rigid as to defeat the purpose sought to be accomplished by the legislature. The principal power must, of course, be expressly given, and there go with it all the necessary incidents of that power. As an incident of the power conferred in this ease, the city authorities may go wherever it is practicable and necessary to obtain the supply of water for the people of the city. It is an acknowledged fact that water is obtained in most cities from places outside of the municipal limits, and the legislature, no doubt, had this fact in mind when the power of condemnation was conferred. It is equally well known that purer and better water can be obtained some distance away from the territory occupied by the people of the city. The legislature must therefore have known that in many of the cities it would be impossible to secure a supply of water within the municipal limits and, having given the general power without restriction as to location, the court cannot insert a limitation into the statute by judicial construction. As showing that the legislature understood that waterworks have been and would be established beyond the city limits, we have the statutory provision that cities of this class may build pipe, power, light and telephone lines for its own use between the city limits and the location of any waterworks or other public utility owned and controlled by the city, and to that end may exercise the right of eminent domain on any lands within five miles of the city. (Gen. Stat. 1915, §§ 865, 866.) It must be held, we think, that the grant of power, made as it has been without limitation as to the corporate boundaries, should be interpreted as applying to the condemnation of land outside, as well as inside, the city, that may be necessary to effect the legislative purpose. It has been held by the supreme court of West Virginia that the general power conferred upon a city to acquire land by condemnation for waterworks, in the absence of a limitation, carried with it the necessary implication of authority to take land inside or outside of the city. (White v. Romney, 69 W. Va. 606.)
Attention is called to another act passed in 1872, and amended in 1883, by which land- may be obtained for waterworks in cities of .any class, and by a different method. The statute appears to have been omitted from recent compilations of the laws, but it does not appear to have been repealed, and no reason is seen why the powers conferred in it may not be applied. (Laws 1872, ch. 208, as amended by Laws 1883, ch. 38, Gen. Stat. 1901, §§ 7904-7909, Gen. Stat. 1915, note, p. 177.) This act provides that cities of the first, second and third class shall have power to condemn rivers not navigable and to divert the waters therefrom, and also to condemn and appropriate land for waterworks. The proceeding under this act is to be initiated by petition to the judge of the district court, who is authorized to appoint three commissioners to make the condemnation and assess the damages. It is provided that the commissioners so chosen shall follow, with slight exceptions, the procedure for the condemnation of land for right of way of railroads. It expressly provides that land outside of the city may be taken for waterworks and, while it was passed after the enactment of the eminent-domain provision of the third-class-city act of 1871, it does not follow that that act is repealed, or that condemnation may not be made under it. The act of 1872 undertakes to extend the power of condemnation beyond that conferred in the act of 1871, in that it gives the additional right to condemn rivers and to divert water from¡ the river in order to obtain a supply of water. But regardless of this differénce in the acts, it was competent for the legislature to provide, as has been done in several instances, two systems for the accomplishment of the same purpose. There may be good reasons why the condemnation should be made by commissioners appointed by the city council in the manner prescribed in the act of 1871 in one case, and that in another a better purpose would be accomplished through an appropriation made under the direction of the district judge and through the procedure prescribed by the act of 1872. There is a marked difference in the two methods of procedure and, there being nothing to indicate that one act is a substitute for the other, both are to be deemed in force, and a condemnation by either of the prescribed methods will be sufficient. Two systems for the appropriation of lands for the use of railroads are in existence. In the General Statutes of 1868 a definite method was provided for the condemnation of land for railroads. Under it the county commissioners of a county, upon an application being made, were empowered to lay off a route for a railroad and to assess the damages for the property appropriated for the right of way, in a prescribed manner. In 1870 an act was passed authorizing a railroad company, or a landowner, to apply to the judge of the district court for the appointment of three commissioners, who are to make the assessment of damages in the condemnation of land for right of way, instead of the county commissioners. It has been recognized that both systems are in force, and that the legislature did not intend that the provision for the second should repeal or destroy the first. So here, the two systems provided for cities of the third class for condemning land for waterworks are in existence, and the power of appropriation may be exercised under either of them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from an order of the trial court denying a motion to vacate and open up a judgment. Judgment was announced on November 14, 1913, in favor of the defendants who appeared, but in .favor of plaintiffs as against those defendants who defaulted, and on appeal the judgment was slightly modified by this court and affirmed. (McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535.) The opinion on that appeal sets forth the facts. Ladd Almon Knapp, one of the defendants against whom judgment was rendered, was, on June 2, 1913, sentenced to the penitentiary of South Dakota for a criminal offense, and on June 3, 1913, before he was im prisoned in the penitentiary, he executed and delivered a deed conveying all his right, title, and interest in the land involved in this action to Seward, Foley, and Heffron, the attorneys who had defended him in the criminal prosecution referred to, as compensation for their services. The deed contained a covenant that the grantor was seized of an interest in the land, had a right to convey the same, and that his interest was free from incumbrances; but it contained no covenant of warranty. On May 11,1914, these attorneys, as the successors to Knapp’s interest, filed this motion asking that the judgment be vacated on three grounds: (1) That it was unwarranted under the pleadings, (2) that when the action was pending and the judgment rendered Knapp was under disability by reason of his confinement, and (3) that publication service only was made, and neither Knapp nor the successors to his interest had actual knowledge of the pendency of the action in time to appear and make a defense.
From the evidence produced at the hearing of the motion, it appears that Knapp had correspondence concerning the land and the Dodson estate with Palmer, the executor, beginning in the spring of 1912. In a letter to Knapp on June 1, Palmer said: “There is some litigation concerning the farm as you probdbly know, which has not yet been decided, and we do not know what the outcome of it will be.” On June 8, in another letter, he said: “These attorneys (referring to plaintiffs), however, procured a quitclaim deed from Knapp, and have brought a suit for one half the farm, which suit is now in court. If they win their suit of course there will be just one half as much property for the heirs named in the will at the final decision.” Besides the information so obtained, Knapp admitted that he had definite knowledge of the trial in November when the judgment was announced, and long prior to its final entry on February 25, 1914. The appellants who are seeking to have the judgment set aside were actually informed of the proceeding on November 1, and, although they were assignees of Knapp and as such were included in the publication service and had an opportunity to come in and resist the entry of the judgment, no action was taken by them. Knapp, as well as the appellants, might have appealed from the judgment after it was entered, but they allowed the appeal to proceed to final determination without asserting their claims or questioning the sufficiency and propriety of the judgment.
On this appeal from the refusal of the trial court to open up the judgment, they insist that the finding of the trial court in favor of the defendants appearing inured to the benefit of those defaulting, and that the judgment as to the latter was extrajudicial and void. This proposition was fully considered and determined in' the fipst appeal, when it was decided that it was competent for the court to give judgment in plaintiffs’ favor as against the defaulting defendants, although it developed later in a trial that plaintiffs’ claims were not sustained as against the defendants who did defend. The contention now. made was elaborately presented on a petition for a rehearing, and after a reexamination it was again rejected, and the question must now be regarded as finally and definitely settled.
We find nothing substantial in the contention that the judgment is void because it is outside of the pleadings. In their petition the plaintiffs asked for the recovery of a one-half interest, and no more than that was recovered. While the judgment is not as specific as it might have been, an examination of the pleadings and judgment leaves no doubt about the extent of the interest asked and recovered by the plaintiffs, nor of the validity of the judgment.
The remaining and principal question in this appeal is: Did Knapp and his assignees bring themselves within the provision of section 83 of the civil code authorizing the reopening of the j udgment ? To secure a reopening under the cited section, the mover must within three years of the rendition of the judgment give notice of his intention to make the application, file a full answer to the petition, pay the costs if required, and then he must show to the satisfaction of the court that during the pendency of the action he had no actual notice thereof in time to appear and make his defense. Appellants filed no answer when the application was made, and the hearing was allowed to proceed over objection without compliance with that requirement. The motion or application, however, set out a brief statement of the defense, and at the end of the hearing an answer was filed by permission of the court. If this is treated as a substantial compliance with the code, the question still remains whether, under the testimony offered, the judgment should have been reopened.
In regard to actual notice of the litigation it appears that Ladd A. Knapp, through whom the appellants claim, was committed to the penitentiary in June, 1913, and was under disability from that time until the judgment was entered. However, he was under no disability when the suit was begun and service by publication was made, nor for about two years afterwards. In July, 191Í, the action was begun, and he learned of the litigation, as we have seen, a year before his conviction and imprisonment. In May, 1912, he wrote asking for a copy óf his mother’s will, and he was advised that it had been probated, and also that litigation concerning the farm about which he was inquiring had been commenced. The copy -of the will was sent to him on June 8, 1912, and he was then told that a suit had been brought by plaintiffs to recover one-half of the farm, and that if they should win their suit only one-half would remain for him and the other heirs. In the same connection he was informed of the divorce of his mother, upon the validity of which the plaintiffs’ interest in the land depended, and that attorneys had been employed to defend and protect the interests of the heirs. In November, 1912, he wrote a letter inquiring if the decree of the court had been rendered. Thus, it will be seen that he knew that an action had been instituted, he had been told the names of the plaintiffs, something of the basis of their suit, and the extent of the recovery they sought. It is claimed that Knapp was not told the name of the court in which the action was brought, and supposed it was in the probate court. It has been held that it is not essential to a sufficient notice that a party should be fully informed of the court in which the action is commenced, where he is definitely informed that a suit has been begun and is pending against him. (Beckwith v. Douglas, 25 Kan. 229.) He should have known that the relief sought for the recovery of land could only be obtained in the district court. He had read the will and knew that a share of the farm had been devised to him, and that an action to recover one-half of the devised property was pending. On such information, ordinary prudence required him to inquire and take steps to protect his interest, and upon the evidence it cannot be said that the finding of the court of actual notice is without support. As the transfer was made it must be held that the appellants were bound by the notice he had, and that they have no better right than he had. Besides, it appears that they' slept on their rights several months after the deed was executed before the rendition of the judgment sought to be opened.
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The opinion of the court was delivered by
Johnston, C. J.:
Plaintiff appeals from the judgment of the trial court sustaining a demurrer to his petition.
The substance of the allegations of the petition was that the defendant, Huey R. Green, orally agreed to execute an oil and gas lease to the plaintiff of certain land upon the terms and conditions expressed in a printed form of lease, a copy of which was attached to and made a part of the petition; that the reason defendant did riot execute the written lease at that time was because he had not yet received his deed to the land, but he promised to do so after his deed was received; and that defendant received his .deed, but refused to execute the lease in accordance with his oral promise, although plaintiff offered the cash payment required under their contract. It was also alleged that plaintiff, relying upon the defendant’s oral promise, had leased other lands on three sides of defendant’s land, thus making defendant’s land especially valuable for oil and gas purposes. Alleging willingness to perform on his part, plaintiff asked that the defendant be required to execute the lease in accordance with the oral contract. The printed form of lease mentioned contained the following language:
“Party of the first part for and in consideration of the sum of One Hundred & Twenty Dollars in hand well and truly paid, . . . does grant, demise, lease and let unto the said second party, his heirs, executors, administrators, successors or assigns, for the sole and only purpose of mining and operating for .oil and gas, and of laying pipe lines, and of building tanks, power stations and structures thereon, to produce and take care of said products, all that certain tract of land,” etc.
Another paragraph read:
“It is agreed that this lease shall remain in force' for a term of five years from this date, and as-long thereafter as oil or gas, or either of them is produced from said land by the party of the second part, his heirs, administrators, executors, successors or assigns.”
Then followed several clauses providing that the lessor should have one-eighth of the oil obtained, also for the terms of payment for all gas taken from the premises, and also that a well should be drilled within one year, and, if not done, second party was to' pay $30 for each ninety-day period of delay.
Other provisions were:
“The party of the second part shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing. The party of the second part shall not be bound by any change in ownership of said land until duly notified of any such change, either by notice in writing duly signed by the parties to the instrument of conveyance, or by receipt of the original instrument of conveyance, or duly certified copy thereof. . . . The party of the second part, its heirs or assigns shall have the right at any time, on the payment of- Dollar to the part-of the first part-heirs or assigns to surrender this lease for cancellation, after which all payments and liabilities thereafter to accrue under and by virtue of its terms shall cease and determine,” etc.
It was contended by the defendants, and evidently held by the court, that the agreement sought to be enforced, not being in writing, was within the statute of frauds, and unenforceable. The plaintiff contends that the lease is a mere license to explore for oil and gas; that it did not assign or grant any interest in or out of lands; and that a writing was not essential to its validity. Reference is made to a number of cases in which it was held that certain oil and gas leases were not to be treated as ordinary leases of land and did not convey an interest or estate in land. Several forms of lease have already been examined by this court, and each was interpreted in.the light of its own provisions. It has been said that such leases are in a class by themselves, and are in the nature of a license coupled with an interest. (Dickey v. Brick Co., 69 Kan. 106, 76 Pac. 398.) In Rawlings v. Armel, 70 Kan. 778, 79 Pac. 683, an exploration lease was held not to convey an estate in land unless mineral was found and produced. It has been held, too, that a mechanic’s lien will not attach to an interest acquired in lands by a lessee of an ordinary oil and gas lease. (Oil Co. v. McEvoy, 75 Kan. 515, 89 Pac. 1048; Phillips v. Oil Co., 76 Kan. 783, 92 Pac. 1119.) On the other hand, it’has been ruled that the right transferred by such a lease constituted an alienation of a homestead, and that the consent of husband and wife was necessary to its validity. (Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; Thompson v. Millikin, 93 Kan. 72, 143 Pac. 430.) A lease granted, conveyed, and warranted to the lessee, his heirs and assigns, the right to drill for oil and gas, to construct pipe lines and buildings necessary for the production and transportation pf the product, and provided that a well should be drilled within two years or the lessee should pay $80 annually until it was done, that one-tenth of the oil produced should be paid to the lessor and certain payments made if gas was found, and that if no well was drilled within ten years the lessee was to reconvey the property to the lessor. It was held that under such an instrument the lessee acquired an interest in the stratum of oil and gas which thereafter became subject to taxation, incumbrance, or conveyance. This holding was based mainly on the language of the writing, which expressly conveyed and warranted the premises described, and a provision for reconveyance of the property if a well was not drilled within the prescribed time. (Gas Co. v. Oil Co., 83 Kan. 136, 109 Pac. 1002.) In other cases where it was claimed that the writing effected a severance of the mineral from the land and created an estate which was subject to taxation, it has been held that the terms of the lease did not operate as a transfer of the title to the minerals. (Finch v. Beyer, 94 Kan. 525, 146 Pac. 1141; Hover v. McNeill, 102 Kan. 492.)
Although the right granted herein may not have accomplished a severance of the mineral, nor arise to the dignity of what is termed an estate in land, it did give the lessee an ex-, elusive and assignable right to the use of a portion of the land for a period of at least»five years. With it went the right to use so much of the surface for laying pipe lines, erecting buildings, tanks, stations, and other structures as was necessary 4o accommodate the oil and gas taken from the wells which the lessee contracted to drill. Thus the lessee has, not only the right to drill for mineral, but he has the absolute right to possession of a part of the land on which to care for the mineral produced. This is a right which no one can take from him during- the period of the lease if the required conditions are performed. As will be observed, the provisions of the grant were extended, not only to the heirs and assigns of the lessee, but also to those of the lessor. While the lease may not'have given title to the mineral in the land, it did give something in connection with the land which was capable of being inherited. In a number of cited cases it has been designated as an incorporeal hereditament. It -is’a grant in the nature of an easement, and it is something which may be inherited, and which the law and good public policy require shall be committed to writing. The statute provides that a party cannot be charged upon an agreement for the sale of lands, tenements or hereditaments, or any interest in or concerning them, unless it is in writing duly signed by the party to be charged. (Gen. Stat. 1915, § 4889.) It has been held that a contract to execute an oil and gas lease giving the mere right to explore for oil and gas, and if either is found, to produce and sever, is within the statute of frauds. It was said:
“While the court has held that an oil and gas lease of the kind under consideration does not constitute a conveyance, will not support a mechanic’s lien, does not operate as a grant and severance of mineral in place, and .creates no estate proper in the land itself, it does create an incorporeal hereditament. A contract for the, sale of hereditaments, whether incorporeal or corporeal, is within {he sixth section of the statute of frauds.” (Robinson v. Smalley, 102 Kan. 842, 843, 171 Pac. 1155.)
The lease herein involved is at least an incorporeal hereditament, and, not being in writing, is unenforceable. (See, also, 10 Ann. Cas. 100.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on a promissory note. The plaintiff prevailed, and the defendant appeals.
In 1912 F. M. Seimers and L. C. Seimers, as principals, and the defendant, as surety, executed and delivered to the plaintiff their promissory note, for a consideration not now in dispute. The note was not paid at maturity, and in 1913 the plaintiff accepted a renewal note for the sum due, signed by the principals and purporting to be signed by the defendant. The old note was stamped paid and delivered to the principals. The renewál note was not paid at maturity, and the plaintiff brought two actions for the amount due, one against the principals and one against the defendant. Apparently the defendant was sued separately because he was a nonresident, and it was necessary to proceed against him by attachment. The de fendant appeared, and the actions were' consolidated and tried together. The defense in each case was that the signatures appearing on the note were not genuine. Judgment was rendered against the principals and in favor of the present defendant. The plaintiff then sued the defendant on the original note, with-the result stated;1
The main defense was that of res judicata. While the verdict in the former suit was a general verdict in favor of the defendant, the pleadings and the instructions, introduced in evidence in the present action, show that the sole issue determined was the genuineness of the signature to the renewal note. The present action is on a different note, which the defendant admitted he signed, and consequently the defense of res judicata was not sustained. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.)
Another defense was that the defendant was an “accommodation indorser,” that the note sued on had been marked paid and surrendered to the principal debtors, and that the new note of the principal debtors had been accepted, on which judgment had been rendered. The note disclosed that the defendant was a maker, and his liability to the plaintiff was that of maker, although his relation to his comakers was that of surety. (Bank v. Jeltz, 101 Kan. 537, 167 Pac. 1067.) Stamping the note paid and surrendering it did not discharge it, and no' agreement that the new note should be taken in payment of the old one was pleaded or proved. (Bank v. Cooper, 99 Kan. 731, 162 Pac. 1169.)
The new note when taken supposedly bore the defendant’s signature. The judgment which the defendant pleaded established the fact that his signature had been forged to the new note. Under these circumstances the fact that the new note was accepted by the plaintiff did not discharge the old one. This proposition was conceded by the party whose signature had been forged in the case of Bank v. Jeltz, supra, and is sustained by cases found in case notes, 13 L. R. A., n. s., 205, and 16 L. R. A., n. s., 343.
The fact that judgment against principal debtors was rendered on the renewal note does not concern the plaintiff. Both notes were for the same indebtedness, and the plaintiff is en- entitled to establish its claim against all persons obligated to pay.
The defendant argues that the plaintiff split his- cause of action. This is not true. The rule against splitting causes of action applies to separate actions against the same person to enforce fractions of the same obligation. It does not apply to separate actions on different causes of action. .
The judgment of the district court is affirmed. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
Amos E. Galemore recovered judgment against the Monarch Cement Company awarding him compensation in a lump sum for injuries which he sustained while employed in defendant’s plant. The court found that plaintiff’s average weekly earnings for the year preceding the injury was $10.03, and, finding from the evidence that he was and would be partially incapacitated for labor for a period of eight years, awarded $5 per week for that period, not counting the two weeks following the injury. It amounted to $2,070, and the court provided for a deduction of $551.07, which plaintiff had already received as compensation and for medical treatment.
Defendant claims that the allowance for the eight-year period was not warranted, but in the absence of the evidence the question is not open to review. ' The case is here upon findings alone, which are included in a memorandum opinion prepared by the trial judge. It is contended that the opinion indicates doubt about the liability of the defendant, and that this finding was a mere speculation. This contention is based upon a statement of the judge that—
“It becomes necessary to find whether the plaintiff was and is totally or partially incapacitated for work as a result of such injury; that he was so totally incapacitated for a time is clear, as before stated, but, whether such total incapacity will remain for the period of eight (8) years from the date of the injury, under the testimony, is speculative at best, but I am constrained to hold that for such a period of 'eight (8) years from the accident, he will be and is partially incapacitated from work as the result of the injury,” etc.
The doubt expressed was as to total incapacity for the period named. The judge had just stated that it was clear from the testimony that there had practically been total incapacity from the time of the accident until the trial, but he doubted whether the total incapacity would continue throughout the eight-year period. He was therefore constrained to resolve the doubt in favor of the defendant, and hence gave compensation on the basis of‘partial incapacity for that time, about which no doubt was expressed. Nothing is found in his opinion that impairs the force of the finding of partial incapacity.
It is next contended that the award of compensation in a lump sum was an abuse of discretion on the part of the court. Cases may be imagined where an award of a lump-sum judgment might constitute an abuse of discretion (Ackerson v. Zinc Co., 96 Kan. 781, 153 Pac. 530), but nothing approaching an abuse of discretion appears in the record of this case.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Nuss, J.:
Jami Del Swanigan was convicted by a jury of aggravated robbexy. In a split decision, the Court of Appeals affirmed the conviction. State v. Swanigan, No. 88,347, unpublished opinion filed December 19, 2003. We granted Swanigan’s petition for review pursuant to K.S.A. 20-3018(b).
Swanigan now raises two issues on appeal:
(1) Did the trial court err in denying his motion to suppress statements he made during police interrogations?
(2) Did the trial court err by failing to give a jury instruction regarding the voluntariness and truth of Swanigan’s statements?
We reverse the conviction and remand for a new trial because of error on issue one, which makes the second issue moot.
FACTS
Shortly before 4 a.m. on October 26, 2000, the Kwik Shop on West Cloud Street in Salina was robbed. According to clerk Krystal Keefer, she saw a black man put his hand up to the glass of the front window and look inside. He then rushed in the front door with a gun. Several times the robber told her to huriy and at one point told her that he would shoot her or kill her if she did not go faster. She opened the cash drawer, grabbed the bills, and handed them to the robber. As she began to grab the change, the robber turned and ran out the front door to the east. The robber stole $100 to $102.
Beverly Rindt saw a small compact car that was white, gray, or silver in color pull up behind her van. After she was done bagging newspapers in her van, she turned to go to the Kwik Shop and saw a man leave the shop and run east toward the car. Eric Harper also saw a litde white car and a Ford Ranger in the area at that time.
Surveillance cameras at the Kwik Shop captured video images of the robber. The man was wearing a blue bandana over his nose and mouth, blue denim shorts, a long-sleeved black or blue shirt, tennis shoes, and white socks. A photograph of the robber taken from the video was posted at the police station, and Lieutenant Christopher Trocheck believed the person shown to be Jami Swanigan.
Five days after the robbery, Shari Lanham, the lead investigator, accompanied another officer to Jessica Wegele’s house, where Swanigan was staying. Lanham asked Swanigan if he would come to the police department to answer questions about this robbery and other recent convenience store robberies in Salina. He agreed and rode in a patrol car to the station. Upon his arrival, he was placed in a locked waiting room for 30 to 45 minutes before the interrogation began.
The interrogation lasted from 5:03 p.m. until 6:20 p.m., with all but the first few minutes recorded on audiotape. When it began, Lanham read Swanigan his Miranda rights, which Swanigan indicated he understood. Swanigan first denied knowing anything about the robberies, but eventually said he had heard Marcus Brown was involved. Lanham falsely told Swanigan that his fingerprints had been found at the scene. She also informed him that he had been caught on the surveillance camera. Swanigan had no explanation for either fact, except that he had possibly been at the store before.
After Swanigan took a bathroom break, Lieutenant Mike Sweeney, who was in charge of criminal investigations and who supervised Lanham, joined the interrogation. Swanigan gave Sweeney and Lanham several different stories, but each version contained facts that were contrary to what the officers knew from the eyewitnesses. When confronted with the discrepancies, Swanigan then denied any involvement in the robbery.
Investigator James Feldman then joined the interrogation. Right after Feldmans comments, Swanigan confessed to the robbery. When a discrepancy arose over the clothes the robber had worn, Feldman showed Swanigan a photo from the surveillance video. Swanigan immediately denied the photo was of him and denied ' that he had any involvement in the robbery. Based primarily upon his interrogation — since latent fingerprints taken from the store, including the front window, were found not to be his — he was arrested and charged with aggravated robbery. Swanigan also gave the police an oral statement the next day, November 1, in which he again not only confessed to the robbery, but also then began providing facts that the officers knew were untrue, so they ended the interrogation.
On January 5, 2001, Swanigan filed a motion to suppress his two statements. At the February 23,2001, suppression hearing, the trial court denied the motion. The State introduced information from the statements into evidence at the jury trial where Swanigan was convicted of aggravated robbery. Based upon Swanigan’s criminal history classification, the court sentenced him to 88 months in prison.
ANALYSIS
Issue 1: Did the trial court err in denying Swanigan s motion to suppressP
Voluntariness Determination
In Swanigaris motion to suppress, he alleged that his statements were not voluntary, knowing, or intelligent under the totality of the circumstances. Specifically, Swanigan alleged that the police used coercive and deceptive tactics, including providing him false information that his fingerprints matched those found at the crime scene and promising that his cooperation in the investigation would help him.
At the hearing, Lieutenant Sweeney and investigators Lanham and Feldman testified, as did Dr. Robert Schulman, a clinical psychologist who had evaluated Swanigan for the defense. Admitted into evidence was a photograph of the robber taken from the surveillance video, Dr. Schulman’s report, and an audiotape of the October 31 police interrogation to which the trial court later listened. In later denying the motion, the judge stated:
“Well, here’s what I have to decide. I have to decide, regarding the voluntariness of statements, whether the State has proved by a preponderance of the evidence, considering the totality of the circumstances, whether Mr. Swanigan’s statements were freely and voluntarily made. There’s no question he was advised of his Miranda warnings. That’s not an issue. He was. The Court listened to the tape. There were some allegations that Mr. Swanigan was misled by some of the officers indicating that they’d found fingerprints when, in fact, they had not, or at least that his matched fingerprints found when they were not. There was also the suggestion that, Mr. Swanigan, that your physical and psychological state was such that your will was overcome by police tactics. There was also an allegation made that you were promised leniency.
“I’ve listened — I listened to the evidence on Friday. I listened to the tape. It is my thought that, considering the totality of the circumstances, the Court concludes that the State has proved by a preponderance of the evidence the statements should be admissible into evidence. Miranda warnings were given. Now, police interrogation is never pleasant. There’s always, by the very nature of the police atmosphere, some coercive circumstances or atmosphere. That’s the reason the Miranda warnings are given. They recognized that in Miranda that at least a subject should be told that they have a right to remain silent. Now, Mr. Swanigan could have exercised his right to remain silent any time. He could have asked for counsel. He did not.
“I listened to the officers on the tape, and I listened to them testify. There’s no way in the world that anyone could conclude after listening to that tape that Officer Shari Lanham exercised undue coercion on Mr. Swanigan. At no time were voices raised. At no time were any threats uttered. On the whole, it seemed to be a pretty level interrogation. It lasted just a little over an hour. There were breaks taken. I can’t see in these particular circumstances how anyone could look at that circumstance and say that Mr. Swanigan wasn’t treated humanely. He was. I don’t see any indication of out-of-bounds conduct by the police.
“Now, as far as the promises made, Mr. Swanigan was told several times that if he cooperated that that would be conveyed to anybody who might pursue the case. No specific promises of leniency were made. As a matter of fact, several times, the Court heard on the tape that Lieutenant Sweeney indicated that there couldn’t be any promises made by those in authority. So, I think the conduct of the police is within bounds, and that’s my decision on that.
....
“I did — I failed to mention that at the hearing the defendant called an expert witness, Dr. Robert Schulman, Ph.D., licensed clinical psychologist. In his report, in his testimony, he indicated that the clinical examination of Mr. Swanigan was within normal limits. He also concluded there’s no indication of any underlying associative thought disorder. . . . The overall cognitive functioning, while low, is generally intact.
“It would seem to me that — the Court considered that testimony. I found nothing there that would lead me to believe that Mr. Swanigan was of such a psychological state that it was improper for the police to interrogate and talk to him. And, by the way, there’s no allegation the police induced to cause that psychological state. And, for all of these reasons, the Court believes simply that the State has proved by preponderance of the evidence that the statements of Mr. Swanigan on October 31st of the year 2000, and the next day, follow-up, should be admitted into evidence.”
Our standard of review of the trial court’s findings of fact and conclusions of law is well-known:
“In reviewing a district court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. [Citation omitted.] This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Mays, 277 Kan. 359, 372, 85 P.3d 1208 (2004).
We stated additional considerations specifically concerning confessions in State v. Sanders, 272 Kan. 445, 452, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002):
“In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and the required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of tire interrogation; the ability of the accused on request to communicate with die outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused.” ’ ” (quoting State v. Boston, 261 Kan. 100, 105, 928 P.2d 79 [1966]).
Similar to his position at the suppression hearing, Swanigan argues on appeal that his confession was involuntary, i.e., his will was overborne by the interrogators, primarily because of two of the specific circumstances identified in Sanders. First, he claims low intellect. Second, he claims the interrogating officers were unfair. In particular, he argues they lied that his fingerprints were found at the Kwik Shop. He also argues the officers were unfair because they told him that his cooperation, or lack thereof, would determine whether he was dealt with gently or harshly. According to Swanigan, if he failed to confess to the October 26 robbery, he not only could be charged in five convenience store robberies but also, upon the officers’ recommendation, he would receive harsh treatment from the county attorney. In addition to Sanders, he cites an evidentiary statute, K.S.A. 2004 Supp. 60-460(f)(2)(B) (statement inadmissible when suspect induced to make it “by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same”).
Under our standard of review, we first examine the evidence at the suppression hearing to determine if it is competent and substantial enough to support the trial court’s findings. We begin with the fingerprints. The trial court stated: “There were some allegations that Mr. Swanigan was misled by some of the officers indicating that they’d found fingerprints when, in fact, they had not, or at least that his matched fingerprints found when they were not.” However, outside of this statement, and a declaration that “the totality of the circumstances” were considered, it is unclear whether the court found the deception was actually performed by the officers or was merely alleged by Swanigan. As the following record excerpts reveal, the evidence clearly demonstrates the deception was performed.
When Lanham challenged Swanigan’s assertion that he did not know anything else about the robberies, the following occurred:
“[Lanham:] Okay. I don’t think you’re being honest, Jami. As a matter of fact I know you’re not being honest. You know how I know?
“[Swanigan]: How?
“[Lanham]: The lieutenant just told me that we have your fingerprints at the robbery. So you need to get it straight . . . .”
When asked at the suppression hearing why she told Swanigan his fingerprints were found at the scene, Lanham answered, “I suppose I said it so he would think that his fingerprints were there.” When asked why she would want him to think that,' Lanham replied, “So he would give me an admission.”
The evidence is virtually undisputed that the officers repeated the fingerprint deception throughout the interrogation. Lieutenant Sweeney told Swanigan:
“Explain to me, I want you to give me a good reason why your fingerprints are on that window over there. I can’t explain that why. That’s one thing you cannot dispute. Have you heard about the forensics of fingerprints?
....
“If I put my fingerprint right there, there isn’t another person in the world that can prove that that would be the same fingerprint. So you go ahead and explain to me how your fingerprints got right there at that one exact spot where the clerk pointed out where you sat there and looked in the window.
....
"... I know you been there ’cause your fingerprint is on that window.”
Later, when Swanigan said his fingerprint was there because he went to the store one day and put his hand on the window to see what was in the store, Sweeney replied:
“No. Because they pointed exactly where this was. There’s only one spot that had fingerprints on. She goes, ‘He looked through that window right there.' We look at the window, there’s fingerprints on it. We dust the fingerprint. We compare it. Your name got brought up, we look at the picture. Yes, that is Jami. We go, we compare the fingerprint. It’s Jami Swanigan. So what else do we need to do now?”
We next consider evidence at the suppression hearing concerning the officers’ alleged promises, threats, or both. Regarding promises, the trial court found that “Swanigan was told several times that if he cooperated that that would be conveyed to anybody who might pursue the case.” The court further found that although “[t]here was ... an allegation made that you were promised leniency,” that “[n]o specific promises of leniency were made,” and that several times “Lieutenant Sweeney indicated that there couldn’t be any promises made by those in authority.” As shown below, substantial competent evidence supports these trial court findings.
Regarding threats, the trial court found: “At no time were any threats uttered.” We agree no express threats were uttered, but find that evidence of implied threats exists on the audiotape. The implicit threats are occasionally intertwined with the officers’ urgings that Swanigan cooperate. Examples from both categories of interrogation techniques are italicized below:
“[Lanham:] So you need to come clean. You know what’s gonna happen after I get done talking with you Jami. I’ve gotta do a report. Right? You know that. That’s all we do here is reports. And I need to go and put in my report that Jami cooperated. I need to be able to tell Parrish that you, that you cooperated with me and that you came clean and that you got it straight. And that you weren’t involved in all of them because you know what Jami? I don’t think you’re involved in all of them. I think you had a small part in one of them, and that’s what I want from you. That’s what we need to know from you so that you don’t go down for all these robberies. We just want to know your involvement in yours. That’s all we want to know from you, so that you don’t get charged with all of them. ’Cause I honestly don’t think you’re involved in all of them, Jami. And if these guys [apparently robbery suspects in an adjoining room] are saying that, I don’t think that’s right for you.
....
“And if you come clean with me about your involvement, in whichever robbery it was, then that’s gonna help you out a lot when it comes to court time. Because I can put it in my report that Jami cooperated with me, he understood what the circumstances were but he still told me the truth.” (Emphasis added.)
Later in the interview Lanham said: “I just need you to tell me how you was involved. Jami, you know it’s the right thing to do. It’s gonna help you in the long run and you know it. ’Cause I guarantee there’s a lot of difference between going to jail for five robberies than there is for one.” (Emphasis added.)
When Sweeney asked Swanigan whether the county attorney knew him, Swanigan said yes, from car robberies in which he had been involved. Sweeney responded:
“[Sweeney:] Okay, but also, um, we’re also, you know they’ve [county attorney’s office] got several cases going through at one time, I mean, they uh, they come and go so what they have to do is base their opinion on what should they do on the reports that we write.
....
“. . . If you’re willing to get it straightened out and tell it to me it was the other people involved or what you know, or maybe we can wheel and deal or whatever I don’t know. I can’t promise you anything. But what I’m trying to do is get the truth first.
....
“So what do we need to do now? What we need to do is for Jami to start telling us the truth. Telling us what happened. Because we got Jami coming in, with a gun, robbing the place. We got it on film too.
“[Swanigan:] That’s what ... I don’t know. I don’t know what it is.
“[Sweeney:] Okay. Jami, we’re going to charge you with aggravated robbery.
We’re gonna show that you’re not cooperating with us.
....
“What I’m saying is that we can write the report where it shows that you’re willing to get this straightened out, tell the complete truth.
‘We’re asking you do that please.
“If you don’t want to .. . Don’t mess with him any further. Just throw him in jail for aggravated robbery.
“[Swanigan:] I do not want to go to jail. I do not want to go to jail.” (Emphasis added.)
Investigator Lanham also told Swanigan:
“I know you been listening to this room [presumably the adjoining room containing another suspect]. We have him gettin’ it straight. He’s in there cooperating. He’s gonna help them find the evidence. And you know what? That’s gonna help him in the long run. Absolutely is gonna help him in the long run. Because that investigator is gonna write his report and he’s gonna say this person cooperated with me. He told me the story, he told me how it went down, he even showed me where the evidence was. And you know what? That is gonna help him. And this ain’t gonna help you, what’s going on in here, Jami.” (Emphasis added.)
Finally, after Sweeney departed and Investigator Feldman entered the room, he told Swanigan:
“Jami, the best thing you can do right now . . . You’re going to jail. It’s guaranteed. You are going to jail. You got one of two options. You can sit there and B. S. and act like we’re, we’re idiots and tell these lame stories and we’ll write every word you say down and send it over to the county attorney and you’ll have every lawyer reading that going, Jesus Christ, this is bullshit!’ And you know what they’re [county attorney] gonna say ? Well, when your lawyer comes up and goes, ‘Hey, can we get a deal?’ You know what they’re gonna say? ‘Read the report. He, he played games the whole time. He doesn’t deserve a break. He hasn’t learned from, any of the mistakes he made. ’ Or you can go down and you can say, ‘Here’s what I did. I fucked up. I’m sorry about it. This is what happened. This is what I did. This is what I know.’ And you know what they’re [county attorney] gonna say? ‘Maybe he’s learning. Maybe he’s becoming an adult. Maybe he deserves a chance.’ But you’re not gonna have that chance if you start B.S.ing and continue to play these stupid games. Why do you think you’re down here Jami? We know you did it. We’ve got pictures. You’re in those pictures .... Don’t play games, you’re screwed. It’s . . . Jami, you’re gonna have to learn, one time. You’ve gotta take responsibility for your actions. You can sit here and play your games all you want and you know where it’s gonna end up. You’re gonna end up back in prison. You’ve got one of two choices. Be a man and take responsibility and say, ‘Hey, I’m sorry. I screwed up. I got in a bad spot. I needed some money. I needed whatever. But I made a mistake. I’m sorry about that. ’ Or you can say, 1 just stood outside and watched. I wouldn’t do anything like that.’ That’s bullshit. What’s it gonna be Jami? The ball’s in your court. You already know you’re going to jail.
“You can show that you made a mistake and you want to take responsibility for your actions and you apologize for it. Or you sit there and play stupid. And then you’re gonna fry. Because when the county attorney comes to Sweeney or Lanham and goes, ‘What do you think? Here’s the deal [plea bargain] that I’m being offered.’ You know what we’re gonna say if you’re playing games? ‘Screw ya.’ ” (Emphasis added.)
Lanham then told Swanigan, “And if you don’t think they [county attorney] ask our opinion you’re crazy cause they do.” Immediately after these comments by officers Feldman and Lanham, the following exchange occurred:
“[Swanigan:] “Everything happened so fast. I was standing up at the window. I looked in, put my hand up on the window and looked in. I walked inside the store with a gun in my hand. And I pointed it at the um, clerk and asked, and tell him give me all your money. And he tried, you know, I kept on_(unintelligible)__ I got real mad and said, ‘Give me your money or I’ll kill you.’ So he finally gave me the money. I got out, ran, and jumped into a car and took off back to Marisha’s house and we bought beer and all other things with that money and now that money has disappeared.
“F: How much did you get?
“S: About a hundred and something.
“L: Were you by yourself?
“S: Yes.
“F: Whose car?
“S: It was, um,-(unintelligible)-Marisha’s car.
....
“F: What kind of car is that?
“S: It’s a, um, it’s a Cavalier.
“F: What color?
“S: Dark blue.
“L: Where’d you park at?
“S: On the side of the street.
“L: What street, do you know?
“S: That street right beside Tally Ho [trailer park]. I’m like, I’m like ...
“F: Okay. Here’s, here’s Kwik Shop, this is Kwik Shop, and these are, that’s the one street and that’s the one street over here, that’s the trailer park, that’s the trailer park.
“S: That’s where I was at, the trailer park.
“F: Point out where.
“S: On this side.
“F: Okay. How did you come up with this idea?
“S: Because I needed, I needed some money. And I was dead broke.
“L: Where’d you get that gun?
“S: I got the gun from Marcus.
“L: Where’s it at now?
“S: I don’t know.
“F: What’d you do after the robbery with it?
“S: I gave it back to him.
“F: What kind of gun was it?
“S: It was like a um, .38, something like that.
“F: Semi-automatic, revolver or what?
“S: I think it was a revolver.
“F: Okay. Was it loaded?
“S: No, it wasn’t.
“F: What were you wearing?
“S: I was wearing, I was wearing tan'pants and, um, tan shirt that’s over at Jessica’s house.
“F: Over at Jessica’s house? Where at Jessica’s house?
“S: On Duvall.
“F: Where, where at?
“S: 676 Duvall.
“L: So that outfit that you have on, the other one. There’s another outfit there just like this one you have on, right? That what you were wearing?
“S: Yeah.
“L: Really.” (Emphasis added.)
In an apparent attempt to wrap up Swanigan’s confession, Feldman produced a photograph of the robber from the surveillance video and asked, “That’ you?” Swanigan vehemently denied it: “Hell no! I can tell you that’s not me. I can tell you that’s not me.” Among other things, Swanigan pointed out that the figure in the photograph was not wearing tan pants and a tan shirt, contrary to what he had just confessed.
From that point until the interrogation ended, Swanigan denied that he was involved in the robbery. When Lanham asked Swanigan how he would therefore know exactly how the robbery happened, he replied, “Because you guys done gave me tips behind how it done happened.” When Lanham asked why he would make up the story that he committed the robbery when he actually had not, Swanigan responded, “Because you guys are forcing me to do this.” When she denied forcing him into saying anything, he said, "When I try to tell you the truth you guys say it’s me.”
We next consider evidence at the suppression hearing concerning Swanigan’s intellect and psychological state. The trial court found:
“In his report, in his testimony, [Dr. Schulman] indicated that the clinical examination of Mr. Swanigan was within normal limits. He also concluded there’s no indication of any underlying associative thought disorder. . . . The overall cognitive functioning, while low, is generally intact.
“. . . [T]he court considered that testimony. I found nothing there that would lead me to believe that Mr. Swanigan was of such a psychological state that it was improper for the police to interrogate and talk to him.”
While substantial competent evidence exists in the record to support these findings, the finding about Swanigan’s “psychological state” incorrectly frames the issue as dispositive, i.e., whether the police can or cannot interrogate him. Here, the issue instead is whether his psychological state, e.g., susceptibility to being overborne by anxiety during the allowable interrogation, was considered as one of the factors in the totality of circumstances for determining the voluntariness of the confession. Similarly, the trial court’s findings also seemingly fail to address the particular impact of Swanigan’s intellect — an IQ of 76 — during the allowable interrogation. While this court does not reweigh evidence when reviewing trial court findings, neither can a key factor such as a low IQ be ignored when considering the totality of the circumstances.
Dr. Schulman’s report on Swanigan was reviewed by the trial court, and in a section titled “examination findings” it states:
“Estimated, intellectual functioning is in the borderline range of intellectual abilities with an estimated IQ of 76. He says that he missed a lot of school, that he was in regular classes and did not enjoy going to high school. The clinical examination is essentially within normal limits. He shows some mild depression. He also shows difficulty in dealing with anxiety and is susceptible to being overcome by anxiety but in this setting he shows good control. There are no indications of any underlying associative thought disturbance.
....
“Overall cognitive functioning while low is generally intact and in keeping with lack of interest in school and lack of interest in academics. Susceptibility to anxiety will reduce judgment in settings where anxiety is created.” (Emphasis added.)
Under a section titled “explanatory formulation,” Dr. Schulman concluded in his report:
“This is a man who does not like to be seen as being incompetent, is able to give the appearance of understanding and functioning at a level better than in fact he is capable of doing, and while in a custodial setting with law enforcement officers is likely not only to feel anxiety but irritability and anger and make statements that may not be in his best interest and may not be true. This would be particularly true if he believed that the officers were being less than trueful [sic] and wanting to pressure him in a particular way.” (Emphasis added.)
Schulman confirmed at the hearing that Swanigan had some difficulty in managing anxiety and showed the potential to be overcome by it. Accordingly, the record establishes not only that Swanigan’s estimated IQ is 76, but also that he has some tendency to be anxious in custodial settings and has difficulty in dealing with anxiety to the extent he is susceptible to being overcome by it.
With the facts behind us, we now independently determine the conclusion of law: whether Swanigan’s statements were voluntary. As noted, this requires an examination of the “totality of the circumstances.” State v. Sanders, 272 Kan. 445, 452, 33 P.3d 596 (2001), cert. denied 536 U.S. 963 (2002). The ones at issue in the instant case are unfairness (lies, promises, and threats), low intellect, and anxiety in custodial settings.
Unfairness as a circumstance
Swanigan first argues that as a police tactic to overbear his will and extract a confession, the officers repeatedly confronted him with the false information that his fingerprints were found at the scene of the crime.
In State v. Wakefield, 267 Kan. 116, 977 P.2d 941 (1999), this court considered whether the defendant’s statements were coerced when officers falsely represented that they had information and evidence implicating him in a murder. The district court found that although the detective lied in saying the defendant’s fingerprints were upstairs, these were bluffs successfully used to convince him to make certain statements in response.
In Wakefield, we observed that in Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969), the United States Supreme Court held that a questioning officer’s false statement to the defendant that the defendant’s cousin had been brought in and confessed, when viewed as part of the totality of the circumstances, was insufficient to make the otherwise voluntary confession inadmissible. 267 Kan. at 128. Accordingly, we concluded, after reviewing the totality of the circumstances, that fingerprint misrepresentations to defendant Wakefield during the law enforcement interviews did not alone make his confession involuntary.
Accordingly, under Wakefield Salina police were free to he about evidence that fingerprints were found at the Kwik Shop and confirmed to be Swanigan’s. However, also under Wakefield, the false information must be viewed as a circumstance in conjunction with others, e.g., additional police interrogation tactics.
The second unfair tactic Swanigan argues the police used to overbear his will was their repeatedly telling him that he would be helping or hurting himself by what he told them. According to him, they urged him to confess to the crime so that they could report that he had cooperated. He claims that when he told them he did not commit the crime, they threatened to report that he was not cooperating, occasionally suggesting that he would be charged with more robberies if he did not confess. At the time, Swanigan was on probation.
The audiotape of the interview, which is excerpted earlier in the opinion, supports Swanigan’s arguments. Investigator I,an ham mentioned the other robberies and the need for Swanigan’s cooperation, adding she “needed” to put in her report that he co operated. She thought he had a small part in one of the robberies, “and that’s what I want from you. That’s what we need to know from you so that you don’t go down for all these robberies.” She repeats, “We just want to know your involvement in yours. That’s all we want to know from you, so that you don’t get charged with all of them.” She later elaborates upon this incentive to confess: “I guarantee there’s a lot of difference between going to jail for five robberies than there is for one.”
Sweeney repeated the need for police to show that Swanigan had cooperated and indicated what would happen if Swanigan did not. “[W]e can write the report where it shows that you’re willing to get this straightened out” and, if not, “Jami, we’re going to charge you with aggravated robbery. We’re gonna show [the county attorney] that you’re not cooperating with us.” Finally, “If you don’t want to [cooperate] . . . [j]ust throw him in jail for aggravated robbery.”
Like Lanham and Sweeney, Feldman suggested positive consequences for Swanigan admitting his mistake, i.e., confessing to the robbery, but suggested negative consequences if he did not so “cooperate.” He specifically mentioned the influence the interrogators have with the county attorney’s office, including what they write in their report. Feldman informed Swanigan that if he continued to tell these “lame stories” that when his lawyer asks for a “deal,” the county attorney will show Swanigan’s lawyer Feldman’s report and reject any deal for leniency, i.e., “[h]e doesn’t deserve a break.” Feldman went on to tell Swanigan that if Swanigan continued to “sit there and play stupid” that “then you’re gonna fry.” Swanigan would fry because when the county attorney asked the police interrogators if she should accept the deal offered by Swanigan’s counsel, they would say, “Screw ya.” Lanham then reinforced Feldman by informing Swanigan that the county attorney certainly does ask the police officers for their opinions on “deals.”
This court has held that, without more, a law enforcement officer’s offer to convey a suspect’s cooperation to the prosecutor is insufficient to make a confession involuntary. State v. Banks, 260 Kan. 918, 924, 927 P.2d 456 (1996) (“it will be noted by the authorities that you did cooperate”); State v. Johnson, 253 Kan. 75, 82, 853 P.2d 34 (1993) (law enforcement officer stated he would go to the district attorney and tell him if tire person was cooperating); State v. Harwick, 220 Kan. 572, 575-76, 552 P.2d 987 (1976). Likewise, we have declined to find a confession involuntary when the police encourage the accused to tell the truth. State v. Newfield, 229 Kan. 347, 359, 623 P.2d 1349 (1981); State v. Tillery, 227 Kan. 342, 344, 606 P.2d 1031 (1980); State v. Kornstett, 62 Kan. 221, 227, 61 Pac. 805 (1900) (“mere advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent”).
Kansas appellate courts, however, have not addressed the other side “of the same coin,” United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 1994), i.e., law enforcement conveying a suspect’s lack of cooperation to the prosecutor. A growing number of courts have disapproved this tactic. Those not finding that it is coercive per se regard it as another circumstance to be considered in determining the voluntariness of the confession.
In United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981), the Ninth Circuit Court of Appeals, like Kansas courts, acknowledged that an interrogating officer’s representation to a suspect that his cooperation will be made known to the prosecutor, standing alone, does not necessarily render a subsequent confession involuntary. It was one of a series of representations made, and the court considered the cumulative effect of the statements in order to determine whether the confession was voluntary. 658 F.2d at 1336 n.4.
The Tingle court, however, particularly disapproved of an interrogating officer’s representation that the defendant’s failure to cooperate will be communicated to a prosecutor. It stated:
“Refusal to cooperate is every defendant’s right under the fifth amendment. Under our adversary system of criminal justice, a defendant may not be made to suffer for his silence. Because there is no legitimate purpose for the statement that failure to cooperate will be reported and because its only apparent objective is to coerce, we disapprove the making of such representations.” 658 F.2d at 1336 n.5.
See also United States v. Harrison, 34 F.3d at 891-92 (“[T]here are no circumstances in which law enforcement officers may suggest that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor.”); United States v. Leon Guerrero, 847 F.2d 1363, 1366 n.2 (9th Cir. 1988) (“[Threatening to inform the prosecutor of a suspect’s refusal to cooperate violates her fifth amendment right to remain silent.”); Ex parte Mathews, 601 So. 2d 52 (Ala. 1992) (investigator’s statements engineered and encouraged defendant to think that he would be more favorably dealt with if he would confess, e.g., “I can go back and tell the district attorney [that you] cooperated with me, or I can go back and tell the district attorney that [you] did not cooperate with me”); Beavers v. State, 998 P.2d 1040, 1045-46 (Alaska 2000); State v. Blakley, 204 Ariz. 429, 436, 65 P.3d 77 (2003) (“most worrisome part of this interview was Detective Siebrecht’s suggestion that the county attorney might be notified of Blakley’s uncooperative behavior”); State v. Strayhand, 184 Ariz. 571, 580-81, 911 P.2d 577 (Ct. App. 1995) (when defendant refused to talk, detectives told him that they were going to “file their recommendation that he was uncooperative”); Passama v. State, 103 Nev. 212, 215, 735 P.2d 321 (1987); State v. Tuttle, 650 N.W.2d 20, 35 (S.D. 2002); cf. State v. Banks, 260 Kan. 918, 923-24, 927 P.2d 456 (1996) (If the accused was not deprived of his free choice to admit, deny, or refuse to answer, tihe statement may be considered voluntary.) (citing State v. Zimmerman, 251 Kan. 54, 833 P.2d 925 [1992]).
State v. Tuttle merits discussion. There, the South Dakota Supreme Court addressed a suspect in an aggravated assault case who had been told by a detective while in custody that the detective’s report would be written to make things look good for the defendant or that the detective was “gonna have to write it up that you’re not cooperating, you’re being a real jerk about it.” 650 N.W.2d at 35. The court concluded, “The unmistakable message was, if Tuttle refused to confess, then the report to the authorities would be written to discourage any leniency, meaning Tuttle would likely suffer more severely for not confessing. This was coercive.” 650 N.W.2d at 35. The court held that the threat was one factor to consider in the totality of circumstances to determine voluntariness of his confession. It ultimately concluded Tuttle’s will was over borne and the overreaching police conduct was causally related to the confession, i.e., it was involuntary.
Similarly, in Passama v. State, in which the defendant confessed to lewdness with a minor, the Nevada Supreme Court observed:
“The promises [Sheriff] Miller made to Passama are the crucial aspect of the interrogation. If these promises, implicit and explicit, tricked Passama into confessing, his confession was involuntary. [Citation omitted.] Miller told Passama that he would tell the prosecutor if Passama cooperated. This can be a permissible tactic. United States v. Tingle, 658 F.2d 1332, 1336, n.4. (9th Cir. 1981). Miller also told Passama he would go to the D.A. and see Passama went to prison if he was not entirely truthful. It is not permissible to tell a defendant that his failure to cooperate will be communicated to the prosecutor. Tingle, 658 F.2d at 1336, n.5.” 103 Nev. at 215.
In Passama, the sheriff told Passama, “Ed, don’t sit there and Me to me, ’cause if you’re lying to me I’ll push it and I’ll see that you go to prison .... Go into court not lying and we’ll help you. . . . [B]ut if you he I’ll tell the D.A. to go all the way.” 103 Nev. at 215. According to the court, this “carrot and stick” approach yielded results, and “[t]he sheriff continued to suggest how the improper fondling of the girls had occurred until he secured the written confessions.” 103 Nev. at 215, 216. After examining the totality of the circumstances, the court concluded “that Sheriff Miller used impermissibly coercive methods to extract Passama’s confession.” 103 Nev. at 215.
We agree with the rationale and holdings of the decisions cited. In particular, we hold that threatening Swanigan with telling the county attorney of his lack of cooperation is inconsistent with his rights articulated in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). There, the Supreme Court established a prophylactic, procedural mechanism that safeguards a defendant’s Fifth Amendment privilege against self-incrimination from the inherent pressures of the interrogation atmosphere. Included in the mechanism is a requirement for informing the suspect of the right to remain silent, accompanied by the assurance of a continuous opportunity to exercise it throughout the interrogation. 384 U.S. at 444, 467, 479, 490. “Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.” (Emphasis added.) 384 U.S. at 469.
As the Miranda court stated: “[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation.” 384 U.S. at 468 n.37. Accordingly, we fail to see how law enforcement can be required by Miranda to advise Swanigan of his right to remain silent, and then can be allowed to warn him of punishment for his “noncooperation” when he exercises that right. Accordingly, we need not determine whether this tactic otherwise constitutes a “threat” under K.S.A. 2004 Supp. 60-460(f). On the other hand, we do not regard this tactic as one which makes the confession involuntary per se, but rather as one factor to be considered in the totality of circumstances. See, e.g., Tuttle, 650 N.W.2d at 35; Passama, 103 Nev. at 214.
Turning now to the assertion that detectives told Swanigan he would be charged for five convenience store robberies instead of just one unless he confessed, we first examine general statements of Kansas law.
K.S.A. 60-460(f) provides in relevant part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
....
(f) Confessions. In a criminal proceeding as against the accused, a previous statement by the accused relative to the offense charged, but only if the judge finds that the accused ... (2) was not induced to make the statement . . . (B) by threats or promises concerning action to be taken by a public official with reference to the crime, likely to cause the accused to make such a statement falsely, and made by a person whom the accused reasonably believed to have the power or authority to execute the same." (Emphasis added.)
See State v. McBroom, 252 Kan. 376, 382, 845 P.2d 654 (1993); State v. McCarther, 197 Kan. 279, Syl. ¶ 4, 416 P.2d 290 (1966) (confession inadmissible when elicited by force or threats).
No Kansas cases have addressed this specific issue. However, Aguilar v. State, 106 N.M. 798, 751 P.2d 178 (1988), is directly on point. Among other things, during Aguilar’s interrogation the po lice chief implied that if Aguilar did not confess to the burglary, he would be charged in connection with unrelated incidents of vandalism in town. Aguilar then confessed. In examining interrogation techniques quite similar to those in the instant case, the New Mexico Supreme Court held:
“Chief Barela’s interrogation alternated between threatening the defendant with charges in connection with unrelated incidents of vandalism in Dexter and assuring the defendant that a confession to the burglary would be looked upon favorably by all concerned. In the totality of the circumstances, this interrogation technique is preponderant. In comparison with all evidence to the contrary, these implied threats and promises, especially when knowingly made to a defendant with diminished mental capacity, rendered the confession involuntary as a matter of law. See State v. Tindle, 104 N.M. 195, 718 P.2d 705 (Ct. App. 1986).” 106 N.M. at 800.
Our decision in State v. Stuart, 206 Kan. 11, 476 P.2d 975 (1970), is consistent with the Aguilar holding. There, this court found that the defendant was induced to confess that he took certain sums of money from the local Elks Club in exchange for a promise that he would not be prosecuted if the matter was settled. The court also expressed the bargain as the result of a threat: “Members of the Elks Club were sure they could recover money from the appellant and unless he did something to meet the demands, he would be prosecuted.” 206 Kan. at 14. After quoting K.S.A. 1970 Supp. 60-460(f), this court found that “because of the apparent sanction given the action of Elks members by the county attorney, the defendant was justified in believing he would be prosecuted if he did not admit to the taking of the money.” 206 Kan. at 15. The court held that this prejudiced the defendant and, due to other prejudice caused by “Lady Elks” serving on the jury, reversed his burglary conviction and granted him a new trial.
Low Intellect and Anxiety as Circumstances
Lastly, Swanigan argues his low intellect and his susceptibility to being overcome by anxiety should be considered in the totality of the circumstances as we examine the voluntariness of his confession. See State v. Lane, 262 Kan. 373, 386, 940 P.2d 422 (1997) (mental condition is only one factor). He also cites Crane v. Kentucky, 476 U.S. 683, 687, 90 L. Ed. 2d 636, 106 S. Ct. 2142 (1986): “It is by now well-established that ‘certain interrogation techniques, either in isolation, or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.’ ” (Emphasis added.)
We agree with Swanigan that these factors should be considered. See State v. Mays, 277 Kan. 359, 374, 376, 85 P.3d 1208 (2004) (verbal IQ of 77); Lane, 262 Kan. at 386 (IQ of 77); Aguilar v. State, 106 N.M. at 800 (expert witness testimony that interrogation was stressful on suspect, possibly causing him to act impulsively).
As noted previously, the trial court did not specifically assess Swanigan’s IQ of 76 as a factor in the voluntariness determination. Nor did the court consider his psychological state during the interrogation, finding only that it was insufficient to make the police interrogation improper at all. Our review of the record, including the audiotape of the October 31 interrogation, discloses that Swanigan’s relatively low IQ and his susceptibility to being overcome by anxiety played a part in his alternating denials and confessions (which themselves varied considerably). His confession began to unravel for the last time when the robber in the photo was wearing the wrong clothes. Swanigan then admitted his prior details about the robbery had come solely from the officers, claimed they had forced him to falsely admit he committed the robbery, and when Lanham denied forcing him, he explained, “When I try to tell you the truth you guys say it’s me.”
Totality of Circumstances
Although any one of these factors which Swanigan asserts — his low intellect and susceptibility to being overcome by anxiety, the officers’ repeated use of false information, and their threats and promises — may not be sufficient to show coercion, the combination of all of them in this case leads us to conclude as a matter of law that Swanigan’s October 31 statement was not the result of his free will, but was involuntary.
Under quite similar circumstances, the New Mexico Supreme Court concluded the same in Aguilar v. State, 106 N.M. 798. There, the chief of police interrogated the suspect and acknowl edged that he encouraged Aguilar to confess to the burglary by assuring him that a confession to the crime would be taken into favorable consideration by everyone concerned; the chief further admitted having told Aguilar that the police had found the perpetrator’s fingerprints at the scene, although no fingerprints were introduced at trial; tire chief further admitted having implied that, if Aguilar did not confess, he could be charged in connection with unrelated incidents of vandalism in town; Aguilar’s IQ was 70, placing him on the borderline of mental retardation; a forensic evaluator testified that the interrogation would have been stressful on Aguilar, possibly causing him to act impulsively. Using the totality of the circumstances test, the court held the admission to be involuntary, reversing the trial court and the court of appeals.
We acknowledge that there must be a link between the coercive conduct of the State and the confession. Colorado v. Connelly, 479 U.S. 157, 164-65, 93 L. Ed. 2d 473, 107 S. Ct. 515 (1986); Lane, 262 Kan. at 386; State v. Strauch, 239 Kan. 203, 212-13, 718 P.2d 613 (1986). A thorough review of the record, as partly evidenced by the facts set forth in this opinion, clearly shows that Swanigan’s numerous changes in story, whether in denial or in confession, usually occurred shortly after the officers lied to or threatened him. As such, his October 31 statement should have been excluded as evidence at trial. See Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991).
Taint
As for Swanigan’s November 1 statement, we observe that like his October 31 statement, the police approached Swanigan, Mirandized him, and he waived his rights. But unlike the earlier statement, it was short and not recorded, perhaps because its main purpose, according to Sweeney, was to implicate Marcus Brown, not to incriminate Swanigan. The only evidence of the statement’s content at the suppression hearing consists of Sweeney’s brief testimony. The gist of Swanigan’s statement is contained in the following excerpt:
“Q: Did the defendant malee any statements at that time?
“A: Yes. He told me that he obtained the gun from Marcus Brown and left, or, and that he left in a Marisha McWilliams’s vehicle, went to the bowling alley, talked to Marisha, who was still at work. Then he went by Jessica Wegele’s house, but she was not home. He then drove down Centennial Road to Cloud. He parked his vehicle in the Tally Ho trailer court, stayed there a couple minutes planning the robbery. He walked up to the window, looked inside to make sure no one was there and then went in and robbed the place. And he said that the clerk looked like a female. He got anywhere from one to two hundred dollars. Then he corrected himself, that it was more than two hundred.
“Q: Then, did he start to change his attitude or his willingness to speak with you? “A: Yes. As in the other interviews that we were talking to him, you would ask him questions and he would just start making other statements that we know were not true, and so then I terminated the interview.” (Emphasis added.)
The trial court considered the October 31 and November 1 statements together, concluding that both were voluntarily made and both should be admitted into evidence. On appeal, the parties do the same, i.e., the State argues both were voluntary and Swanigan argues both were involuntary. However, now that we have held that the first statement was involuntary, the analysis of the second statement is modified. In addition to considering the totality of the circumstances per State v. Sanders, we must also consider whether the coercion of the first statement “tainted” the voluntariness of the second, rendering it involuntary.
Kansas appellate courts have addressed similar situations, usually involving a failure to Mirandize the defendant before at least one of the statements. See, e.g., State v. Hebert, 277 Kan. 61, 82 P.3d 470 (2004); State v. Lewis, 258 Kan. 24, 899 P.2d 1027 (1995). However, no Kansas appellate court has addressed a situation when a coerced Mirandized statement may affect the second Mirandized statement. Accordingly, we look to other jurisdictions.
In United States v. Marenghi, 109 F.3d 28 (1st Cir. 1997), the First Circuit Court of Appeals explained the different approaches required for analyzing (1) a situation concerning merely an unMirandized statement and (2) a situation concerning a truly coerced statement:
“There is an enormous difference . . . between ‘the uncertain consequences of disclosure of a ‘guilty secret’ freely given in response to an unwarned [unMirandized] but uncoercive question’ and ‘the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will . . . .’ [Oregon v. Elstad, 470 U.S. 298, 312, 84 L. Ed. 2d 222, 105 S. Ct. 1285 (1985)]. As such, when the infirmity underlying an initial statement transcends the mere failure to follow the dictates of Miranda, the determination as to the admissibility of a subsequent statement is much more involved. A careful and thorough administration of Miranda warnings alone is not necessarily sufficient to ensure the validity of the subsequent statement. See [470 U.S. at 310].
“This is so because the danger exists that the coercive nature of the circumstances under which the initial statement was obtained lingered in the mind of the defendant at the time he or she provided the subsequent statement, irrespective of the fact that he or she had been advised of the Miranda warnings and made the subsequent statement in an atmosphere devoid of coercion or compulsion. [Citation omitted.] In this instance, a court cannot determine the admissibility of the subsequent statement solely by examining the circumstances surrounding that statement. Instead, it must determine whether the subsequent statement is sufficiently removed from the milieu of the coerced statement so as to preclude any lingering taint.” 109 F.3d at 32.
The Marenghi court agreed with the trial court’s determination that the second statement had been voluntarily made, but then proceeded to determine
“whether the written statement could possibly have been tainted by any coercion lingering from the [first statement]. In order to resolve this issue, we must compare and contrast the circumstances surrounding each of the two statements. In so doing, we look to several factors; [1] the change in the place of the interrogations; [2] the time that passed between the statements; and [3] the change in the identity of the interrogators. See Oregon v. Elstad, 470 U.S. at 310, 105 S. Ct. at 1293-94.” Marenghi, 109 F.3d at 33.
See Watson v. Detella, 122 F.3d 450 (7th Cir. 1997); United States v. Perdue, 8 F.3d 1455; United States v. Jenkins, 938 F.2d 934 (9th Cir. 1991); United States v. Wauneka, 770 F.2d 1434 (9th Cir. 1985); State v. Edward B., 72 Conn. App. 282, 289, 806 A.2d 64 (2002) (“If the first statement actually was coerced in violation of the fifth amendment, however, the second statement is inadmissible ‘unless it can be shown that due to the ‘break in the stream of events’ the taint from the earlier prewaming confession has been removed from the subsequent postwaming confession.”); State v. Evans, 144 Ohio App. 3d 539, 760 N.E.2d 909 (2001); State v. Juarez, 120 N.M. 499, 903 P.2d 241 (Ct. App. 1995).
United States v. Jenkins is directly on point. There, the court held that the suspect’s first Mirandized confession had been coerced. Accordingly, it needed to examine whether that coercion tainted the second Mirandized confession. The court, in concluding the second statement had been tainted and was involuntary, stated as follows:
“Determining whether the taint had dissipated sufficiently is merely another way of asking whether the subsequent confession was, itself, involuntary. This inquiry ‘depends on the inferences as to the continuing effect of the coercive practices which may fairly be drawn from the surrounding circumstances.’ Lyons v. Oklahoma, 322 U.S. 596, 602, 88 L. Ed. 2d 1481, 64 S. Ct. 1208, 1212 (1944) (citation omitted). Specifically, we look to [1] the temporal proximity of the coercive misconduct to the confession, [2] the presence of intervening circumstances which attenuate and dissipate the coercive effects of that misconduct, and, particularly, [3] the purpose and flagrancy of that [prior] misconduct. Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 95 S. Ct. 2254, 2261-62 (1975). As with the initial confession, it is the government’s burden to prove this confession admissible. [422 U.S. at 604].” 938 F.2d at 941.
Similarly, the Tenth Circuit Court of Appeals in United States v. Perdue, 8 F.3d 1455, concluded that the government failed to show that the coercion surrounding the first, albeit un-Mirandized, statement had been sufficiently dissipated so as to make the second Mirandized statement voluntary. The court examined the length of time that passed between the two confessions, the addition of new pressures, and the absence of any meaningful intervening circumstances which would indicate that the second confession was insulated from the effect of all that went before. 8 F.3d at 1467-69. Stated another way, “[t]he later confession will be admissible while the first confession will not ‘only if such a distinction is justified by a sufficiently isolating break in the stream of events.’ ” 8 F.3d at 1467-68.
With these holdings in mind, we observe that according to Sweeney s testimony, Swanigan’s second statement occurred at 1 p.m., approximately 19 hours after his first. As with the first statement, Sweeney and Lanham were again interrogating Swanigan; only Feldman was absent. Since Swanigan had been arrested and incarcerated the evening before, it appears the interrogation again was conducted at the police station, perhaps in the same interview room as the first interrogation. Swanigan repeated the same general facts, including the same ones he had stated incorrectly 19 hours before. Furthermore, there is no evidence of intervening circumstances which would attenuate and dissipate the coercive effects of the evening before except the passage of time, which, when considering an individual with an IQ of 76 who is also susceptible to being overborne by anxiety, may mean little. On the other hand, we do observe that the prior misconduct was not physical nor necessarily “flagrant.”
We conclude that the State has failed to meet its burden of showing the second statement was untainted by the first, i.e., that the second was voluntary as well. See Perdue, 8 F.3d 1455, 1467-68 (same agent who conducted first coercive interrogation present for the second was a factor in finding taint from the first interrogation; same location for both interrogations a factor in finding taint from the first interrogation); Jenkins, 938 F.2d 934, 941 (no significant intervening circumstances which might have purged the taint from the initial coerced confession were brought to court’s attention); United States v. Lee, 699 F.2d 466, 469 (9th Cir. 1982) (the second confession, a virtual repetition of the first, was obtained less than 24 hours after the first confession was elicited; Ninth Circuit held it was not clearly erroneous for district court to conclude that “no intervening event of significance occurred so as to purge the taint of the illegally obtained confession”). Accordingly, the November 1 statement should also have been excluded as evidence at trial.
We reemphasize that a case-by-case evaluation approach is employed to determine whether coercion was impermissibly used in obtaining a confession. State v. Lane, 262 Kan. 373, 385, 940 P.2d 422 (1997). We also emphasize that voluntariness of confessions is determined by a totality of the circumstances, Sanders, 272 Kan. at 452, and that none of the circumstances in the instant case alone make the confession involuntary per se. Finally, we point out that the determination of whether the coercion of one statement taints another is also necessarily fact sensitive. Consequently, a broad reading of our opinion today is expressly discouraged.
Harmless Error Analysis
With our decision to exclude the statements from evidence, the issue becomes whether their admission was harmless or reversible error. In State v. Esquivel-Hernandez, 266 Kan. 821, 825, 975 P.2d 254 (1999), this court stated that the use of an involuntary statement of a criminal defendant is a denial of due process of law, even though there is ample evidence to support the conviction, and found that the harmless error rule did not apply, citing Mincey v. Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978). Only once have our appellate courts cited Esquivel-Hernandez for this same proposition. See Cellier v. State, 28 Kan. App. 2d 508, 516, 18 P.3d 259, rev. denied 271 Kan. 1035 (2001).
In Arizona v. Fulminante, 499 U.S. 279, 310, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991), however, a majority of the United States Supreme Court specifically held that the harmless error rule did apply to the erroneous admission of an involuntary confession. Eight years later the Supreme Court cited its Fulminante decision in Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999), which was released 2 months after our decision in Esquivel-Hemandez. In Neder, the Court reiterated that so-called “structural errors” subject to automatic reversal exist in a very limited class of cases. 527 U.S. at 8. Consequently, until such time as the United States Supreme Court should hold otherwise, we choose to follow its ruling in Fulminante that the harmless error rule does apply to the erroneous admission of an involuntary confession. Any language to the contrary in Esquivel-Hemandez and Cellier is therefore disapproved.
We have stated the harmless error rule in cases involving constitutional concerns as follows: “If this court possesses a firm belief beyond a reasonable doubt that an error of constitutional magnitude had little, if any, likelihood of having changed the result of the trial, it may be declared harmless.” State v. Ewing, 258 Kan. 398, 403, 904 P.2d 962 (1995) (defendant in custody and should have been advised of his rights prior to interrogation, making statement inadmissible); see Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). This court has the power to review the record de novo in order to determine an error’s harmlessness. Fulminante, 499 U.S. at 295.
In the instant case, other than the surveillance video — which the State’s witnesses themselves admitted is too blurry to conclusively determine the robber’s identity — no direct evidence and very little circumstantial evidence places Swanigan at the Kwik Shop the morning of the robbery. Accordingly, we do not possess a firm belief beyond a reasonable doubt that the inclusion of Swanigan’s involuntary statements had little likelihood of changing the result at trial. We reverse and remand for a new trial at which Swanigan’s involuntary statements to the police on October 31 and November 1, 2000, are not admissible.
Issue 2: Did the trial court err by failing to give a jury instruction regarding the voluntariness and truth of Swanigan’s statementsP
With our decision to suppress Swanigan’s statements, this issue is now moot.
The decision of the trial court, and the decision of the Court of Appeals affirming that court, is reversed and the case is remanded for new trial.
McFarland, C.J.: Concurring in the result. | [
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The opinion of the court was delivered by
Allegrucci, J.:
This is an action in mandamus to compel application of the statutory veterans’ preference in the promotions of William Slusher from sergeant to lieutenant and Ralph Sorrell from police officer to sergeant with the City of Leavenworth, Kansas, Police Department (LPD). Slusher and,Sorrell filed a petition for writ of mandamus in the district court alleging that each was denied promotion by LPD in violation of K.S.A. 73-201, a veterans’ preference statute, and seeking an order compelling LPD to promote them to the positions they applied for. The district court dismissed their petition on the grounds that the statute applies only to initial hiring and mandamus is not an appropriate remedy. Slusher and Sorrell appealed. The court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
On a motion to dismiss for failure of the petition to state a claim upon which relief can be granted, the question must be decided from the allegations of the petition. The question is whether, in the light most favorable to petitioners, and with every doubt resolved in their favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate petitioners do not have a claim. Bruggeman v. Schimke, 239 Kan. 245, 247, 718 P.2d 635 (1986).
The following facts were alleged by Slusher and Sorrell in their petition:
Slusher has been employed with the LPD for more than 5 years and has served in the position of sergeant for more than 2 years. He was honorably discharged from the United States Air Force in January 1991, having served during a period of national hostility that confers veterans’ preference status. He qualifies as a veteran under K.S.A. 73-201. He applied for a vacancy for the rank of police lieutenant that was announced in December 2001. Minimum requirements for the position were 5 years of experience with the LPD and 2 years as sergeant, detective, or corporal.
Slusher was the only K.S.A. 73-201 veteran who applied for the position of lieutenant. Sergeant Kathy Tytla was promoted to the position of lieutenant. Tytla is not a veteran.
Greg Baldan is the Personnel Director of the City of Leavenworth. When contacted by Slusher about his being denied the veterans’ preference with regard to the promotion, Baldan responded that the preference applies only to initial hiring.
Sorrell has been employed with the LPD for more than 1 year, has been certified as a police officer for more than 3 years, has a college degree, and has a valid Kansas driver’s license. He was honorably discharged from the United States Army in August 1993, having served during a period of national hostility that confers veterans’ preference status. He qualifies as a veteran under K.S.A. 73-201. He applied for a vacancy for the rank of police sergeant that was announced in February 2002. Minimum requirements for the position were 3 years as a certified police officer and 1 year of experience with the LPD, a high school education or G.E.D. and some undergraduate college courses, and a valid Kansas driver’s license.
Sorrell was the only K.S.A. 73-201 veteran who applied for the position of sergeant. Officer Daniel Nicodemus was promoted to the position of sergeant. Nicodemus is not a veteran.
When contacted by Sorrell about his being denied the veterans’ preference with regard to the promotion, Baldan responded that the preference applies only to initial hiring. His response was reiterated by Lee Doehring, the Chief of Police, and Gary Ortiz, the City Manager.
Appellate review of a district court’s statutory interpretation is a question of law requiring unlimited review. The fundamental rule of statutoiy construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
K.S.A. 73-201 provides in part:
“In grateful recognition of the services, sacrifices and sufferings of persons who served in the army, navy, air force or marine corps of the United States in world war I and world war II, and of persons who have served with the armed forces of the United States during the military, naval and air operations in Korea, Viet Nam or other places under the flags of the United States and the United Nations or under the flag of the United States alone, and have been honorably discharged therefrom, they shall he preferred for appointments and employed to fill positions in every public department and upon all public works of tire state of Kansas, and of the counties and cities of this state, if competent to perform such services; and the person thus preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical or mental disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for; and when any such ex-soldier, sailor, airman or marine shall apply for appointment to any such position, place, or Employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a man or woman of good reputation, and can perform the duties of the position applied for by him, or her, appoint said ex-soldier, sailor, airman or marine to such position, place, or employment . . . .” (Emphasis added.)
The district court concluded that the veterans’ preference of K.S.A. 73-201 applies to initial hiring but not to internal promotions.
Slusher and Sorrell contend that the statute, by defining the scope of veterans’ preference in a variety of terms including “appointments,” “employments,” “employed to fill positions,” and “appointment to any such position, place, or employment,” demonstrates the legislature’s intent that the preference be broadly applied. They cite Jensen v. State Dept. of Labor and Industry, 213 Mont. 84, 90, 689 P.2d 1231 (1984), interpreting that state’s veterans’ preference statute, which provided for a veterans’ preference in “appointment and employment.” Jensen received a veterans’ preference when initially hired by tire Montana Department of Labor and Industry. 213 Mont. at 86. When Jensen applied for the position of manager of the Great Falls Service Office, “[o]nly internal applications were accepted and veteran’s preference, traditionally granted only in initial hire situations, was not considered.” 213 Mont. at 86. Jensen was not chosen to fill the manager position. The Montana Supreme Court concluded that it did not have to determine whether the hiring was an appointment or promotion because the hiring “must be construed as employment.” 213 Mont. at 90. Although the Montana Legislature has now repealed its preference statute, thus manifesting a policy shift, the Montana Supreme Court’s interpretation of the statutory terms “appointment and employment” as including promotion abides.
Respondents in the present case do not challenge K.S.A. 73-201 on constitutional grounds. Instead, they maintain that the plain language of the statute restricts the veterans’ preference to initial hiring. Regardless, they cite Housing Auth. v. Pa. Civil Service Com'n, 556 Pa. 621, 730 A.2d 935 (1999), as standing for the Pennsylvania court’s recognition of constitutional difficulties arising from the application of a veterans’ preference to promotions. The Pennsylvania court expressed the view that a reasonable relation exists between the preference for military service in initial hiring and the proper performance of public duties, but reasoned that experience in the armed services is not probative for promotions because veteran and nonveteran candidates have had the opportunity to develop their skills in the same work environment.
In addition to being irrelevant to any issue before this court, the Pennsylvania court’s reasoning is overly narrow. It fails to take into account circumstances in which the position at issue would be a promotion for one candidate but an initial hiring for another. It also treats the veterans’ preference as if it were merely a matter of a veteran being a desirable employee as a result of his or her military experience, when, in fact, the veterans’ preference is a means of giving credit not only “for the discipline and experience represented by . . . military training,” but also “for the loyalty and public spirit” demonstrated by militaiy service. 51 Pa. Cons. Stat. sec. 7102(a) (2004).
Even less tied to strictly pragmatic considerations is the Kansas preference, which is expressly “[i]n grateful recognition of the services, sacrifices and sufferings of persons who served” in the military. K.S.A. 73-201. In recognition of the time and advantage lost toward the pursuit of a civilian career, the preference helps compensate for the years in uniform during which experience in civil service might otherwise have been acquired.
Respondents also would have the court infer from the Pennsylvania statute expressly treating appointments and promotions as distinct actions, that the Kansas statute’s silence on promotions means that the Kansas Legislature did not intend to include pro motions within its veterans’ preference mandate. Without some indication that the Pennsylvania statute or other similar statutes were known to the Kansas Legislature, which is absent here, the inference is unwarranted.
With regard to the wording of the statute, respondents also cite Dennis v. Bennet, 258 Iowa 664, 140 N.W.2d 123 (1966). Dennis was an action in mandamus to compel the veterans’ preference in the appointment of the chief of a city fire department. The Iowa Supreme Court held that qualified veterans were entitled to preference. The Iowa statute “serves to give preference in all examinations and appointments, other than promotions, to war service veterans.” 258 Iowa at 668. The Iowa court quoted definitions of appointment and promotion from Matter of Daub v. Coupe, 9 App. Div. 2d 260, 265, 193 N.Y.S.2d 47 (1959): “ To appoint is to designate or assign to a position. To promote is to advance or progress to a higher grade, position or degree. Promotion cannot occur until there exists a condition or status from which there can be advancement or progress.’ ” 258 Iowa at 668. According to the Iowa Supreme Court, the definitions mean that “an appointment necessarily precedes promotion and creates the condition upon which a promotion may be effected.” 258 Iowa at 668. Because the fire department chief did not need to be an acting member of the city’s fire department in order to qualify, the court concluded that an appointment rather than a promotion was at issue. 258 Iowa at 668-69.
Respondents also direct the court’s attention to Aquino v. Civil Service Commission, 34 Mass. App. 538, 613 N.E.2d 131 (1993), as another case in which a distinction was drawn between appointment and promotion. The Massachusetts statute applies to the “original appointment to any position in the official service.” 34 Mass. App. at 539. According to the Massachusetts Appeals Court, because the statute “malees no reference to promotions, the well-known maxim expressio unius est exclusio alterius, the expression of one thing is the exclusion of another, applies. [Citations omitted.] The use of the term ‘original appointment’ without any reference to ‘promotion’ implies the exclusion of the latter.” 34 Mass. App. at 541.
Neither the Iowa statute, which excepts promotion, nor the Massachusetts statute, which applies to original appointment, is like K.S.A. 73-201. The Kansas statute does not use the term promotion so as to distinguish it from appointment, or modify appointment with “original” so as to distinguish it from subsequent appointments. Restriction of the term appointment to initial hiring by the other states’ courts, therefore, is not a reason for this court to interpret the Kansas statute in the same way.
The language, “they shall be preferred for appointments and employed to fill positions in every public department and upon all public works” (except that “appointment” originally was singular and became plural in 1907), has been in the Kansas veterans’ preference statute since it was enacted in 1886. See L. 1886, ch. 160, sec. 1; L. 1907, ch. 374, sec. 1. The wars in which eligible veterans served have been changed from time to time from the Civil War to the Spanish-American War and World War I to World War II to combat in Korea and Vietnam. L. 1886, ch. 160, sec. 1; L. 1919, ch. 280, sec. 1; L. 1945, ch. 301, sec. 1; L. 1951, ch. 429, sec. 1; L. 1970, ch. 306, sec. 1. The services have been expanded to include the Marine Corps, American Red Cross nurse corps, and Air Force, in addition to the Army and Navy. L. 1945, ch. 301, secs. 1, 11; L. 1970, ch. 306, sec. 1. And the nature of a violation has been changed from criminal to civil. Cf. L. 1901, ch. 186, sec. 2; L. 1907, ch. 374, sec. 1. But the charge that veterans shall be preferred for appointments and employed to fill positions in public service has remained the same.
A case decided under an early version of the statute demonstrates that it was not then interpreted to apply only to the initial hiring but instead was given a somewhat broader construction. In Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 1034 (1904), the court ruled in favor of Goodrich, a veteran, over Mitchell, who was not a veteran. Both men applied to be superintendent of the electric light plant of Topeka. Goodrich was seeking reappointment at the end of a 2-year term in the office. Mitchell was seeking-an initial appointment.
Of the cases cited by the parties, we find only Jensen, the Montana case, helpful in our consideration of the claims of Slusher and Sorrell. The Montana preference statute, like K.S.A. 73-201, expressly applied to appointment and employment but did not exclude promotion. Jensen, like Goodrich, sought a position within the organization he already worked for and was favored over non-veteran candidates. Like the Montana court, we are persuaded by the argument that the wording of our preference statute is more inclusive than exclusive and that the legislature’s use of general terms demonstrates no intent to restrict the veterans’ preference to initial hiring. In the absence of limiting statutory language, respondents’ argument that the plain language of the statute excludes promotions from the preference is unconvincing. If the legislature had wanted to restrict preference to initial hiring, it certainly knew how to say so and would have done so. We conclude, therefore, that K.S.A. 73-201 applies to internal promotions as well as to initial hiring.
The second ground on which the district court dismissed Slusher and Sorrell’s petition was procedural. The district court concluded that mandamus is not an appropriate remedy in this case because the application of the veterans’ preference under K.S.A. 73-201 involves the exercise of discretionary authority and because no exception for bad faith applies in the circumstances.
On appeal, Slusher and Sorrell contend that their promotions are mandatory rather than discretionary under the veterans’ preference statute and, in the alternative, that mandamus is appropriate because respondents acted in bad faith in refusing to award the promotions to them. Respondents argue that K.S.A. 73-201 invests the hiring authority with discretion and that the exercise of discretion cannot be fettered by a writ of mandamus.
K.S.A. 60-801 provides: “Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.”
Numerous prior decisions have recognized mandamus as a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law. Wilson v. Sebelius, 276 Kan. 87, 90, 72 P.3d 553 (2003). Petitioners state that what they are seeking is an expeditious and authoritative interpretation of K.S.A. 73-201, which will serve as the basis for compelling respondents to promote petitioners to the positions they applied for.
An authoritative interpretation of K.S.A. 73-201 has been obtained. Numerous prior decisions have recognized mandamus as a proper remedy where the essential purpose of the proceeding is to obtain an authoritative interpretation of the law for the guidance of public officials in their administration of the public business, notwithstanding the fact that there also exists an adequate remedy at law. Wilson v. Sebelius, 276 Kan. 87, 90, 72 P.3d 553 (2003).
Mandamus also is a proceeding used for compelling a public officer to perform a clearly defined duty, one imposed by law and not involving the exercise of discretion. Sedlak v. Dick, 256 Kan. 779, 785, 887 P.2d 1119 (1995). This appeal came to the court from the trial court’s order granting respondents’ motion and dismissing the petition of Slusher and Sorrell for failure to state a claim upon which relief may be granted under K.S.A. 60-212(b)(6). Although the respondents had filed their answer some months before filing their motion to dismiss, they sought dismissal of the petition for failure to state a claim rather than judgment on the pleadings or summary judgment, which would have included consideration of respondents’ answer under K.S.A. 60-212(c) and matters outside the pleadings under K.S.A. 2004 Supp. 60-256. As respondents’ urged, the trial court treated their motion as “a motion to dismiss” “to be determined on the allegations of the petition.” On a motion to dismiss for failure to state a claim upon which relief may be granted, both trial and appellate courts consider only the well-pleaded facts of the petition and accept them as true. Goldbarth v. Kansas State Board of Regents, 269 Kan. 881, 882, 885-86, 9 P.3d 1251 (2000).
In addition to the proper veterans’ status, K.S.A. 73-201 places two conditions on eligibility for the veterans’ preference — competence to perform the job duties and good reputation. Each petitioner alleged that he enjoys good reputation and that he is com petent and capable of performing the duties of the position he sought. Thus, petitioners’ competence and good reputation are established for the purpose of respondents’ motion to dismiss.
The trial court concluded that mandamus is not an appropriate remedy in this case because application of K.S.A. 73-201 involves the exercise of discretionary authority. In the current procedural posture of this case, however, no discretion is involved and, thus, mandamus is not inappropriate.
The district court’s dismissal of Slusher and Sorrell’s petition for failure to state a claim upon which relief may be granted is reversed, and the case is remanded for further proceedings consistent with this opinion.
Gernon, J., not participating. | [
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On October 31, 2003, this court suspended the respondent, Terence A. Lober, from tire practice of law in Kansas for a period of 1 year. See In re Lober, 276 Kan. 633, 78 P.3d 442 (2003). Before reinstatement, die respondent was required to pay the costs of the disciplinary action, furnish proof of compliance with Rule 218 (2004 Kan. Ct. R. Annot. 301), and complete all CLE requirements.
The Disciplinary Administrator has filed a report verifying that the respondent has fully complied with the conditions imposed upon him by tiiis court.
This court, having reviewed the files and recommendation of the office of the Disciplinary Administrator, finds that the respondent, Terence A. Lober, should be reinstated to tire practice of law in the state of Kansas.
It Is Therefore Ordered that the respondent be reinstated to the practice of law in the state of Kansas as of the date of this order.
It Is Further Ordered drat this order shall be published in the official Kansas Reports.
Dated this 11th day of March, 2005. | [
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The opinion of the court was delivered by
Larson, J.:
This first impression case in Kansas reviews a decision by the Court of Appeals, State v. Scott, 24 Kan. App. 2d 480, 947 P.2d 466 (1997), holding the public access provisions of the Kansas Sex Offender Registration Act (KSORA), K.S.A. 22-4901 et seq., constitute cruel and unusual punishment. Clifford Allen Scott was convicted of attempted aggravated sexual battery and placed on probation. Scott appealed the trial court’s order that he register pursuant to the provisions of the KSORA. The Court of Appeals determined that in Scott’s case the public access provisions of the KSORA were cruel and unusual and ordered that his registration should not be open to inspection by the public or subject to the Kansas Open Records Act, K.S.A. 45-215 et seq.
Factual statement
In July 1995, Scott brought alcohol to the apartment of a former co-employee (J.R.). The two drank and watched T.V. for awhile, until J.R. went to her room to go to bed, leaving Scott to sleep on the sofa. J.R. awoke to find Scott in her room asking to have sex with her and attempting to fondle her.
J.R. repeatedly told Scott not to touch her and that she did not want to have sex with him. Scott persisted and attempted to remove J.R.’s nightclothes. When J.R. resisted Scott’s advances, he dragged her from her room and started beating, kicking, and stomping her.
The police were notified. The two officers dispatched to J.R.’s apartment found her with a bloody nose and dressed in a robe spotted with blood. J.R. stated Scott had hit her; fondled her, and requested sex. J.R. went to an emergency room where she was diagnosed with numerous fractured ribs. J.R. also suffered bruises and pain to her face, arms, and legs.
Scott was charged with aggravated sexual battery, K.S.A. 21-3518(a)(1), a severity level 5, person felony, and aggravated battery, K.S.A. 21-3414(a)(l)(C), a severity level 7, person felony. J.R. appeared in court and testified regarding Scott’s attack.
Scott ultimately entered into a plea agreement whereby he pled no contest to an amended count of attempted aggravated sexual battery, K.S.A. 21-3301 and K.S.A. 21-3518(a)(l), a severity level 7, person felony. The State dismissed the aggravated battery charge. Before accepting Scott’s plea, the court informed him he would be required to register as a sex offender. Scott acknowledged he understood this.
At the sentencing hearing, J.R. made the following statement:
“I am addressing this plea to the Shawnee County Courthouse ... to let you know that I’m not at all happy or satisfied with the case, the way it has been handled. The case against Scott Clifford, the defendant, has not been handled with more interest and more seriousness toward me. I’m still suffering because of the injury I received from the crime that Scott Clifford inflicted on me. I lost wages, lost my confidence to trust anyone. I lost — excuse me.
“THE COURT: Go ahead.
“[J.R.]: I can’t read it.
“THE COURT: Okay. Counsel, do you want to just read that into the record?
“MS. BRUMBELOE: She says, \ . . lost peace of mind. I wake up duringthe night with a cold sweat and have a hard time going back to sleep. I wake up during the night with the nightmare feeling that someone is standing beside my bed. Scott Clifford came to my bedroom, started putting his filthy hand on me and tried to force himself on me and tried to have sex with me and when I tried to tell him no, he started attacking me in a brutal way. This man turned on me like a wild animal, and after what he did to me, he tried to say he doesn’t remember anything and he is sorry. Well, sorry doesn’t work for me. What happened to me is real and painful. I would like him to pay to the maximum of time and to go in prison so he will not hurt any woman or anybody. This type of crime against any women or children will not be tolerated anymore, and I would like the system to make a serious commitment to take steps for a better future and to punish the criminal to the fullest of time. Thank you.”
Scott was sentenced to 14 months in the custody of the Secretary of Corrections. Yet, because he fell within presumptive probation, he was placed on probation for 24 months. The court indicated the legislature had severely limited the court’s discretion to make a different sentence, stated it sympathized with J.R.’s request for Scott’s imprisonment, and declared Scott’s probation would be rigorously supervised. Despite Scott’s constitutional objections, the court ordered him to register as a sex offender under the KSORA.
Scott appealed the order for his registration as a sex offender under the KSORA, alleging the public disclosure provisions were unconstitutional. Scott’s arguments on appeal included only his contentions that the registration and disclosure requirement constituted double jeopardy and cruel and unusual punishment. Scott has failed to make any record concerning the effect registration and the public disclosure has had upon him, and we are limited to the record before us.
The Court of Appeals rejected Scott’s double jeopardy argument but decided the public access element of the KSORA violated the prohibition against cruel or unusual punishment in § 9 of the Kansas Constitution Bill of Rights.
We granted the State’s petition for review. Scott did not request review of the Court of Appeal’s determination that the registration provision did not violate the prohibition against double jeopardy. Therefore, our analysis is limited to the single issue of whether the KSORA violates the constitutional restrictions prohibiting cruel and unusual punishment. We hold it does not.
Analysis
The constitutionality of a statute is a question of law, over which we exercise an unlimited standard of review. State v. Myers, 260 Kan. 669, 676, 923 P.2d 1024 (1996). When reviewing the constitutionality of a statute, we must keep in mind the following:
“The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond substantial doubt.” State v. Bryan, 259 Kan. 143, Syl. ¶ 1, 910 P.2d 212 (1996).
Scott has asserted that the KSORA constitutes cruel or unusual punishment as applied to him. K.S.A. 22-4904 of the KSORA provides:
“(a) Within 15 days of the sex offender coming into any county in which the sex offender resides or is temporarily domiciled for more than 15 days, the sex offender shall register with the sheriff of the county.”
K.S.A. 22-4907 requires that the registration include the offender’s name, date of birth, offense or offenses committed, date of conviction or convictions, places of conviction, photograph, fingerprints, and social security number. The provisions critical for this appeal are those permitting public access of the registration information, which are set forth in K.S.A. 22-4909 as follows:
“The statements or any other information required by this act shall be open to inspection in the sheriff’s office by the public and specifically are subject to the provisions of the Kansas open records act, K.S.A. 45-215 et seq., and amendments thereto.”
The Eighth Amendment to the United States Constitution, applicable to the states pursuant to the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Section 9 of the Kansas Constitution Bill of Rights declares: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.”
Although discussing the prohibition against cruel and unusual punishments in the United States Constitution, the Court of Appeals only specifically held that the public disclosure provisions of the KSORA violated § 9 of the Kansas Constitution Bill of Rights. We will, however, decide whether the KSORA violates the cruel and unusual punishment provisions of both the Kansas and the United States Constitutions.
Although we have the right to interpret our Kansas Constitution in a manner different than the United States Constitution has been construed, State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993), we have not traditionally done so. See Murphy v. Nelson, 260 Kan. 589, 597, 921 P.2d 1225 (1996). The wording of both clauses at issue is nearly identical, and we will look to constructions of both provisions in reaching our conclusions herein.
Although similar laws in other states have not been held to be punitive in nature, we expressly held in State v. Myers, 260 Kan. at 699, that despite the lack of punitive purpose on the part of the legislature in enacting the KSORA, the repercussions under the Act due to the public access provisions are great enough to be considered punishment for purposes of an ex post facto analysis. We are not here faced with an ex post facto situation, and logical arguments could be made to support a different result in this case if Scott like Myers had committed his crime before the enactment of the KSORA. However, we will not attempt to alter the Myers conclusion as to the punitive effect of the KSORA. With this threshold requirement established, we now must decide -whether the punitive nature of the public access provisions of the KSORA amounts to cruel or unusual punishment.
In State v. Coutcher, 198 Kan. 282, 288, 424 P.2d 865 (1967), we quoted Weems v. United States, 217 U.S. 349, 368, 54 L. Ed. 793, 30 S. Ct. 544 (1910): “ What constitutes a cruel and unusual punishment has not been exactly decided. It has been said that ordinarily the terms imply something inhuman and barbarous, torture and the like/ ” In State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), we said: “Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.”
Chief Justice Warren, speaking for the United States Supreme Court, addressed the nature of cruel and unusual punishment in Trop v. Dulles, 356 U.S. 86, 99-101, 2 L. Ed. 2d 630, 78 S. Ct. 590 (1958):
“The exact scope of the constitutional phrase ‘cruel and unusual’ has not been detailed by this Court. But the basic policy reflected in these words is firmly established in the Anglo-American tradition of criminal justice. The phrase in our Constitution was taken directly from the English Declaration of Rights of 1688, and the principle it represents can be traced back to the Magna Carta. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards. Fines, imprisonment and even execution may be imposed depending upon the enormity of the crime, but any technique outside the bounds of these traditional penalties is constitutionally suspect. This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. [Citing Weems, 217 U.S. 349.] The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”
In deciding the KSOHA constituted cruel or unusual punishment, the Court of Appeals gave consideration to whether the public access provisions inflicted injury to the reputational interests of an offender. The court stated these reputational interests were identified in E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997), and defined as
“ ‘the burdens of isolation, harassment, loss of opportunities, and the myriad of more subtle ways in which one is treated differently by virtue of being known as a potentially dangerous sex offender. The other type of indirect effect is exposure to an increased risk of private violence that can result in damage to one’s property or injury to one’s person.’ ” 24 Kan. at 484.
Although reputational interests were identified in Vemiero, they were not considered sufficient to even make New Jersey s Megan’s Law punitive. Each was discussed and rejected. The Vemiero opinion ruled:
“ ‘[Defendant’s] claim is based, not upon any challenge to the State’s ability to restrict his freedom of action in a sphere contended to be ‘private’ but instead on a claim that the State may not publicize a record of an official act such as an arrest. None of our substantive privacy decisions hold this or anything like this, and we decline to enlarge them in this manner.’ [Quoting Paul v. Davis, 424 U.S. 693, 713, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976).]
“[N]either does New Jersey’s publication (through notification) of registrants’ convictions and findings of dangerousness implicate any interest of fundamental constitutional magnitude.” 119 F.3d at 1103.
The fact a punishment may injure the reputational interests of an offender does not thereby render the punishment cruel or unusual and is not by itself an element to be considered when deciding whether the punishment is unconstitutional. Rather, we consider whether the method and effect of the punishment is itself inhumane, inherently cruel, shocking, unacceptable, or offends human dignity. The Court of Appeals erroneously included injury to reputational interests among the tests for declaring a punitive statute cruel or unusual. Although not argued by the parties, we note that K.S.A. 21-4006 makes malicious exposing of a paroled or discharged person a class B nonperson misdemeanor.
The Court of Appeals next applied the three-prong test set forth in Freeman, 223 Kan. at 367, designed to determine whether the length of a sentence constitutes cruel or unusual punishment, to the facts of the present case. The applicability of the Freeman test to Scott’s case, however, is tenuous. No Kansas case has applied this test in circumstances where the length or consecutive nature of sentences were not at issue. In fact, in State v. Scherzer, 254 Kan. 926, 939, 869 P.2d 729 (1994), where the place of confinement required by K.S.A. 1992 Supp. 21-3405b was claimed to be unconstitutional by comparison with the punishments imposed for more serious offenses, we rejected the contention and said:
“The concern addressed in Freeman is disparity in the length of the sentence, not the place of serving the sentence. Cruel and unusual punishment involves punishment that shocks the conscience or ‘which seems inhumane or barbarous.’ The legislature is the branch of government entrusted with the power to set the punishment for a crime. State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). The fact the legislature chose to allow house arrest for aggravated vehicular homicide offenders, and not for vehicular battery offenders, does not rise to the level of cruel and unusual punishment.”
By this holding we appear to have distanced ourself from, if not outright rejected, the application of the Freeman test when the length of a sentence was not being challenged.
The Freeman test was based upon the factors set forth by the United States Supreme Court in Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983). The proportionality test, one of the factors applied in Solem, however, was discredited by a majority of the United States Supreme Court in Harmelin v. Michigan, 501 U.S. 957, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (1991). Although only two members advocated outright abandonment of the test, three concurring Justices, Justice Kennedy, joined by Justice O’Connor and Justice Souter, concluded:
“This Court’s decisions recognize that the Eighth Amendment’s Cruel and Unusual Punishments Clause encompasses a narrow proportionality principle that applies to noncaptial sentences. See, e.g., Weems v. United States, 217 U.S. 349, 371; Rummel v. Estelle, 445 U.S. 263, 271-274, and n. 11; Hutto v. Davis, 454 U.S. 370, 374, and n. 3; Solem v. Helm, 463 U.S. 277. Although these decisions have not been totally clear or consistent, close analysis yields some common principles that give content to the uses and limits of proportionality review. First, the fixing of prison terms for specific crimes involves a substantial penological judgment that, as a general matter, is properly within the province of the legislature, and reviewing courts should grant substantial deference to legislative determinations. Second, there are a variety of legitimate penological schemes based on theories of retribution, deterrence, incapacitation, and rehabilitation, and the Eighth Amendment does not mandate adoption of any one such scheme. Third, marked divergences both in sentencing theories and the length of prescribed prison terms are the inevitable, often beneficial, result of the federal structure, and differing attitudes and perceptions of local conditions may yield different, yet rational, conclusions regarding the appropriate length of terms for particular crimes. Fourth, proportionality review by federal courts should be informed by objective factors to the maximum extent possible, and the relative lack of objective standards concerning length, as opposed to type, of sentence has resulted in few successful proportionality challenges outside the capital, punishment context. Finally, the Eighth Amendment does not require strict proportionality between crime and sentence, but rather forbids only extreme sentences that are grossly disproportionate to the crime.” 501 U.S. at 959.
While there may still be instances where the Freeman test should be applied, we will not apply it precisely here where the method of punishment, rather than the length of a sentence, is challenged as cruel or unusual. Neither this court nor the Supreme Court has applied such test outside of the length of sentence context. See, e.g., Trap, 356 U.S. 86. We may look to some of the Freeman factors in our analysis, but. our basic question is whether the public access provisions of the KSORA render punishment so barbarous and contrary to human dignity that it shocks our conscience.
Scott committed a very violent crime after an acquaintance refused to have sex with him. He claims not to even remember his actions. The trial court clearly desired to impose a prison term, but Scott’s criminal history score designated the presumptive probation section of the guidelines grid. The fact that for some criminals the crime which Scott committed will result in probation should not detract from the legislative decision that sex offenders who are permitted to remain at large in society should be required to register in order to better protect the public.
Furthermore, the legislature has reached the conclusion that sex offenders in general pose a greater risk of reoffending such that the public should have the opportunity to defend themselves from this danger. Although there may be cases where the degree of danger seems so minimal that imposition of the public disclosure provisions would seem unduly harsh, the facts of the present case do not clearly support this conclusion. It is not for this court to overrule the legislative determination of the danger posed by sex offenders, particularly where the record, as in this case, does not warrant a finding that the offender poses no danger to society.
In determining whether the statute is cruel or unusual, we also consider the lack of penological purpose in the KSORA. In Myers, we clearly found there simply was no legislative purpose or intent to ex post factually punish sex offenders under the KSORA. 260 Kan. at 681. We deemed the statute unconstitutional as applied to offenses which occurred prior to the enactment of the KSORA because “[t]he unrestricted public access given to the sex offender registry is excessive and goes beyond that necessary to promote public safety.” 260 Kan. at 699. We must remember, however, that the burden imposed by a statute which operates retroactively so as to violate the prohibition against ex post facto laws may be much less pronounced than the onerous nature of a burden which would be imposed by a cruel or unusual punishment.
While it is troublesome that there is no differentiation in Kansas among the registration and public access provisions for various sex offenses, this, in and of itself, does not require a finding that the KSORA constitutes cruel and unusual punishment. We stated in Myers:
“Public access to sex offender registration is a matter of legislative public policy. Although we defer to the legislature on policy matters, we must, however, exercise our duty of analysis when ex post facto claims impact legislative policy. Would-be sex offenders have been on notice since April 14, 1994, when KSORA became law, that if they commit certain crimes they will be subject to public disclosure under K.S.A. 22-4909.” 260 Kan. at 700.
Here, Scott was specifically informed before he entered his plea that he would be required to register under the KSORA. This is clearly different from Myers.
It is clearly the legislature’s role to specify punishment. State v. Reed, 248 Kan. 792, 798, 811 P.2d 1163 (1991). The legislature also has the right to determine that sex offenders pose a unique threat to society such that they are subject to registration and public disclosure requirements when other types of offenders are not. The legislature need not extend such requirements to all classes of offenders which may pose some danger to society. See In re Care & Treatment of Hay, 263 Kan. 822, 833, 953 P.2d 666 (1998).
In reaching our conclusion that the KSORA does not inflict cruel or unusual punishment upon offenders, we have examined the recently amended sex offender registration acts of our sister states. In order to comply with the requirements of 42 U.S.C. § 14071 (1994), most states amended their registration laws in 1997 and now provide for much greater public access than existed when we decided State v. Myers over 2 years ago. Many other states now allow broad public access to sex offender registration information similar to that permitted in Kansas. See, e.g., Alaska Stat. § 12.63.010 et seq. (1996); Colo. Rev. Stat. § 18-3-412.5 (1997 Supp.); Fla. Stat. § 944.606 (1997); Hawaii Rev. Stat. § 846E-1 et seq. (1997 Supp.); Iowa Code § 692A.1 et seq. (1998 Supp.); Mass. Gen. L. ch. 6, § 178C et seq. (1996); Mich. Comp. Laws Ann. § 28.721 et seq. (West 1998 Supp.); N.D. Cent. Code § 12.1-32-15 (1997); Tenn. Code Ann. § 40-39-101 etseq. (1997). Virtually every state now permits some public access, and all require sex offenders to register.
Furthermore, our research has revealed no cases which have found that public notification laws constitute cruel or unusual punishment, although several courts have considered the issue. See, e.g., Alan A. v. Verniero, 970 F. Supp. 1153 (D.N.J. 1997); Doe v. Kelley, 961 F. Supp. 1105 (W.D. Mich. 1997); John Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995).
Statements from various courts considering the punitive nature of public access and disclosure laws support the conclusion that the KSORA does not amount to cruel or unusual punishment. In John Doe v. Poritz, the New Jersey Supreme Court held its disclosure statute to be constitutional and noted:
"To rule otherwise is to find that society is unable to protect itself from sexual predators by adopting the simple remedy of informing the public of their presence. That the remedy has a potentially severe effect arises from no fault of government, or of society, but rather from the nature of the remedy and the problem; it is an unavoidable consequence of the compelling necessity to design a remedy.
“We are satisfied that this statute, rationally and carefully addressed to a pressing societal problem, is not what those who drafted the Constitution had in mind as an abuse of government’s power to punish. What government faced here was a difficult problem, a question of policy, and it understandably decided that public safety was more important than the potential for unfair, and even severe, impact on those who had previously committed sex offenses.” 142 N.J. at 109-10.
In Russell v. Gregoire, 124 F.3d 1079, 1091-92 (9th Cir. 1997), the 9th Circuit addressed allegations that the public disclosure provisions equated to historic shaming punishments:
“Although historical punishments did notify the community and humiliate the offender, an adequate historical analysis is not that simple. . . . History does not tell us whether this sort of notification ought to be regarded as punishment. At best, we can draw an analogy between the Act and the punishments of yesteryear. That analogy is not unassailable, however. Historical shaming punishments like whipping, pillory, and branding generally required the physical participation of the offender, and typically required a direct confrontation between the offender and members of the public. As the Third Circuit recently stated: ‘Public shaming, humiliation and banishment all involve more than the dissemination of information. . . . [T]hese colonial practices inflicted punishment because they either physically held the person up before his or her fellow citizens for shaming or physically removed him or her from the community.’ E.B. v. Verniero, 119 F.3d 1077, 1099-1100 (3d Cir. 1997). Put another way, ‘the potential ostracism and opprobrium that may result from [notification] is not inevitable, as it was with the person whipped, pilloried or branded in public.’ Poritz, 931 F. Supp. at 1217. More importantly, the Washington law is not intended to be punitive — it has protective purposes — while shaming punishments ‘were intended to and did visit society’s wrath directly upon the offender.’ Id.
“Other historical analogies are also instructive. It is at least as appropriate to compare the notification law to ‘wanted’ posters and warnings about escaped prisoners or other dangerous persons — practices that have not been regarded as punishment, though they disclose essentially the same information, may rouse public excitement, and may carry a greater risk of vigilantism.
“This discussion reveals the perils of using historical parallels to determine whether a sanction is punishment. True, punishment in the past often relied on humiliation. But humiliation alone does not constitute punishment. A law imposing punishment has other ingredients — most importantly, an intent to punish. See [United States v. Ursery, 518 U.S. 267, 135 L. Ed. 2d 549, 116 S.Ct. 2135 (1996)].”
Although the 9th Circuit held the Washington statute to be non-punitive in part because the disclosure provisions were narrowly limited, the court did recognize that “[t]he information collected and disseminated by the Washington statute is already fully available to the public and is not constitutionally protected.” Russell v. Gregoire, 124 F.3d at 1094.
The court in Alan A. v. Vemiero, stated:
“The humiliation and shame felt by the offender originates in the underlying crimes committed, not in the notification procedure or in the reaction of the public to such conduct. See Doe v. Kelley, 961 F. Supp. 1105, 1110 (W.D. Mich. 1997) (“Unlike historical uses of branding, shaming and banishment, the notification provisions do not affirmatively impose any suffering, restraint or obligation on the offender”). Although ostracism may be a possible consequence of notification, that is not the intended purpose of Megan’s Law. It is simply result-oriented sophistry to argue the Act was designed or implemented to promote ostracism. If ostracism occurs, it is the direct, foreseeable result of the abhorrent conduct of an offender.
“As well, there are numerous ‘critical, dispositive differences’ between community notification and the ‘public shaming’ punishments of the colonial era. [Citation omitted.] Unlike Megan’s Law, the historical punishment of public shaming lacked a remedial purpose and served solely to punish an individual through degradation. Historic shaming punishment was widespread as notification was made to the whole of society. Megan’s Law, in contrast, is tailored to limit notification, if it occurs at all, to protect those most vulnerable and ‘likely to encounter the offender.’ [Citation omitted.] Finally, the effects of the historical shaming punishment were inevitable as they were ‘an integral part of the sentence.’ [Citation omitted.] The repercussions of Megan’s Law, however, are indirect consequences not part of the Act itself. ‘Megan’s Law is not a lust for retribution; it is a measured attempt to achieve remedial with attendant deterrent goals.’ [W.P. v. Poritz, 931 F. Supp. 1199, 1217 (D.N.J. 1996).] Although violence against an offender is not tolerable, the offender should not, and cannot, expect community approval.” 970 F. Supp. at 1175.
The Alan A. court also declared:
“Megan’s Law is a remedial measure designed to protect society, not to brand or banish. The notification that occurs is calibrated to the offender’s risk of re-offense through a series of procedures. Any stigma associated with having a criminal record, comes from the commission of the crime itself, not from the notification imposed through the Act.” 970 F. Supp. at 1193.
Although numerous law review articles have been examined, few contain much comment regarding whether such public notification acts constitute cruel or unusual punishment. Somewhat helpful is Comment, California’s Sex Offender Notification Statute: A Constitutional Analysis, 33 San Diego L. Rev. 1195, 1216-21 (1996), which concludes that a California court is unlikely to invalidate California’s notification statute on grounds of cruel and unusual punishment, after recognizing the legislative prerogative, questioning the disproportionality as applied only to sex offenders, and noting that enactment of numerous notification statutes may constitute an “evolving standard.”
Simeon, Schopf, “Megan’s Law’’: Community Notification and the Constitution, 29 Columbia Journal of Law and Social Problems 117, 131-33 (1995), writes:
“[T]he purpose of ‘Megan’s Law’ is to facilitate the protection of the community and its children. . . . The goal of the law is not to make life miserable for the released offender, but to protect the vulnerable from those most likely to commit violent crimes. Given the standard established by the Supreme Court in Trap c, Dulles, [356 U.S. 86], ‘Megan’s Law’ would not be considered penal in its nature. Community notification was enacted, ‘not to punish, but to accomplish some other legitimate governmental purpose.’ . . .
“Even assuming that a court found the community notification provision to be a punishment, it would not violate the Eighth Amendment unless it were deemed ‘cruel and unusual.’ . . .
“It could be argued that the stigma associated with public notification places it in the category of excessive punishment. However, the Supreme Court’s decision in Harmelin v. Michigan, [501 U.S. 957 (1991)] suggests that this argument is not likely to succeed. ‘The Harmelin plurality recognized that reviewing courts should grant substantial deference to the authority of legislatures to determine the proper types and limits of punishments for crimes. Furthermore, the Court noted that the Eighth Amendment does not mandate strict proportionality between crime and sentence but rather “forbids extreme sentences that are grossly disproportionate to the crime.” A statute providing for the release of information regarding only the most dangerous criminals promotes the important purpose of notifying the public of their presence while still protecting the privacy of those willing to undergo treatment.’ ” (Quoting Note, Sex Offender Registration Acts: An Added Dimension to the War on Crime, 28 Ga. L. Rev. 729, 756 [1994].)
In light of the foregoing and despite the availability of Scott’s registration information imposed by the KSORA, we hold the legislature did not inflict a cruel or unusual punishment upon Scott by permitting public access to his registration information. The legislature has determined it is necessary for public safety to allow the public access to this collected information. Additionally, offenders have been placed on notice that they would be subject to the public disclosure provisions of the KSORA. Due to the non-punitive intent and the concern for public safety in the KSORA, as well as the legislature’s prerogative to set punishment for criminals, we do not see the public access provisions as so inhumane as to constitute cruel or unusual punishment, particularly where the allegedly injurious consequences of such access are due solely to the offenders’ own criminal conduct.
In his supplemental brief to this court, Scott attempts to raise for the first time questions as to whether 1997 amendments to the KSORA should apply to him and whether the absence of any mechanism for individualized preregistration or prenotification risk assessment implicates due process and privacy concerns. We make no comment on these issues and adheré to our rule that when constitutional grounds are asserted for the first time on appeal, they are not properly before us. State v. Myers, 260 Kan. at 701; State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993). Our holding is limited to whether the registration and public access provisions of the KSORA constitute cruel or unusual punishment as to Scott under the Eighth Amendment to the United States Constitution or § 9 of the Kansas Constitution Bill of Rights.
Under the facts of this case, the punitive effect of the registration and notification provisions of the KSORA resulting from an interest in public safety are not so disproportionate to Scott’s violent, sexually motivated crime that such registration and public access is deemed inhumane, shocking, barbarous, or contrary to fundamental notions of human dignity so as to constitute cruel and unusual punishment.
The Court of Appeals is affirmed as to its decision that the KSORA does not constitute double jeopardy. The Court of Appeals is reversed in its decision that the KSORA constitutes cruel or unusual punishment in violation of the United States and Kansas Constitutions. The district court is affirmed. | [
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The opinion of the court was delivered by
McFarland, C.J.:
The district court entered an order suspending Elliott Thurmond’s child support obligation during his period of incarceration in the federal penal system for two convictions of bank robbery. Kathy Thurmond, respondent’s ex-wife, appeals therefrom. The single issue before us is whether the incarceration of a parent, standing alone, is legal justification for the suspension or modification of that parent’s child support obligation as previously judicially determined pursuant to the Kansas Child Support Guidelines. Supreme Court Administrative Order No. 107 (1997 Kan. Ct. R. Annot. 89). This question of law is one of first impression in Kansas.
In a divorce action, K.S.A. 1997 Supp. 60-1610 allows the district court to “make provisions for the support and education of the minor children.” Further,
“the court may modify or change any prior order, including any order issued in a title IV-D case, within three years of the date of the original order or a modification order, when a material change in circumstances is shown, irrespective of the present domicile of the child or the parents. If more than three years has passed since the date of the original order or modification order, a material change in circumstances need not be shown. The court may make a modification of child support retroactive to a date at least one month after the date that the motion to modify was filed with the court.”
The Kansas Supreme Court was given the mandate in K.S.A. 20-165 to adopt rules establishing guidelines for the amount of child support to be ordered in any action in this state and has done so. The Child Support Advisory Committee, appointed by the Supreme Court, reviews the statewide child support guidelines, solicits public input regarding the guidelines, and makes recommendations to address new federal mandates such as the Family Support Act of 1988 (Pub. L. No. 100-485,102 Stat. 2343 [codified in scattered sections of 42 U.S.C.]).
The Kansas Child Support Guidelines are the basis for establishing and reviewing child support orders in the district courts in Kansas. Judges and hearing officers must follow the guidelines. Child support obligations are calculated by completing the Child Support Worksheets. Kansas Child Support Guidelines, § I (1997 Kan. Ct. R. Annot. 89). Use of the guidelines is mandatory and failure to follow the guidelines is reversible error. In re Marriage of Schwein, 17 Kan. App. 2d 498, Syl. ¶ 5, 839 P.2d 541 (1992); In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, Syl. ¶ 4, 809 P.2d 1251 (1991). Any deviation from the amount of child support determined by the use of the guidelines must be justified by written findings in the journal entry. Schwein, 17 Kan. App. 2d at 511; Schletzbaum, 15 Kan. App. 2d at 507. Failure to justify deviations by written findings is reversible error. In re Marriage of Emerson, 18 Kan. App. 2d 277, 279, 850 P.2d 942 (1993).
The Kansas Child Support Guidelines § VI (1997 Kan. Ct. R. Annot. 105-06) provide in pertinent part:
“Courts have continuing jurisdiction to modify child support orders to advance the welfare of the child when there is a material change in circumstance. In addition to changes of circumstance, which have traditionally been considered by courts, any of the following constitute a material change of circumstance to warrant judicial review of existing support orders:
“A. Change in financial circumstances of the parents or the guidelines which would increase or decrease by 10% or more die Net Parental Child Support Obligation shown on Line D.9. of the worksheet.”
As initially stated, the sole issue on appeal is whether the incarceration of a parent, standing alone, is legal justification for the suspension or modification of that parent’s child support obligation as previously judicially determined pursuant to the Kansas Child Support Guidelines. As this is a question of law, our scope of review is unlimited. Farris v. McKune, 259 Kan. 181, Syl. ¶ 1, 911 P.2d 177 (1996). See also Scruggs v. Chandlee, 20 Kan. App. 2d 956, Syl. ¶ 1, 894 P.2d 239 (1995) (“Interpretation of the child support guidelines is a question of law; therefore, this court’s standard of review is de novo.”).
Only three Kansas cases have touched even peripherally on the issue before us.
In In re Marriage of Johnson, 24 Kan. App. 2d 631, 950 P.2d 267 (1997), the father was earning between $30,000 and $33,000 annually as an employee at Exide Battery Corporation. The father had been employed at Exide for about 6V2 years. He was ordered to provide health insurance and to pay $231 per month in child support. Three years after this support order, the father was terminated from Exide because he tested positive for marijuana. There were no criminal charges filed nor was the father incarcerated for this illegal conduct. Two days later, the father found a job paying $6 per hour. Approximately 1 month later, the father took a better paying job. Nonetheless, he earned about half the amount he was making at Exide.
The father filed a motion to modify his child support obligation based on his reduction in income. The mother opposed the motion, arguing that the father’s voluntary conduct caused his reduction in income and, therefore, his previous income should be imputed to him in calculating the amount of child support. The district court disagreed, finding that a significant change in the father’s financial circumstances due to an involuntary job loss and reduced income warranted a modification of child support. The obligation was lowered to $148 per month.
On appeal, the mother argued that the father’s loss of income was the result of his voluntary conduct of smoking marijuana and that it should, therefore, be considered a voluntary reduction in income and his prior income should be imputed to him. The Court of Appeals disagreed. 24 Kan. App. 2d at 633.
The Court of Appeals interpreted language in section II.E.l.d. of the Kansas Child Support Guidelines, which provides that “[w]hen there is evidence that a parent is deliberately underemployed for the purpose of avoiding child support, the Court may evaluate the circumstances to determine whether actual or potential earnings should be used.” (1997 Kan. Ct. R. Annot. 91.)
The Johnson court found there was no evidence that the father s job loss was the result of an attempt to reduce his child support. Further, the court held that the father had not been charged or convicted of any crime as a result of the incident, thus nullifying the mother’s attempt to use the clean hands doctrine to bar the motion.
In Emerson, 18 Kan. App. 2d 277, Brad and Michelle were the parents of a disabled child who was receiving a supplemental security income benefit. Brad was incarcerated at the time the divorce hearing was held, had little or no income, and was liable for a restitution payment possibly exceeding $25,000. In light of this evidence the trial court refused to order Brad to pay child support, indicating that it would review this order at a later date. Among other issues, Michelle appealed the trial court’s failure to order child support.
With little discussion, the Court of Appeals reversed and remanded for a calculation of child support in the manner required by the guidelines. Because the trial court had made no calculations using the guidelines, the Emerson court found this was reversible error. In so holding, the court noted:
“We would point out that we are not compelling any specific award of child support in this case. We do, however, require compliance with the guidelines. If the trial court desires to deviate from the presumed amount called for by the guidelines, it must do so in an appropriate manner. It appears to us from reading the record that the trial court reacted in the manner in which it did due to Brad’s incarceration, his lack of income, and the heavy restitution required to be paid. We are not holding that those are not appropriate factors that may be considered in deviating from the guidelines. We reverse because the trial court failed to consider those factors within the framework of the guidelines.” 18 Kan. App. 2d at 279.
Modification of a child support obligation was not involved.
In another case, Brown v. Maloney, 24 Kan. App. 2d 424, 945 P.2d 424 (1997), a father, incarcerated for an unspecified crime, filed a motion to abate child support payments during this incarceration. He also requested that he be allowed to appear and argue his case. The district court dismissed the motion for failure to prosecute, finding that father had failed to appear. Father appealed the district court’s denial of his motion to transport.
The Court of Appeals reversed and remanded for consideration of the motion to abate. While the district court was not required to grant the petitioner’s request to be present at the hearing, its summary dismissal of the motion was in error. 24 Kan. App. 2d at 426.
None of these Kansas cases is persuasive herein. No claim was made that incarceration of the obligor, standing alone, was legally sufficient justification for the suspension or modification of the previously established child support obligation.
Fortunately, there is a smorgasbord of cases from other jurisdictions on the precise issue before us. This rich trove is not a matter of chance or coincidence. The United States has enacted a variety of legislation in the last 15 years, including the Child Support Enforcement Amendments of 1994 (42 U.S.C. §§ 651, 653-658, 664 [1994]) and the Family Support Act of 1988. This legislation has placed enormous pressure on the states to develop standardized child support obligation guidelines and to improve the collection thereof or else force major losses of federal funding. See the following for more in-depth discussion of the relevant federal legislation in the area: Elrod, Child Support Reassessed: Federalization of Enforcement Nears Completion, 1997 U. Ill. L. Rev. 695 (1997); Legler, The Coming Revolution in Child Support Policy: Implications of the 1996 Welfare Act, 30 Fam. L.Q. 519 (1996); Krause, Child Support Reassessed: Limits of Private Responsibility and the Public Interest, 24 Fam. L.Q. 1 (1990); Elrod, Kansas Child Support Guidelines: An Elusive Search for Fairness in Support Orders, 27 Washburn L.J. 104 (1987).
“Loss of Income Due to Incarceration as Affecting Child Support Obligation,” Annot., 27 A.L.R.5th 540, gathers together the large number of cases spawned in just this one narrow aspect of child support issues arising from the ever-evolving federally mandated state legislation.
For convenience we will designate the following categories for the results reached in cases collected in the annotation. Where modification of a child support obligation is sought, the incarceration of the obligor is held to be:
1. No justification;
2. Complete justification; or
3. One factor to consider.
The rationale applied in each category may be summarized as follows.
NO-JUSTIFICATION RULE
Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020 (1993), is a good example of this category.
The Mooney court stated that it continued to adhere to its prior holdings that a substantial change in the financial condition of the parent is recognized as grounds for modification of a previously-entered child support order. However, given the particular issue before it, the court reasoned that
“a rule absolving a parent of a child support obligation while incarcerated due to a voluntary criminal act is ‘in conflict with other well-established principles of domestic relations law . . . .’ [Willis v. Willis, 109 Or. App. 584, 820 P.2d 858 (1991)]. As we have often held, the support of children is a matter of social concern. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 70, 618 P.2d 867, 869. ‘It is an obligation that the father owes the State as well as his children.’ Fitzgerald, 618 P.2d at 869.” Mooney, 257 Mont, at 200.
The court then stated:
“ ‘Criminal conduct of any nature cannot excuse the obligation to pay support. We see no reason to offer criminals a reprieve from their child support obligations when we would not do the same for an obligor who voluntarily walks away from his job. Unlike the obligor who is unemployed or faced with a reduction in pay through no fault of his own, the incarcerated person has control over his actions and should be held to the consequences.
“ ‘A person who has a support obligation should not profit from his criminal conduct, particularly at his children’s expense. We recognize that an individual in father’s situation — assuming that he is genuinely indigent and unable to pay — cannot be found in contempt-for not paying support while incarcerated. However, this is not a contempt proceeding; it is simply a modification proceeding. Father should not be able to escape his financial obligation to his children simply because his misdeeds have placed him behind bars. The meter should continue to run. Accordingly, we hold the father’s support obligation continues to accrue during his incarceration.’ ” 257 Mont, at 201-02.
Additionally, citing cases from New Hampshire and Utah, the Montana court reasoned that while unemployment and diminution of earnings are often grounds for modification of a child support decree, a change in financial conditions brought about by “the voluntary waste of one’s talents and assets is not reason for modification of a decree.” 257 Mont, at 202. “ ‘[A]n able bodied person who stops working ... as a result of punishment for an intentional act, nonetheless retains . . . the duty to support his or her children.’ [Citation omitted.]” 257 Mont, at 202. This reasoning being in line with the public policy of the state of Montana, the district court’s order modifying father’s support obligation for the period of his incarceration was reversed.
In Ohler v. Ohler, 220 Neb. 272, 369 N.W.2d 615 (1985), a similar result was reached upon different rationale. There, the father sought to suspend his child support obligation during his 15-year period of incarceration. Father contended that the incarceration resulted in a material change of circumstances justifying the suspension.
The Ohler court first indicated that modification of a child support order may be allowed because of a material change in circumstances and if it is in the best interest of the child or children for whose benefit the support was ordered. 220 Neb. at 273. The court reasoned:
“A ‘material change in circumstances’ has been said to elude precise and concise definition, but, rather, involves an alteration and passage from one condition to another and requires consideration of a variety of factors or circumstances, including the obligated parent’s financial means, the needs of the child or children for whom the support is to be paid, the good or bad faith motive of the obligated parent in sustaining a reduction of means, and the permanence of the change. [Citation omitted.] A material change in circumstances in this context is analogous to the ‘good cause’ required to support a modification of alimony. [Citation omitted.]” 220 Neb. at 274.
The Ohler court noted that Nebraska dissolution of marriage cases are equitable in nature and that under the general maxim that one who seeks equity must come with clean hands, equity will refuse to aid a litigant who violates a statute directly connected with the matter in litigation. From that maxim, the court reasoned:
“Incarceration of the applicant necessarily means that he was found to have violated a criminal statute. It seems to us that where one seeks relief from the obligation to pay child support on the basis that he or she is incarcerated, the violation of the statute which resulted in the incarceration is directly connected with the matter of child support. Under those circumstances, equity should not and will not act to give relief.
“. . . Incarceration is certainly a foreseeable result of criminal activity; we find no sound reason to relieve one of a child support obligation by virtue of the fact that he or she engaged in criminal conduct. There is no reason those who have had to step in and assume the applicant’s obligation should not be reimbursed by the applicant should his future position enable him to do so.
“Further, we do not see how the best interests of the children for whom the support was ordered would be served by temporarily terminating the applicant's child support obligation.” 220 Neb. at 276.
Thus, under this line of cases, as a matter of law, incarceration is not grounds for modification or suspension of a child support obligation. See also Reid v. Reid, 57 Ark. App. 289, 944 S.W.2d 559 (1997) (mother agreed to modification of child support award, father wanted abatement; principles of equity do not entitle father to abatement of child support on grounds of unclean hands — father incarcerated for raping daughter which bears direct connection to proceeding at hand); Davis v. Vance, 574 N.E.2d 330 (Ind. App. 1991) (obligor must take responsibility for the crimes committed and all the repercussions which come with breaking the law; contrary to public policy and guidelines to allow abatement of child support due to willful, unlawful act of obligor); In re Marriage of Phillips, 493 N.W.2d 872 (Iowa App. 1992) (obligor’s incarceration for sexual abuse of stepdaughter does not constitute a change of circumstances justifying a modification; change of circumstances is due to own voluntary actions; unclean hands doctrine applicable); State v. Nelson, 587 So. 2d 176 (La. App. 1991) (when person commits a voluntary act, that act cannot be used to justify the extinction of a protected right like child support); Noddin v. Nod- din, 123 N.H. 73, 455 A.2d 1051 (1983) (continuing original support order not unfair where loss of income due to incarcerated parent’s misconduct; equity in jointly owned home could have been applied to support obligations; unclean hands doctrine applicable); Matter of Knights, 71 N.Y.2d 865, 527 N.Y.S.2d 748, 522 N.E.2d 1045 (1988) (obligor’s financial hardship is solely result of his wrongful conduct resulting in imprisonment; trial court’s determination that these changed financial circumstances did not warrant reduction or suspension of child support was not abuse of discretion); Koch v. Williams, 456 N.W.2d 299 (N.D. 1990) (obligor’s incarceration for incest does not constitute a material change of circumstances justifying modification of child support; principles of equity applied; voluntarily induced change does not justify modification; public policy to protect best interests of child).
This fine of cases holds, as a matter of law, that incarceration of a parent is not legal justification for modification or suspension of that person’s child support obligation.
COMPLETE-JUSTIFICATION RULE
Some jurisdictions have held that incarceration alone is justification for the suspension or modification of the inmate’s child support obligation to a level appropriate to his assets and income while incarcerated.
In Johnson v. O'Neill, 461 N.W.2d 507 (Minn. App. 1990), the court considered whether incarceration on an unrelated offense can constitute an unjustified self-limitation of income for purposes of child support. O’Neill remained current on his child support payments until December 1988, when he was incarcerated. He then sought modification of his child support obligation. The trial court acknowledged that O’Neill’s incarceration had decreased his income but concluded that because his criminal act was intentional, his incarceration was an unjustifiable self-limitation of income. The trial court imputed O’Neill’s earning capacity. The appellate court reversed, finding that the doctrine of self-limitation of income had not been extended to apply to every intentional act which results in negative economic consequences. It held that the intention to commit a crime does not automatically translate into intention to limit income. As such, the trial court’s order was reversed and the case remanded for a computation of the child support obligation based on the father’s actual income. 461 N.W.2d at 508.
In a similar case, Peters v. Peters, 69 Ohio App. 3d 275, 590 N.E.2d 777 (1990), rev. denied 57 Ohio St. 3d 711 (1991), the father was sentenced to 2 years’ imprisonment for federal income tax and illegal drug charges. At the time of sentencing, he was already $10,000 in arrears on his support payments of $200 per week. The father requested a suspension or modification of the support orders during his incarceration. The trial court denied the motion without a hearing.
The appellate court reversed, holding that the father’s situation was similar to one in which an employer terminates an individual’s employment. In both instances, the individual arguably has committed some culpable act requiring the actions of the other which has resulted in a decreased income. However, the court did not believe that in either case could the elimination of income be deemed voluntary. The Peters court held that public policy supports such a conclusion, since to hold otherwise would possibly expose the father to criminal contempt prosecution for failure to pay child support. The court believed it would be unconscionable to criminally punish an individual for neglecting to do what state action has prevented him from doing. The court remanded for a hearing to determine what assets could be made available for purposes of child support. 69 Ohio App. 3d at 277.
Other courts have also adopted this rale which allows the obligor’s incarceration to support a modification or abatement of child support. However, most require that the obligor make an affirmative showing that he or she has no assets or other income. See Nab v. Nab, 114 Idaho 512, 757 P.2d 1231 (Ct. App. 1988) (where noncustodial parent imprisoned for crime other than nonsupport, parent is not liable for payments while incarcerated unless he had income or assets to make such payments); Wills v. Jones, 340 Md. 480, 667 A.2d 331 (1995) (father’s incarceration was temporary material change of circumstance justifying modification of child support; prisoner is not voluntarily impoverished unless he or she committed crime with intent of going to prison or otherwise be coming impoverished); Bergen County v. Steinhauer, 294 N.J. Super. 507, 683 A.2d 856 (1996) (father’s long-term incarceration and lack of assets warranted suspension of child support obligation and arrearages; state has substantial interest in suspending arrearages as receipt of federal funds is based on child support collection statistics; recommended legislation to automatically review support orders of prisoners); Leasure v. Leasure, 378 Pa. Super. 613, 549 A.2d 225 (1988) (Ohler dissent adopted; child support payments should be suspended during incarceration where incarceration was not for remainder of father’s life; upon release, court should take into consideration period of time child had to go without father’s financial support); Marriage of Blickenstaff, 71 Wash. App. 489, 859 P.2d 646 (1993) (incarcerated father not voluntarily unemployed; remanded for proceedings on whether other assets existed); Glenn v. Glenn, 848 P.2d 819 (Wyo. 1993) (father sentenced to life; child support significantly reduced to lowest amount allowed by guidelines even though this amount was approximately equal to what father made in prison pay and military disability payments; obligation should be based on parent’s ability to pay).
ONE-FACTOR RULE
Some jurisdictions have the rule that incarceration is but one factor to be considered in determining a motion to modify or suspend the child support during the obligor’s incarceration.
In Oberg v. Oberg, 869 S.W.2d 235, 238 (Mo. App. 1993), the court stated:
“As the Iowa Supreme Court points out in In re Marriage of Vetternack, 334 N.W.2d 761, 763 (Iowa 1983), several major trends emerge from the existing case law: (1) a growing reluctance to modify decrees; (2) a parent’s current inability to pay has become less a consideration, and long range capacity to earn money has become more of a consideration; and (3) any voluntariness in a parent’s diminished earning capacity has become increasingly an impediment to modification. These trends have been motivated by the policy argument that a parent who stops working as a result of incarceration or criminal conduct nonetheless retains the duty to support his children. Although incarceration is not itself a voluntary situation, it is the foreseeable consequence of behavior that is voluntary and intentional. Therefore, incarceration does not excuse the obligation to support the needs of one’s children. The change in financial condition resulting from the voluntary dissipation of one’s talents is not sufficient reason for modifying a child support award. [Citations omitted.] This rule is consistent with the treatment of any parent who is voluntarily unemployed or underemployed and who accumulates arrearages because of his voluntary inability to pay. [Citation omitted.]
“The reasoning in this line of cases is convincing and is applied in this case. However, unique circumstances exist when a parent who is incarcerated does not have assets to satisfy or to continue to satisfy a court ordered child support award. The trial court will consider each such situation on a case-by-case basis. The requirement to pay child support is not punitive but is an obligation imposed by parenthood to satisfy the needs of the parent’s child as completely as the parent’s circumstances reasonably permit. The courts must, therefore, exercise considerable discretion in this type of case just as they must in all cases in which the financial obligation of a parent to satisfy the needs of the parent’s child is at issue. In exercising its discretion to determine the appropriate amount of child support applicable to an incarcerated parent who lacks assets, the trial court must consider a variety of factors, including (1) the length of incarceration experienced for the current conviction and the anticipated remaining period of incarceration, (2) the earning potential of the incarcerated parent following release, (3) the amount of the existing child support award,- and (4) the total amount of child support that will accumulate upon the incarcerated parent’s discharge.”
Additionally, upon release, the trial court should consider that the repayment of arrearages which accumulated during that parent’s incarceration may be scheduled according to the parent’s post-incarceration income. The incarcerated parent’s immediate inability to pay the obligation should also be a significant factor in determining whether contempt or criminal charges are appropriate for willful failure to pay. 869 S.W.2d at 238.
Thus, Oberg stands for the premise that while incarceration is not a per se reason to modify an existing child support obligation, it is one factor to be taken into account in determining both the level of support and the ability to pay arrearages and future payments.
In In re Marriage of Hamilton, 857 P.2d 542 (Colo. App. 1993), the father moved to abate or modify the child support award, citing his incarceration as a substantial and continuing change in circumstance. The Hamilton court held that evidence of incarceration, standing alone, does not justify abatement or modification of the parent’s obligation. Incarceration is one factor to be considered along with the intentional nature of the crime, financial circumstances, likelihood of future income, and any intention to evade the support obligation. The effect of the incarceration on the child support obligation is left to the trial court’s discretion. 857 P.2d at 544.
In Thomasson v. Johnson, 120 N.M. 512, 903 P.2d 254 (1995), the appellate court also concluded that incarceration standing alone does not support a showing that there is an inability to meet child support obligations. The Thomasson court outlined the following factors which a trial court might consider in determining whether the child support obligation should be modified: (1) the parent’s assets or other sources of income which would allow payment of child support; (2) the incarcerated parent’s ability to earn income in the past and in the future; (3) the length of the defendant’s incarceration; and, (4) the public policies applicable, such as the best interest of the child, the unclean hands doctrine, and the nature of the crime. 120 N.M. at 514-15. See also State ex rel. v. Ayala, 185 Ariz. 314, 916 P.2d 504 (Ct. App. 1996) (incarceration alone not sufficient ground for modification; trial court must inquire into other assets or income and whether application of guidelines would be inappropriate and unjust and whether deviation was in best interest of child); People ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087, 154 Ill. Dec. 436, 568 N.E.2d 436 (1991) (petition to modify child support decided on case-by-case basis; clean hands doctrine does not prohibit court from giving aid to criminal since misconduct must be in the transaction complained of; incarceration does not automatically relieve one of child support obligation; child support suspension during period of incarceration was not abuse of discretion); In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983) (father’s incarceration for firing a firearm through the window of ex-wife and children’s residence not sufficient justification for modification of child support where father was awarded fifty percent equity interest in marital home and equity in the house should be charged for the support payments he is unable to meet while incarcerated); Willis and Willis, 314 Or. 566, 840 P.2d 697 (1992) (modification allowed; where action leading to incarceration was not taken for primary purpose of avoiding support, court should determine modification on a case-by-case basis using child support formula, looking at assets, length of incarceration, future income); Parker v. Parker, 152 Wis. 2d 1, 447 N.W.2d 64 (Ct. App. 1989) (trial court should consider intentional nature of the crime, likelihood of future income, and other relevant evidence).
DISCUSSION
It is apparent from the rationale expressed in these cases from other states that, essentially, the result each reached does not rest on the statutes and prior case law of the particular state. Virtually all could have chosen any of the three options or hybrids thereof. The common thread in these opinions is that the ultimate decision rested on philosophical or public policy considerations.
Kansas is in the same situation. We could adopt any of the previously summarized three rules gleaned from the case law of other states.
Support for each position can be found in the Kansas Child Support Guidelines and our case law through analogy. The pluses and minuses attendant to each rule need to be weighed. We will consider the rules in reverse order. The one-factor rule carries some enormous negatives. One of the important goals of the guidelines is to achieve greater consistency and uniformity in child support orders. Obligors in like circumstances should be treated equally. The one-factor rule would, in large measure, rest on judicial discretion. The weight to be afforded to each pertinent factor to be considered would be up to the trial judge. In any penal institution wide variation in the final orders in the motions to modify would inevitably result, notwithstanding the similarity in the situations of many inmates.
Further, the one-factor and complete-justification rules mandate decisions on a case-by-case basis. Hearings would be required on all such motions putting further strains on the custodial parents’ finances and time, and consuming large quantities of scarce judicial time. Final resolution of a particular case could be years away from the filing of the motions as the case moves through the court system at the trial and appellate levels. The concern expressed by some courts adopting the complete-justification rule that any other rule would subject the inmate to possible contempt proceeding is unwarranted. It would be a rare situation indeed that incarceration itself could be the basis for a contempt action based on failure to pay child support by virtue of the very nature of the contempt proceedings.
Further, realistically speaking, it is difficult to see how either of these rules can be said to serve the best interests of the children involved.
On the plus side, each rule is aimed at reaching a tailor-made appropriate result in each individual case, based on the inmate’s particular situation.
These rules would, however, result in restitution being favored over child support. In the case herein, respondent was ordered to pay over $45,000 in restitution as a part of his federal sentence. Had he been convicted under Kansas law, restitution would have been ordered pursuant to K.S.A. 21-4603d. While incarcerated, an inmate has no greater ability to pay restitution than child support. Why should an inmate’s child support obligation be subject to modification or suspension by virtue of the parent’s incarceration when the required restitution order is unaffected by incarceration?
The no-justification rule has the advantages of being a bright line rule — easy to understand and apply without a court hearing. Results would be consistent. All inmates are treated equally. The specific language utilized in some of the cases supporting this rule to the effect that incarceration is similar to quitting a job to avoid paying child support and that in both situations, the inability to pay is “voluntary” stretches reality a bit. Most inmates would have difficulty accepting the concept that their incarceration is to be considered “voluntary.” It is more accurate to say that a reduction of income from a cause beyond the obligor’s control (such as illness, injury, lay-off, etc.) should be considered differently from those which arise from causes within his or her control. Criminal activity foreseeably can lead to incarceration and such activity is obviously within an individual’s control. Public policy considerations heavily favor the no-justification rule.
After careful consideration, we conclude that the answer to the question of law presented is “No.” The incarceration of a parent, standing alone, is not legal justification for the modification or suspension of that parent’s child support obligation previously deter mined under the Kansas Child Support Guidelines. Put another way, incarceration alone is not a change of circumstances which can justify suspension or modification of the child support obligation.
As no ground for modification other than incarceration was asserted, the district court had no legal basis for suspending respondent’s child support obligation herein. The district court’s order of suspension must be reversed.
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The opinion of the court was delivered by
Davis, J.:
Phillip R. Parks appeals from a life sentence for the murder of his wife, Rachel Parks. The court permitted the victim’s sister-in-law to submit a victim impact statement and to make a statement at the time of sentencing. The defendant argues that admission of these statements violates both the constitutional and statutory laws of Kansas. He also contends that the inflammatory nature of the statements caused him substantial prejudice. We affirm the defendant’s sentence.
On January 24,1997, the defendant pled no contest to premeditated first-degree murder in the strangulation and drowning death of his wife. The murder occurred on June 16, 1978. By way of explanation, the defendant was originally charged with the murder on June 16, 1978. The defendant’s statement given to officers at that time was suppressed by court order. On appeal, the trial court’s order of suppression was affirmed. See State v. Parks, 5 Kan. App. 2d 644, 623 P.2d 516 (1981). The State dismissed the charge without prejudice on March 6, 1981.
On September 14, 1993, the defendant was charged in New Mexico with the attempted murder of his new wife. He was convicted and received a 12-year prison sentence. During the New Mexico trial, it was revealed that the defendant had stated to his wife that he had to kill her just like he had killed Rachel. Based upon this information, a first-degree murder charge was filed against the defendant in Kansas on April 15, 1996.
The State entered into a plea agreement with the defendant whereby he would plea no contest to the charge of first-degree premeditated murder and the State would agree to recommend that his Kansas sentence run concurrent with his New Mexico sentence. The trial court accepted the defendant’s plea.
The State requested that Brenda Perez, sister-in-law of the victim, be permitted to submit a victim impact statement in the presentence investigation (PSI) report and that she be allowed to make a statement at sentencing. The defendant objected on the basis that the Kansas Constitution Victims’ Rights Amendment and the statutory bill of rights for victims of crime, K.S.A. 74-7333 et seq., prohibit such statements. The defendant further argued that under the law, a sister-in-law is not a member of the victim’s immediate family. The trial court concluded that Perez was a member of the victim’s immediate family and granted the State’s request.
The PSI report contained the following victim impact statement from Perez:
“Rachel was my best friend as well as my sister-in-law. We shared a bonding together that we could talk to each other & tell each other anything and that would be as far as it went. This is a bonding I wish I have never made because this may be why she’s gone today. She swore me to secreatsury [sic] not to tell her brother (my husband) for fear he would go after [the defendant] & be hurt himself or else get into trouble about it.
“It was my oldest son’s birthday when she died she was going to come over for his party later on that day. Anthony & Anita (my daughter) was looking forward to her being there. My husband was driving his mom & dad to Wichita to get his dad’s retirement started & then they were going by her house to come back to our house with her, but the hiway [sic] patrol told them they had to turn around and go identify her body. When Rudy called me and told me she was gone I remember a chill coming over my body & a feeling of numbness going all over. It was just like a knife had been placed into my body and my heart tom out. A day that once ment [sic] so much happiness with the birth of our first child is a day now of pain. I can’t even remember if my son[’s] birthday cake got finished or not that day. There[’s] always a certain sadness for him that day now to[o] as if he’s scared to be happy because of what else it marks the day of.
“Rachel didn’t deserve to die that day she was so young and had two children that she loved so much she gave he[r] own life for. She was a loving caring person who had cryed [sic] for help from being abused from [the defendant] & just like so many others never received any. And her life was taken. Her death has caused a void in all her family’s life that she will never be able to fill again & her soul will never rest nor her mother’s until justice is done. So by the Grace of God maybe after all these years justice will be done. And she & her mom can close there [sic] eyes in rest.”
At the defendant’s sentencing hearing, Perez stated:
“My name is Brenda Perez, and I am the sister-in-law. Phil, all I’ve got to say is you know for years now this family went through sheer hell because of your actions. I watched a family that was once real close together be tom. You took the fife of a wonderful person, and you used her kids to hold her with you, and that was unjust. It was cruel, and to this day, you still use your kid. You know, some day, some day you are going to have to meet your maker, and when that happens, I want, I’d love to be there because I want to hear you explain why. I want to hear you say why you done it. You know, Rachel was, she was going to be a mm. She went to school for that, and then she decided that she couldn’t take that last vow, and so she left the school, and she married a guy some years later after she graduated out of high school with me, and she had Jennifer, and that marriage got rocky, and she met you, and we tried to talk her out of marrying you because of some circumstances, and she, she decided to many you. But anyway, through the years, through the years several things happened, and then it ended up in her death. And now that lady, she has laid diere in her grave for years, not being able to rest, knowing that the guy that killed her was out, out free. She was bonded by the grave, and you were out free. This wasn’t fair. Her children had to grow up without their mom, and she could have, she could have done so much for those kids. She was a wonderful person. But yet you chose, you chose to take their mother away from them, and now you must pay. You must pay for that. You know, if, if I was a Judge, life in prison, that’s still your life. You have a life. She has no life. There’s only one comfort in all of this is going to happen now. Now Rachel and her mom can finally close their eyes in peace. After all these years she can close her eyes and rest in peace, knowing that justice has been done. You know, my husband wasn’t able to be here today, her brother, because of work. There is no one else to take his spot when he needs off. And I have watched him suffer, too. I have watched all his brothers suffer. His dad, he doesn’t even realize what is going on every day because he is so sick. His mom, she passed away, or her mom passed away a few years back. I watched that lady cry every day for Rachel. How it broke her heart when you done what you done. And I am just sorry that, that she didn’t get to see what this day came to. And you can choose to sit there and not listen if you want, or you can listen, but it really doesn’t do any good to people like you anyway to stand up here and say everything we have to say because you people have no feeling. If you had any feeling, you couldn’t have done what you done. Rut all I have got to say, if you ever get out of that jail, you better never come around our family again. When finally you do pass on from this world, may your soul rot in hell forever.”
Consistent'with its agreement, the State did not recommend a consecutive sentence. However, the trial court, after prior consideration of the sentencing factors in K.S.A. 21-4606, imposed a life sentence consecutive to the defendant’s New Mexico sentence.
Discussion and Analysis
The defendant argues that both the Kansas Constitution Victims’ Rights Amendment and the statutory bill of rights for victims of crime, K.S.A. 74-7333 et seq., represent and express a policy decision by Kansas that only the crime victim has the right to testify at sentencing although members of the family may attend. He argues that his sentence was illegal because Perez was allowed to make her statements but was not a victim nor a member of the victim’s immediate family.
The Kansas Victims’ Rights Amendment, art. 15, § 15 of the Kansas Constitution, states in pertinent part:
“(a) Victims of crime, as defined by law, shall be entitled to certain basic rights, including the right to be informed of and to be present at public hearings, as defined by law, of the criminal justice process, and to be heard at sentencing or any other time deemed appropriate by the court, to the extent that these rights do not interfere with the constitutional or statutory rights of the accused.”
K.S.A. 1997 Supp. 74-7333(a)(5), (6), provide that the views and concerns of victims should be ascertained and appropriate assistance provided throughout the criminal process. When the interests of the victims are affected, the views or concerns of the victim should, when appropriate and consistent with criminal law and procedure, be brought to the attention of the court. The term “victim” is defined as “any person who suffers direct or threatened physical, emotional or financial harm as the result of the commission or attempted commission of a crime against such person.” K.S.A. 1997 Supp. 74-7333(b). The crime victim and the victim’s family, defined as the spouse, surviving spouse, children, parents, legal guardian, siblings, stepparent or grandparents, are required to be notified of the right to be present at public proceedings concerning the accused. K.S.A. 1997 Supp. 74-7335.
The purpose of the bill of rights for victims of crime is to ensure the fair and compassionate treatment of such victims. See K.S.A. 1997 Supp. 74-7333(a). In order to do so, the bill of rights ensures that victims will receive certain minimum rights. The same is true with the Victims’ Rights Amendment. See Kan. Const, art. 15, § 15. The purpose of these enactments is to guarantee rights, not restrict rights.
It is true that Perez was not a “victim” as defined by K.S.A. 1997 Supp. 74-7333(b). It is also clear that she is not a member of the victim’s family as defined in K.S.A. 1997 Supp. 74-7335. However, these facts make no difference as to whether she should have been allowed to submit a victim impact statement or to testify. Neither the Kansas Constitution Victims’ Rights Amendment nor the statutory bill of rights for victims of crime restrict the ability of non-victim and nonfamily members to testify and submit statements during the sentencing phase of criminal proceedings in Kansas.
The crime for which the defendant was sentenced occurred in 1978. Thus, the provisions of K.S.A. 21-4601 et seq. apply. Under the sentencing structure as it existed prior to the Kansas Sentencing Guidelines Act, the sentencing judge was required to consider several sentencing factors in order to determine a defendant’s sentence. See K.S.A. 21-4606. One of these factors was “[t]he extent of harm caused by the defendant’s criminal conduct.” K.S.A. 21- 4606(b)(2). Further, the sentencing judge was explicitly directed to consider a PSI report containing, among other things, the attitude of the complainant or victim and if possible in homicide cases, the victim’s immediate family. See K.S.A. 21-4604(b)(2).
The sentencing judge alone determines the appropriate sentence or other disposition in each case by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, the public safety, and the statutory guidelines for sentencing. State v. Ricks, 257 Kan. 435, 441, 894 P.2d 191 (1995). In so determining, the sentencing judge may consider all relevant facts occurring before sentencing. State v. Hannah, 248 Kan. 141, 145, 804 P.2d 990 (1991). The only question in this case is whether the trial court abused its discretion by admitting the statements.
The trial court was required to consider the extent of the harm committed by the defendant. Impact statements and testimony of the victim’s family, both immediate and extended, may, in the judge’s discretion, be relevant in making this determination. In ascertaining the extent of the harm caused by the defendant’s conduct, even impact statements from nonfamily members may be relevant.
It is true that many of the statements made by Perez, both in her victim impact statement and in her statements at sentencing, were inflammatory and of little value to the judge. In State v. Gideon, 257 Kan. 591, 894 P.2d 850 (1995), we noted that when considering statements made to a sentencing judge as opposed to a sentencing jury, the judge could “properly determine what weight, if any, to give the statements.” 257 Kan. at 605.
The same is true in the instant case. Perez’ statements were submitted to a sentencing judge who could properly determine the weight, if any, to give the statements. Moreover, the record does not show that the court improperly considered these statements, nor does it show that the defendant’s sentence was ordered to run consecutive to rather than concurrent with his sentence in New Mexico as a result of any passion, prejudice, or any other arbitrary consideration by the sentencing judge. We conclude that the trial court did not abuse its discretion in admitting the statements of Perez.
Affirmed. | [
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|
Per Curiam,-.
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Mitchell B. Taylor, of Topeka, an attorney licensed to practice law in the state of Kansas. Complaints against Taylor alleged that he violated MRPC 1.2 (1997 Kan. Ct. R. Annot. 273) (Scope of Representation), MRPC 1.3 (1997 Kan. Ct. R. Annot. 276) (Diligence), MRPC 1.4 (1997 Kan. Ct. R. Annot. 282) (Communication), MRPC 1.15 (1997 Kan. Ct. R. Annot. 316) (Safekeeping Property), MRPC 1.16 (1997 Kan. Ct. R. Annot. 324) (Declining or Terminating Representation), MRPC 3.1 (1997 Kan. Ct. R. Annot. 332) (Meritorious Claim), and MRPC 8.4 (1997 Kan. Ct. R. Annot. 366) (Misconduct).
FACTS AND DISCUSSION:
The facts are not in dispute. In late 1995, Amos and Betty Crawford retained Taylor, who practiced in Wichita, to represent them in seeking grandparent visitation. The Crawfords paid Taylor a $500 retainer. Taylor filed a motion for grandparent visitation on December 1, 1995.
The Crawfords had previously sought visitation. On March 3, 1995, their request was rejected by Judge Dewey, who held that as a prerequisite to any subsequent motions, the Crawfords were required to be evaluated and a home study completed. When Taylor filed the motion on behalf of the Crawfords, he was aware that neither of the prerequisites required by the district judge had occurred.
In January 1996, a custody investigation was dismissed by the district judge because Taylor failed to provide a necessary stipulation and order to proceed. Taylor failed to do so although he advised his clients that he would. An evidentiary hearing was scheduled by the district judge for March 4,1996. Taylor did not inform his clients of the hearing. Neither Taylor nor his clients attended. As a result of the failure to appear, the district judge awarded attorney fees to the party opposing visitation. The Crawfords were never informed of the hearing or that an award of $787.50 for attorney fees had been imposed. This resulted in a garnishment being filed against the Crawfords’ bank account.
The same day, Taylor filed a motion to reinstate the custody investigation. Although the motion was granted by the district judge, it was again dismissed in May 1996 because the necessary paperwork had not been completed by Taylor.
In April 1996 Taylor checked himself into inpatient treatment for alcoholism. Subsequently, he had a relapse. His alcoholism impaired his ability to represent the Crawfords. Taylor did not withdraw from his representation of the Crawfords after he became impaired.
The panel found Taylor’s impairment interfered with his ability to represent the complainant and his wife. Taylor did not withdraw from representing the Crawfords pursuant to the requirement of MRPC 1.16(a)(2).
In a second complaint, Russell Spaulding retained Taylor to represent him in an expungement matter. Spaulding paid Taylor a retainer of $150. After researching the matter, Taylor determined there was no basis in law to file a motion for expungement. However, Taylor did not communicate this fact to his client or return the unused portion of the retainer. When Spaulding attempted to call Taylor in September 1996, Taylor’s phone had been disconnected.
The panel found Taylor failed to terminate his representation of the complainant pursuant to the requirement of MRPC 1.16(a)(2). Taylor did not return the unearned retainer to the complainant.
In a third complaint, Municipal Court Judge Gregory Keith filed a complaint against Taylor. Judge Keith stated that Taylor had en tered his appearance to represent Kevin Mills in the case of City of Haysville v. Kevin Mills. Taylor did not appear on the date of trial. Judge Keith reset it. Taylor again failed to appear. Judge Keith reset the case a second time. At that trial date, neither Taylor nor the client appeared. An arrest warrant was issued for Mills. When Judge Keith attempted to contact Taylor, he discovered that Taylor s telephone had been disconnected.
The panel found Taylor failed to terminate his representation of Mills, as required by MRPC 1.16(a)(2). Taylor was not diligent in pursuing the representation of Mills and failed to advise the court about the status of the case.
The Disciplinary Administrator filed a formal complaint on October 17,1997: A hearing occurred on November 19,1997. Taylor and Disciplinary Administrator stipulated to the previous facts and exhibits supporting the facts. On December 18, 1997, a final hearing report was filed and Taylor filed an answer to citation noting no exceptions to the report.
In addition to the stipulations, the Disciplinary Administrator noted Taylor had been suspended under Supreme Court Rule 208 (1997 Kan. Ct. R. Annot. 219) for failure to pay the annual registration fee. The Disciplinary Administrator informed the panel that Taylor had taken the necessary steps to register for disabled inactive status with the Clerk of the Appellate Courts of Kansas pursuant to Supreme Court Rule 220 (1997 Kan. Ct. R. Annot. 248). Consequently, Taylor cannot practice law until restored to active status. To be reinstated, Taylor must show by clear and convincing evidence that his disability has been removed and he is fit to practice law. Taylor has voluntarily discontinued the practice of law and stated that he has no desire to return.
The panel found the following aggravating factor:
(1) A pattern of misconduct and multiple offenses.
The panel found the following mitigating factors:
(1) Respondent has no prior disciplinary record.
(2) The facts demonstrated no dishonest or selfish motive.
(3) Respondent has personal or emotional problems which contributed to the violations of the Rules of Professional Conduct.
(4) Respondent’s present and past attitude has been one of cooperation during the hearing, and he has made a full and free acknowledgment of his transgressions.
(5) Respondent has demonstrated remorse for his conduct.
Based upon the stipulations, the panel found by clear and convincing evidence that Taylor violated the Model Rules of Professional Conduct as charged in the Disciplinary Administrator’s complaint. These are: MRPC 1.2, 1.3, 1.4, 1.15, 1.16, 3.1, and 8.4.
The panel noted that as a result of Taylor’s misconduct, the Crawfords’ bank account was garnished in die amount of $787.50. Additionally, Spaulding paid a retainer of $150 for which he received no services. During the investigation, Taylor freely admitted that he should reimburse both clients. As to the $500 retainer paid by the Crawfords, Taylor stated that he had worked on the Craw-fords’ case for approximately 20 hours and although the result was not what they wanted, he had earned the retainer.
We disagree with Taylor’s claim that he had earned the retainer fee and should not be required to reimburse his client. Taylor failed to do what he was retained for — to represent his clients in court. Taylor’s failure in the courtroom caused his office work to be of no value to his clients.
The Disciplinary Administrator recommended that Taylor be disciplined by published censure and that prior to any reinstatement, Taylor must make restitution of $787.50 to the Crawfords and $150 to Spaulding. The panel partially accepted the Disciplinary Administrator’s recommendation and further recommended that Taylor make restitution of $500 to the Crawfords for the retainer they paid.
Taylor did not take exception to the panel’s recommendations.
It is also noted that on November 5,1997, Taylor was suspended from the practice of law in Kansas for failure to pay the 1997 annual attorney registration fee and the 1997 annual CLE registration fee. On December 1, 1997, Taylor had satisfied the requirements pertaining to attorney registration and continuing legal education, and was reinstated. In addition, pursuant to his request, Taylor was immediately registered as disabled due to mental or physical disabilities pursuant to Supreme Court Rule 208(a). The order noted that should Taylor seek reinstatement to active status, the Supreme Court may impose appropriate conditions, costs, and registration fees before or upon granting reinstatement pursuant to Supreme Court Rule 208(f)(1).
It Is Ordered that Mitchell B. Taylor remain on inactive status under Rule 220 and with conditions set for Taylor to be reinstated later. We accept the recommendation of the Disciplinary Administrator and discipline Taylor by published censure. Taylor is ordered to make restitution of $787.50 plus $500 to the Crawfords and $150 to Spaulding.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to Taylor.
Abbott and Larson, JJ., not participating.
Robert H. Miller, C.J. Retired, and E. Newton Vickers, Senior Judge, assigned. | [
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|
The opinion of the court was delivered by
Davis, J.
Johnny McCurry, Jr., was convicted of three counts of aggravated robbeiy and one count of kidnapping based on three separate cases which were consolidated for trial. The Court of Appeals reversed the kidnapping conviction and remanded for re-sentencing. State v. McCurry, No. 84,856, unpublished opinion filed November 16, 2001. The trial court imposed consecutive sentences; a 64-month sentence for each aggravated robbeiy for a controlling term of 192 months.
The Court of Appeals reversed, holding that the double rule in K.S.A. 2003 Supp. 21-4720(b)(4) (which has been unchanged since the crimes were committed in 1997) applied, limiting the defendant’s sentence to 128 months. State v. McCurry, 32 Kan. App. 2d 806, 89 P.3d 928 (2004). We granted the State’s petition for review and reverse the Court of Appeals’ decision reversing the district court. We affirm the decision of the district court.
McCurry was charged with one count of aggravated robbery in Case No. 98CR1390, one count of aggravated robbery in Case No. 98CR1392, and one count each of aggravated robbeiy and kidnapping in Case No. 98CR1411, in connection with three robberies of two different Subway restaurants on three different dates in May 1998. The cases were consolidated for trial, and McCurry was convicted of all the charges and sentenced to a controlling term of 653 months’ imprisonment. On direct appeal, the Court of Appeals reversed the kidnapping conviction, vacated the sentence, and remanded for resentencing. See State v. McCurry, No. 84,856, unpublished opinion filed November 16, 2001.
On remand, McCurry’s criminal history score of G, coupled with his severity level 3 aggravated robbeiy convictions, placed him in the sentencing grid box range between 57 and 64 months for each conviction. The district court imposed consecutive 64-month sentences in each case for a controlling term of 192 months’ imprisonment.
McCuriy filed a pro se motion to correct an illegal sentence, arguing that because his cases were consolidated for trial, they should be “considered multiple counts in a single complaint, information or indictment” and were subject to 21-4720(b)(4), which limits the length of a defendant’s sentence to twice tire base sentence (128 months). The district court denied the motion, reasoning:
“The double rule limit [in 21-4720(b)(4)] applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases . . . .” State v. Roderick, 259 Kan. 107, 114, 911 P.2d 159 (1996). K.S.A. 21-4720(b)(5) applies to nonbase sentences included in the same charging document as the base sentence. State v. Bolin, 266 Kan. 18, 23, 968 P.2d 1104 (1998).
“Although his cases were consolidated for trial, McCurry’s robbery convictions arose from three separate charging documents. Therefore, K.S.A. 21-4720(b)’s double rule does not apply to his robbery sentences. In light of Roderick and Bolin, McCurry’s argument that he was illegally sentenced is without merit.”
The Court of Appeals reversed on appeal in State v. McCurry, 32 Kan. App. 2d 806, 89 P.3d 928 (2004). The Court of Appeals rejected the State’s argument that the defendant was not charged and convicted on multiple counts in the same charging document but on separate cases consolidated for trial. The court concluded that “the State’s argument does not give sufficient consideration to the fact that all three cases at issue could be and were consolidated for trial,” 32 Kan. App. 2d at 808, and that State v. Taylor, 262 Kan. 471, 939 P.2d 904 (1997), “demonstrates the legislature’s intent to apply a different rule for prior convictions when cases are actually consolidated for trial as opposed to pleading in several independent cases on the same date.” 32 Kan. App. 2d at 808.
Identifying the consolidation of the three cases as the central issue, the Court quoted from Taylor, 262 Kan. at 479: “ ‘When separate complaints are consolidated for trial, there is a single trial and the jury is to determine each charge on the evidence submitted on each count of the separate complaints.’ ” 32 Kan. App. 2d at 809. It further quoted State v. Boone, 220 Kan. 771, Syl. ¶ 1, 556 P.2d 880 (1976), for the following proposition: “ ‘When two or more complaints, informations or indictments against a single de fendant are tried together under K.S.A. 22-3203, the procedure should be the same as if the prosecution were under a single complaint, information or indictment.’ ” 32 Kan. App. 2d at 809. Concluding that the double rule should apply to cases consolidated for trial, the panel reasoned:
“The trial court consolidated all three cases based on K.S.A. 22-3203, which provides that the court can consolidate two or more complaints against a single defendant ‘if the crimes could have been joined in a single complaint, information or indictment.’ McCurry cites State v. Aspinwall, 173 Kan. 699, 710, 252 P.2d 841 (1953), and the common definition of ‘consolidate’ in arguing that the legal effect of the consolidation was the merger into a single complaint or information. The effect of consolidation does not technically merge all the cases into one single complaint or information, but the practical effect of the consolidation is exactly the same. To rule odrerwise could lead to anomalous results. Counts that could, and possibly should, be charged togetirer, could be charged individually and then consolidated just to avoid the legislatively mandated double rule.” 32 Kan. App. 2d at 809-10.
The sole issue in this appeal is whether the sentencing limitations of the double rule found in 21-4720(b)(4) apply to separate complaints consolidated for trial. The interpretation of a statute is a question of law, and our review is unlimited. We are not bound by either the district court’s or the Court of Appeals’ interpretation of this statute. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003).
The -meaning of a particular statute is dependent upon the intent of the legislature. Our interpretation of the statute in this case is therefore guided by the following principles:
“Interpretation of a statute is a question of law. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be. The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” (Emphasis added.) State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
The State argues that the Court of Appeals erred in finding the sentencing limitations of the double rule pursuant to 21-4720(b)(4) apply to separate complaints consolidated for trial. The State’s petition for review raises several points of error in the panel’s opinion: (1) disregard of the plain language of the double rule, (2) misapplication of Roderick, (3) reliance upon Boone dictum in the consolidation analysis, (4) grafting consolidation language which was used in K.S.A. 21-4710 on to K.S.A. 2003 Supp. 21-4720, and (5) reliance upon the inappropriate legal reason of “anomalous results” in disregard of a plain and unambiguous statute. Our examination of the interrelated arguments of the State convinces this court that the Court of Appeals failed to give consideration to the plain language of the statute.
K.S.A. 2003 Supp. 21-4720(b)(2) provides that in multiple conviction cases where consecutive sentences may be imposed, “[t]he sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity level ranking.” K.S.A. 2003 Supp. 21-4720(b)(4) sets forth the “double rule,” which provides:
“The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the nonbase sentences imposed to be served consecutively to the base sentence.” (Emphasis added.)
The plain language of 21-4720(b)(4) provides that the double rule is applicable to “multiple convictions arising from multiple counts within an information, complaint or indictment.” (Emphasis added.) The use of the word “an” demonstrates that the convictions must arise under a single charging document. Review of the relevant case law reveals that this plain reading of 21-4720(b)(4) effects legislative intent.
Although this court has never determined whether this statute is applicable to cases consolidated for trial, it has interpreted this statute in other contexts. In State v. Roderick, 259 Kan. 107, 113-14, 911 P.2d 159 (1996), the defendant had pleaded guilty to multiple counts in different cases on the same date, and he argued that his situation should be treated as a “multiple conviction case” under K.S.A. 1994 Supp. 21-4720(b)(4)’s “double rule.” Rejecting this argument, the court reasoned:
“Legislative history answers the question of whether Roderick’s situation should be treated as a K.S.A. 1994 Supp. 21-4720(b) ‘multiple conviction case.’ K.S.A. 1993 Supp. 21-4720(b)(4) provided in part: ‘The total sentence assigned for a current conviction event cannot exceed twice the base sentence.’ The term ‘conviction event’ was defined at K.S.A. 1993 Supp. 21-4703(c) (the guidelines definition section) as ‘one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.’
“In 1994, the legislature deleted all references to conviction events from the guidelines (from 21-4703 in L. 1994, ch. 291, § 49; from 21-4720(b)(4) in L. 1994, ch. 291, § 59). The legislature provided that the limits on the total sentence would apply to ‘multiple convictions arising from multiple counts within an information, complaint or indictment.’ K.S.A. 1994 Supp. 21-4720(b)(4). The legislature changed a same day, single court requirement to a same information or complaint requirement to invoke tire double rule limit. The change was made for the purpose of ‘limiting the application of the “double rule” limit for consecutive sentence[s] to multiple [counts] in the same case rather than all counts for which the defendant was convicted at one time, regardless of whether from different cases.’ Kansas Report on Legislative Interim Studies, p. 116 (1994).
“Roderick’s situation would have fit within the definition of ‘conviction event’ in K.S.A. 1993 Supp. 21-4703(c). The double rule limit in K.S.A. 1993 Supp. 21-4720(b)(4) also would have applied. However, the 1994 amendments indicate that the legislature intended to remove situations like Roderick’s from the double rule limit. The double rule limit applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases pled to on the same date. K.S.A. 1994 Supp. 21-4720(b) does not apply to Roderick’s situation.” 259 Kan. at 114.
In State v. Bolin, 266 Kan. 18, 19, 23, 968 P.2d 1104 (1998), this court considered two consolidated cases addressing the definition of a “multiple conviction” case under K.S.A. 21-4720(b) in light of Roderick. In one case, the panel relied upon a Court of Appeals’ opinion that held all provisions of 21-4720(b), except (b)(4), apply when sentencing a defendant who pleads guilty to multiple crimes arising from different charging documents on the same day. In the other case, the panel construed all of the subsections together to conclude that (b)(5) applied only to multiple counts within the same information, complaint, or indictment. The Bolin court agreed with the latter case, extending the holding of Roderick : “A multiple conviction case is a case involving multiple crimes arising under a single charging document. The definition applies for all provisions of K.S.A. 21-4720(b).” 266 Kan. at 19.
Although Roderick and Bolin concern application of the double rule to separate cases pled to on the same day, the discussion in Roderick of the legislative history remains relevant to this appeal. Like Roderick, McCurry’s convictions would have fallen under the definition of “conviction event” found in the 1993 version of the statute because the statute involved multiple convictions “from more than one information.” However, the legislature’s omission of this language from the statute in 1994 demonstrates an intent to exclude convictions arising out of multiple complaints from the double rule.
The plain language of 21-4720(b)(4), Roderick, and Bolin, establish that the double rule applies to convictions in a single charging complaint, information, or indictment. The Court of Appeals reasoned that the legislature intended to apply a different rule to consolidated cases under Taylor because the practical effect of consolidation was a merger of the separate complaints into one. The basis for this ruling was that “[t]o rule otherwise could lead to anomalous results. Counts that could, and possibly should, be charged together, could be charged individually and then consolidated just to avoid the legislatively mandated double rule.” 32 Kan. App. 2d at 810.
In order to reach this result the Court of Appeals had to ignore an important principle of statutory interpretation, vis., “When a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature, rather than determine what the law should or should not be.” Cox, 258 Kan. 557, Syl. ¶ 7. The case relied on by the Court of Appeals for support, Taylor, fails to provide such support. Taylor pled guilty to nine counts in three complaints which had been consolidated for trial. The State argued on appeal that the district court failed to count each of the other convictions in determining criminal history under K.S.A. 1994 Supp. 21-4710(a), which defined a prior conviction as “any conviction which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
Although the issue was not properly preserved for review, this court noted that effective July 1, 1995, the legislature amended the “prior convictions” definition in K.S.A. 1994 Supp. 21-4710(a) to preclude the use of other counts joined for trial in a current offense in determining criminal history. See K.S.A. 21-4710(a) (“A prior conviction is any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto . . . .”). (Emphasis added.) Since the offenses were committed prior to July 1, 1995, the 1994 version of the statute was applicable in Taylor. See 262 Kan. at 474-75.
Contrary to the Court of Appeals’ conclusion, Taylor supports excluding separate charges in separate complaints from the double rule. While Taylor concerned a completely different statute than the one we consider, it nevertheless demonstrates that the legislature is both capable of and has recognized the necessity of spelling out when it intends that cases consolidated for trial be considered differently from those cases which are not consolidated for trial. The legislature was aware that K.S.A. 22-3203 permitted the consolidation of complaints; however, it specifically chose not to include this language in K.S.A. 2003 Supp. 21-4720(b)(4). While the plain language of 21-4710(a) demonstrates that the legislature intends to treat cases consolidated for trial in the current case differently from other prior convictions when calculating criminal history, the plain language of 21-4720(b)(4) demonstrates legislative intent to exclude consolidated cases from application of the double rule.
The Court of Appeals also relied upon State v. Boone, 220 Kan. 771 Syl. ¶ 1, 556 P.2d 880 (1976), for the proposition that “ ‘[w]hen two or more complaints, informations or indictments against a single defendant are tried together under K.S.A. 22-3203, the procedure should be the same as if the prosecution were under a single complaint, information or indictment.’ ” 32 Kan. App. 2d at 809. However, Boone considered consolidated cases tried in two “mini trials” to accommodate two different defense counsels. Moreover, Boone was decided well before the Kansas Sentencing Guidelines were enacted in 1993. As such, Boone provides little support for the Court of Appeals’ application of the double rule to cases consolidated for trial.
The defendant argues that consolidated cases for trial merge by operation of law into a single complaint; however, the relevant statutes show otherwise. K.S.A. 22-3203 provides that “[t]he court, may order two or more complaints, informations or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.” (Emphasis added.) K.S.A. 22-3202(1) provides:
“Two or more crimes may be charged against a defendant in the same complaint, information, or indictment in a separate count for each crime if the crimes charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
These statutes, thus, provide two different options for the trial of similar charges — they can be charged together under one complaint, or separate complaints can be consolidated together for trial. The plain language of K.S.A. 22-3203 does not provide that the consolidated cases are merged into one complaint. Rather, it provides that the separate cases may be tried together if the separate crimes could have been originally charged in a single complaint. This is precisely what happened in this case. McCuriy’s three similar but separate cases were consolidated for trial. The three separate cases did not merge into one complaint. See Taylor, 262 Kan. at 479 (“When separate complaints are consolidated for trial, there is a single trial and the jury is to determine each charge on the evidence submitted on each count of the separate complaints.”).
The three separate cases were acknowledged by die district court in denying McCuriy’s motion to consolidate the three case numbers into one. The district court reasoned that the three cases were separate offenses which occurred on separate dates and the court did not have the authority to consolidate case numbers which were filed separately. The Court of Appeals’ conclusion that the double rule was applicable to cases which did not “technically” arise out of the same complaint cannot be reconciled with the plain and unambiguous language of the statute. The panel exceeded its standard of review by determining what it thought the law should be, based on its own speculation of what could happen under a different set of facts if a particular interpretation were applied. The double rule in 21-4720(b)(4) does not apply to cases consolidated for trial pursuant to K.S.A. 22-3203. The sentence imposed by the district court is affirmed.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is affirmed. | [
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|
The opinion of the court was delivered by
Larson, J.:
In this first impression damage action, we must decide if the wife of a criminal offender has a special relationship with a minor, giving rise to her having a duty to warn the minor of the likelihood of being sexually abused by her husband.
We must further decide if liability may be imposed on the wife of a criminal offender under the theory of premises liability, as described by Restatement (Second) of Torts § 314A(3) (1964) for the criminal acts of her husband occurring on real property which they jointly owned and where they both resided.
In answering these questions, we set forth the facts, the history of the litigation, and the rulings of the district court and Court of Appeals; state the standards of review and the contentions of the parties; and analyze the duty to warn and premises liability issues before reaching our conclusions.
Factual Background
D.W. met Richard Bliss in May 1998 while D.W. was waiting for a school bus in his neighborhood. Richard asked D.W. if he would mow Richard’s lawn, and D.W. agreed to do so.
During the summer of 1998, D.W. became 15 years old in July and developed a relationship with Richard. The two spent time together playing racquetball, fishing, shopping, watching television in Richard’s house, and just talking. Richard gave D.W. gifts and money.
D.W.’s mother initially believed Richard was acting as a mentor to D.W. Richard was active as a leader and mentor in various youth groups and regularly devoted time to such endeavors.
During this time, Richard was married to Carol Bliss, and they resided together in Johnson County. Carol was present during some of the time Richard and D.W. spent together at the Bliss home, but there was little interaction between Carol and D.W., who characterized his relationship with Carol as nonexistent. D.W.’s telephone calls were to Richard; Carol never invited D.W. to the Bliss household. Carol was never involved in D.W.’s activities either inside or outside of the Bliss home.
In the fall of 1998, Richard began having criminal sexual encounters with D.W. Most were outside the Bliss home at the Wolbach Farm, at a duck club in Wyandotte County, and in Bennett Springs, Missouri. Carol never witnessed any of the encounters and denied she knew about them. D.W. did not believe Carol knew the encounters were occurring. Richard and D.W. made every effort to conceal the improper relationship from Carol.
Several months later, Richard hired a prostitute for D.W. Ultimately, the criminal acts perpetrated by Richard became known. As the result of his illicit sexual actions with D.W., Richard pled guilty in Wyandotte County to one count of furnishing alcohol to a minor and one count of aggravated indecent liberties and pled guilty in Johnson County to one count of aggravated indecent liberties.
After the charges against Richard were filed, two men, A.M. and G.S., whom Richard had previously mentored, came forward to D.W.’s family and admitted having sexual relationships with Richard. Deposition testimony clearly showed that neither sexual relationship occurred until both men were adults. Both men met Richard while they were teenagers.
A. M., born in February 1966, met Richard when he was 14 years old through a YMCA mentoring program. He lived in the Bliss home for 2 or 3 months as a sophomore in high school when he had problems with his mother. A.M. began having sexual encounters with Richard after he turned 18 and continued until he was 22. Richard and A.M. continued a friendly relationship after they ceased being involved sexually.
A.M. testified to an incident where Carol started to enter a room where he and Richard were watching a pornographic movie and masturbating each other. The tape was turned off, and Richard met Carol at the door. A.M. knew they talked but did not know what was said. Another time, Carol started down the stairs into the basement where Richard was performing oral sex on A.M. A.M. stated he quickly pulled his pants up, and Carol stopped part way down the stairs and went back up the stairs, saying nothing. A.M. admitted it was speculation on his part as to whether Carol knew about the sexual encounters.
A.M. introduced G.S. to Richard while they were in high school. G.S., born in December 1965, mowed Richard’s lawn. After he turned 18, he moved into the Bliss house. G.S. did not begin to have a sexual relationship with Richard until he was 18, and it continued until 1990, when he was 25 years old. After the sexual encounters stopped, he continued to live in the Bliss home for some time and enjoyed a family-type relationship with Richard and the two Bliss daughters.
G.S. testified that while he was living in the Bliss house, there were a number of times when Carol came upstairs to the bedroom and knocked on the closed door when he and Richard were engaged in sexual activity. Richard would go to the door and speak with Carol, but G.S. did not hear the conversation. There was also testimony that Carol found pornography under G.S.’s bed. G.S. testified Carol never witnessed any of the acts and that he and Richard agreed to keep the sexual relationship secret from Carol.
D.W., G.S., and A.M. all testified in their depositions that Richard lied to Carol to prevent her from having knowledge about his sexual encounters with them. In his deposition, Richard claimed Carol had absolutely no knowledge about his sexual relationships. He said he had hidden them for more than 10 years. He denied that Carol had ever given any indication that she knew of his sexual relationships with D.W., G.S., or A.M.
History of Litigation
D.W. brought a civil action against Richard and Carol. D.W. later dismissed with prejudice his action against Richard, leaving Carol as the sole defendant. D.W.’s claims were for negligence, negligent infliction of emotional distress, and defamation by Richard’s attorney. D.W. alleged Carol knew about Richard’s sexual propensities based on the statements of G.S.and A.M. and should have warned him. D.W. further argued that Carol, as co-owner of the home, had a duty to warn him of the dangerous conditions existing on the property. D.W. finally contended Carol conspired with Richard to harm him by using marital funds to hire attorneys who defamed him by their communications.
Carol, by her answer and summary judgment affidavit, denied any knowledge of Richard’s sexual relationships with D.W., G.S., or A.M. until after Richard’s arrest on the charges involving D.W. She denied walking in on encounters between A.M. and Richard and stated she routinely knocked on G.S.’s door out of respect for his privacy just like she did with her daughter’s doors. She stated it was not unusual for young men to be around the house, as Richard had mentored many during their marriage. She admitted to finding pornography in G.S.’s room but did not equate that to a sexual relationship between G.S. and Richard. She denied D.W. was ever in her care, custody, or control.
Carol moved for summary judgment, contending there was no material evidence she knew Richard was a threat to D.W.; D.W. had never been in her care, custody or control; she had no special relationship with D.W. or Richard giving rise to a duty to warn or protect D.W.; and die claims of negligent infliction of emotional distress, child endangerment, and civil conspiracy failed as a matter of law. D.W. withdrew his claims for negligent infliction of emotional distress and child endangerment, but responded on his claims of negligence and civil conspiracy, stating summary judgment was improper.
District Court’s Ruling
The district court granted Carol’s motion for summary judgment on all counts. The court stated and held:
“Plaintiff has filed several counts against the defendant Carol Bliss. These counts are based upon three separate duties: one, that Carol Bliss was entrusted with the care of the plaintiff and that this created a duty which was breached by her failing to stop her husband from having sexual relations with plaintiff, two, that as co-owner of the property (house) she has a duty to warn licensees of dangerous conditions which exist on the property, and she failed to malee such warnings, and third, that she conspired with her husband to cause harm to the plaintiff by use of marital funds to hire attorneys who defamed plaintiff by their communications.
“The Court has examined each of the cases cited in the parties’ briefs, and after said review does find that the Bauswell v. Mauzey, 916 F. Supp. 787, which was decided by Judge Van Bebber in 1996 does correctly set out the law of Kansas in this area, and application of Bauswell convinces this Court that Carol Bliss is entitled to summary judgment as to all claims against her. Simply the Court finds that no duty existed in this case that could be breached, and therefore no liability can be placed on Carol Bliss. Both the claims as to ‘special relationships’ require that Carol Bliss be in charge or control of either her husband or the plaintiff. No facts suggest this to be the case. Plaintiff was the guest of Mr. Bliss and even if the court finds that Carol Bliss knew of the sexual acts with the other men some 10 years before, the Bauswell case makes it clear that this does not create duty, unless the special relationship exists.
“Further, no facts are present which indicate that Carol Bliss communicated any statements or writings to anyone which can be the basis for the defamation claim. Mere use of marital funds to employ her husband’s attorney cannot rise to the level necessary for defamation or civil conspiracy.”
Court of Appeals’ Ruling
D.W. appealed to the Court of Appeals, contending Carol owed a duty to him while he was in the Bliss home and that sufficient facts existed to establish that Richard’s acts were foreseeable to Carol.
Carol argued there was no special relationship between her and Richard or D.W. to give rise to a duty to warn D.W. and that Richard’s conduct was not foreseeable by her.
The Court of Appeals’ opinion recited our well-known standard of review of summary judgment motions and the necessity in negligence actions to show the existence of a duty, and then examined whether a duty existed. The Court of Appeals’ opinion quoted Restatement (Second) of Torts § 315 (1964), which stated there was no duty to control the conduct of a third person unless a special relationship existed that imposed a duty to control the third person’s conduct, or a, special relationship existed between the actor and the other that gave the other a right to protection. The opinion stated noné of the relationships as set forth in Restatement (Second) of Torts §§ 316-19 existed under these facts, “i.e., the relationship between Carol and Richard did not require Carol to control Richard’s sexual conduct with D.W.” D.W. v. Bliss, No. 91,247, unpublished opinion filed July 30, 2004, slip op. at 9.
The Court of Appeals’ opinion then noted comment (c) to § 315 referred to § § 314A and 320 and stated: “The only section which comes close to applying to the relationship between Carol and D.W. is § 314A(3), which states: ‘A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.’ ” Slip op. at 9. The opinion observed there was no evidence Carol held her residence open to the public but notes Restatement (Second) of Torts § 314A, comment b stated the specifically listed relations “ ‘are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found.’ ” Slip op. at 9.
The Court of Appeals next noted the distinction between licensees and invitees had been abolished by Jones v. Hansen, 254 Kan. 499, 509, 867 P.2d 303 (1994). The court then stated D.W. was at least a licensee and concluded: “Therefore, Carol owed D.W. a duty to protect him from defective or dangerous property conditions.” Slip op. at 10. Thus, the opinion equated Richard with a partially concealed defective stairwell.
The Court of Appeals’ opinion quoted Nero v. Kansas State University, 253 Kan. 567, 584, 861 P.2d 768 (1993), stating: “ Trior similar acts committed upon invitees furnish actual or constructive notice to a landowner.’ ” Slip op. at 10. The opinion then stated the Nero rule should apply to social guests and concluded: “[I]f it was foreseeable that Richard would sexually abuse D.W., Carol had a duty to exercise reasonable care to protect D.W.” Slip. op. at 11.
The opinion held a genuine issue existed as to whether Carol knew about Richard’s sexual relationships with A.M. and G.S., making this a fact question as to whether Richard’s criminal conduct should have been foreseeable to Carol. The Court of Appeals then held summary judgment was inappropriate. Slip op. at 13.
Carol’s Petition for Review
Carol’s petition for review argues a special relationship is not established by saying the facts “ ‘[come] close’ ” to those required by the Restatement. She contended that equating Richard with a defective and dangerous property condition was legally incorrect. Carol stated she did not have the right to control Richard’s usage of their jointly owned home. Carol pointed out she never had custody and control of D.W., who came into the Bliss home only on Richard’s invitation. She contended her situation was similar to Gardin v. Emporia Hotels, Inc., 31 Kan. App. 2d 168, 172, 61 P.3d 732, rev. denied 275 Kan. 963 (2003), where the relationship between the plaintiff and the motel was “too far removed” to impose a duty upon the motel. Carol argued that under the Court of Appeals’ reasoning, there would be no end of the duties a wife would owe for her husband’s criminal actions so long as they occurred in a residence they jointly owned.
We granted Carol’s petition for review.
Standard of Review
The standard of review of grants of summary judgment is well known and often stated. K.S.A. 60-256(c) teaches us a party is entitled to summary judgment if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” We have further said:
“ ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. 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. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]’ ” Exploration Place, Inc. v. Midwest Drywall Co., Inc., 277 Kan. 898, 900, 89 P.3d 536 (2004) (quoting Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 [2002]).
However, as McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991), noted: “The existence of a legal duty is a question of law to be determined by the court.” We have unlimited review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996).
Special Relationships, Duty to Warn, Premises Liability
We must first determine if there is a special relationship between Carol and Richard or Carol and D.W. giving rise to Carol’s duty to warn D.W. of Richard’s propensity to commit criminal child abuse.
In doing this, we must first recognize there was no evidence of any prior criminal acts by Richard. Richard’s last involvement with G.S. stopped in 1990, 8 years prior to the acts involving D.W.
The necessity of proving the existence of a duty is based on the requirements of establishing negligence. In Williamson v. City of Hays, 275 Kan. 300, 311, 64 P.3d 364 (2003), we said: “ ‘In order to establish negligence, a plaintiff must prove the existence of a duty, a breach of that duty, an injury, and proximate cause, that is, a causal connection between the duty breached and the injury suffered.’ [Citation omitted.]” The necessity of establishing existence of a duty is essential, for without a duty there can be no breach to support D.W.’s claim. See Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).
Generally, an actor has no duty to control the conduct of a third person to prevent that person from causing harm to others unless there is a special relationship between the actor and the third party or the actor and the injured party. Restatement (Second) of Torts § 315 (1964); Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988). As we said in Nero v. Kansas State University, 253 Kan. at 571-72:
“As far back as 1983, this court, speaking through Justice McFarland, stated:
‘Although this court has never formally adopted ... § 315, ... we discussed the concept of special relationship in Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982). . . . We observed a special relationship or specific duty has been found when one creates a foreseeable peril, not readily discoverable, and fails to warn. 231 Kan. at 364.’ Durflinger v. Artiles, 234 Kan. 484, 499, 673 P.2d 86 (1983).”
The Restatement (Second) of Torts § 315 (1964) states:
“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 explains:
“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.”
Our prevailing rule in Kansas is that in the absence of a “special relationship,” there is no duty of an actor (Carol) to control the conduct of a third person (Richard) to prevent harm to another (D.W.). As was noted in C.J.W. v. State, 253 Kan. 1, 8, 853 P.2d 4 (1993), there may be special relationships giving rise to a duty to control in situations described in Restatement (Second) of Torts between a parent and child (§ 316), master and servant (§ 317), persons in charge of one with dangerous propensities (§ 319), and persons with custody of another (§ 320). We have a number of appellate decisions involving these sections of the Restatement. Some have helpful language, but many involve governmental agencies as the “actor” and are clearly different factually from our situation.
We do have a trilogy of Kansas cases involving health care professionals as the actors and § 315 duties of control in issue.
In Boulanger v. Pol, 258 Kan. 289, 307, 900 P.2d 823 (1995), we held a psychiatrist did not have a duty to control or warn of the actions of a voluntaiy patient where the third party (plaintiff) was aware of the potential danger. Calwell v. Hassan, 260 Kan. 769, 925 P.2d 422 (1996), involved a claim by an injured bicycle rider against a physician who was treating the driver of a car who fell asleep and hit the plaintiff. We held no special relationship existed that would impose a duty on the defendant physician under § 315, and further no duty was owed from the defendant physician to the injured plaintiff under § 324A of the Restatement (Second) of Torts. 260 Kan. at 789.
The third case, Hesler v. Osawatomie State Hospital, 266 Kan. 616, 971 P.2d 1169 (1999), involved claims against individual physicians and nurses and the State Hospital where a patient on a temporary off-grounds pass riding with his mother in a car grabbed the steering wheel of the car, causing it to veer into the path of the vehicle occupied by the plaintiffs. Here there was evidence of prior dangerous propensities of the patient toward himself but no express threat to any other parties, including the plaintiffs.
Justice Abbott, writing for the Hesler court, noted the review in Boulanger of cases involving § 315 and relied on Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, cert. denied 525 U.S. 964 (1998), where we held no duty existed under § 315 to warn the third party (Stephanie Schmidt) about the dangerous propensities of a parolee in the absence of an express threat. The Hesler opinion states: “Even if this court found that a special relationship existed, [which it did not] the question of whether the duty to control extends to a duty to warn potential victims would remain.” 266 Kan. at 630.
Although the actor was a school district and not an individual, in Beshears v. U.S.D. No. 305, 261 Kan. 555, 566, 930 P.2d 1376 (1997), we held no duty was owed from a defendant school district to the minor plaintiff for injuries occurring off school premises and after school hours. Justice Six relied on the following quote from Calwell: “ ‘We have found a duty owing under § 315(a) only in situations in which the party owing the duty did have the ability or right to control the third person causing the harm.' ” 261 Kan. at 561. We held U.S.D. 305 had neither the ability nor the right to control the plaintiff or the third person causing the harm.
The trial court and the Court of Appeals found no duty on the part of Carol to control Richard. Nor do we. There is no basis for liability here under the general principle of Restatement (Second) of Torts § 315(a).
However, § 315(b) speaks of the existence of a special relationship between the actor (Carol) and the other (D.W.) which gives to the other a right of protection. This points us to §314A of the Restatement (Second) of Torts, which in applicable part states:
"§ 314A. Special Relations Giving Rise to Duty to Aid or Protect
....
“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.”
This is an exception to the general rule of § 314 relating to the “Duty to Act for Protection of Others,” which states: “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
As comment (a) to § 314 teaches us, the above general rule should be read with the other sections to follow. We therefore look to § 314A(3), which, when read explicitly, would not impose upon Carol (the actor) any duty to members of the public (D.W.).
In the first place, Carol never held her home open to members of the public. In addition, the record in our case is clear that D.W. never entered the Bliss home in response to Carol’s invitation. Richard was always the invitor of D.W., who characterized his relationship with Carol as nonexistent.
At this point, it would be logical to hold § 314A(3) is simply not applicable to our facts. However, the Court of Appeals’ opinion points to the caveat to § 314A which states, “[t]he Institute expresses no opinion as to whether there may not be other relations which impose a similar duty,” and notes the distinction between licensees and invitees has been abolished in Kansas. The Court of Appeals’ opinion then applied the rule that “the occupier of land owes a duty of reasonable care under the circumstances to all entrants on the property who are present with the occupier’s consent.” Jones, 254 Kan. at 509; D.W., slip op. at 9-10.
The Court of Appeals next suggests that Carol owed D.W. a duty to protect him from a defective or dangerous property condition; equates Richard with a partially concealed stairwell; and sets forth the quote from Nero, 253 Kan. at 584, that “[p]rior similar acts committed upon invitees furnish actual or constructive notice to a landowner.” According to the Court of Appeals, this made the foreseeability of Richard sexually abusing D.W. a fact issue to be determined by a jury and requiring summary judgment in Carol’s favor to be reversed.
There are numerous problems with this analysis. First, the actual relationship, or lack thereof, between Carol and D.W. is directly contradictory .to the specific language of § 314A(3). Our facts are simply not applicable to § 314A(3).
Next, the caveat to § 314A about the relationships specified not being intended to be exclusive is utilized to create a new duty on behalf of a wife, resulting in legal responsibility for the criminal acts of her first-time offender husband. If we apply the Restatement caveat in this manner, we would be rewriting the Restatement as we wish it to read without limitation.
• It is not logical to create- liability when clearly distinguishable facts are only “close” to what is necessary to establish a special relationship. We have, in all our special relationships/duty cases, followed the outlines of the Restatement, and to judicially create responsibility based on the marriage relationship would create a “slippery slope” of unlimited possibilities for family liability that would have no practical stopping point. See Gritzner v. Michael R., 235 Wis. 2d 781, 797, 611 N.W.2d 906 (2000), for a discussion of the “slippery slope” problem in such a holding.
Equating the acts of a husband to a “defective and dangerous property condition” has the effect of estabhshing the existence of a duty dependent upon the relative degree of harm to a plaintiff. This we have never done despite the tragedy imposed on victims in cases such as Hesler, 266 Kan. 616; Schmidt, 265 Kan. 372; Beshears, 261 Kan. 555; and Colwell, 260 Kan. 769.
However, we recognize there is a special relationship between possessors of land and their licensees that may lead to premises liability. See Jones, 254 Kan. at 509; Nero, 253 Kan. at 572. This is a readily accepted theory of legal liability in Kansas that we must consider. D.W.’s counsel most strongly relied on Jones and Nero and argued they must be applied in ibis case.
Our Kansas law on premises liability underwent a change in Jones, where we ekminated the historical distinction between duties owed to licensees and invitees and held: “The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances.” 254 Kan. at 509.
In Gragg v. Wichita State Univ., 261 Kan. 1037, 934 P.2d 121 (1997), premises liability was in issue, as was the relationship of the parties. The plaintiffs were the heirs of Barbara Gragg, who was shot and killed by a stranger, Anthony Scott, at a 1993 fireworks display held on the campus of Wichita State University (WSU). Additional defendants were the sponsors of the Independence Day celebration. In upholding summary judgment for all the defendants, §§ 314A(3), 318, and 344 of the Restatement (Second) of Torts were considered. We held that none of the sponsors were possessors or in control of the premises or had violated any duty to Gragg. 261 Kan. at 1045-47. As to WSU, we held that the Graggs failed to show, as a matter of law, that a special duty existed on behalf of WSU to protect Gragg from the unanticipated and unexpected attack by Scott. 261 Kan. at 1057.
The Graggs had attempted to place WSU in the same shoes as Kansas State University (KSU) was in Nero, just as D.W. does here. Nero is clearly distinguishable here for, as we said in Gragg: “Nero’s holding ... is more basically represented as follows: ‘KSU is a landlord furnishing housing to its students in competition with private landlords. It owes a duty of reasonable care to its tenants.’ ” 261 Kan. at 1053.
Nero is, in reality, a landlord and tenant case, and the duty of care involved was that of a third party known to KSU to have recently been charged with rape. This is totally different from the relationships in our case. D.W. was not a tenant. The record, read most favorably to D.W., shows Carol had no knowledge that Ri chard had ever violated any criminal law. Richard’s sexual involvement with an adult had stopped 8 years before he met D.W. Our facts are totally different than Nero. Nero is not sustainable audiority for estabhshing a special relationship imposing a duty on Carol to warn D.W. of potential danger.
In considering premises liability, we held in Brock v. Richmond Berea Cemetery Dist., 264 Kan. 613, 620, 957 P.2d 505 (1998):
“Before a landowner may be held hable for an injury resulting from a dangerous condition, however, the plaintiff generally must show that the defendant had actual knowledge of the condition or that the condition had existed for such a length of time that in the exercise of ordinary care the landowner should have known about it. [Citation omitted.]”
The suggestion that Richard is to be equated with and considered to be “property” or a “dangerous condition” in order to give rise to premises liability, while creative, has no support in reported Kansas cases.
A similar argument was made in Hackett v. Schmidt, 630 So. 2d 1324, 1328-29 (La. App. 1993), where it was held a wife could not be held responsible under a “premises liability” theory for her husband’s negligent or intentional acts in allegedly sexually molesting a visiting child, inasmuch as the husband was not “property” and there was no special relationship between the wife and the child. In Hackett, the husband had engaged in sexual misconduct with minor females 15 years earlier. This fact was known to the wife, and the plaintiffs argued she should be responsible for the husband’s subsequent unexpected conduct.
The Hackett court ruled there was no special relationship and no duty to warn. In response to a “premises liability” theory raised on oral argument, the Louisiana court said:
“The Hacketts argued that Mrs. Schmidt should be hable for failing to warn about or prevent the abuse in the same way that she would [be] hable for failing to warn about or prevent an injury caused by the existence of a hole in the floor of her home or tire presence of a dog on the premises. However, this situation cannot be likened to a premises liability situation, where the owners of the property may be strictly liable for injuries caused by defects in their property. Mr. Schmidt is not Mrs. Schmidt’s property.” 630 So. 2d at 1328-29.
Another case which denied application of premises liability is Eric J. v. Betty M., 76 Cal. App. 4th 715, 90 Cal. Rptr. 2d 549 (1999), where the former girlfriend of a parolee, whose 8-year-old son had been sexually molested by the parolee, brought suit against members of the parolee’s family, alleging they had failed to inform her of the parolee’s prior conviction for felony child molestation and, also, that acts had occurred on premises owned by family members.
In Eric J., the family members knew of the parolee’s criminal convictions, but (1) this was not deemed sufficient to require liability under the theory of premises liability as no relationship existed between the harm sustained and the premises where the molestation occurred, and (2) family members were not in a special relationship with the girlfriend and did not owe a duty to inform her about parolee’s criminal past or warn her of potential danger. 76 Cal. App. 4th at 726-28.
In discussing premises liability, the Eric J. court distinguished a case relied on by the plaintiff, Pamela L. v. Farmer, 112 Cal. App. 3d 206, 169 Cal. Rptr. 282 (1980), as not being based on premises liability. The wife of a sexual offender there was held liable for offenses he committed because she had invited his victims onto their property, thus, in effect, procuring them for him. Eric ]., 76 Cal. App. 4th at 729. The Eric J. court said the parolee had been returned to society, could not be the equivalent of a “brute beast without the capacity to repent,” and held his presence on the property could not be considered a dangerous condition of the property. 76 Cal. App. 4th at 725. Thus, there was no basis for premises liability. 76 Cal. App. 4th at 729-30.
As to Eric J.’s general negligence argument, the California court said upholding such a claim would require the court to abandon its long-time rule against liability for mere nonfeasance. There was held to be no special relationship, and the court would not overturn the “no duty to aid” rule, which it held, under their facts, would create intolerable conflicts of interests within families. 76 Cal. App. 4th at 729-30.
The district court in our case, in granting summary judgment to Carol, noted that even if she knew of her husband’s sexual acts with other adult men some 10 years previously, the holding of Bauswell by and through Bauswell v. Mauzey, 936 F. Supp. 787 (D. Kan. 1996), precluded liability. There was no mention of “premises liability” in the Bauswell case, where children, by and through their mother, brought a negligence action against a husband and wife and alleged the wife had a duty to prevent the husband from molesting the children.
Even though actual knowledge of previous sexual abuse by the husband was alleged, Judge Van Bebber, in granting summary judgment to the wife based on the husband’s actions, first noted that whether a duty exists is a question of law and that the wife maintained there, was no special relationship between her and her husband as that term is defined in Restatement (Second) of Torts §§ 317-320. The Bauswell plaintiffs had argued the husband was acting as his wife’s servant in a babysitting arrangement.
After holding no case law had been cited to support the theory that the relationship of wife and husband is synonymous with that of an employer and employee to give rise to § 317 duty and resulting liability, the Bauswell decision continued:
“There also is no basis in the record to support a special relationship between the defendant and her husband based upon § 319, the duty of those in charge of a person having dangerous propensities. The plaintiffs do not allege that the defendant had ‘charge’ of Clifford Mauzey.” 936 F. Supp. at 789-90.
Bauswell is good authority for Carol’s argument that she cannot be in control of or in charge of Richard. The decision does not relate directly to D.W.’s premises liability claim except to bolster the fact that Richard cannot be considered a dangerous condition under Carol’s control. Where this court has considered the duty to control, we have required a finding that the person charged with the duty actually have the ability to control the third person’s conduct. Beshears, 261 Kan. at 561; Colwell v. Hassan, 260 Kan. 769, 783, 925 P.2d 422 (1995).
Richard, as a cotenant of the Bliss home, had an undivided right to possession and control of the property. See Fry v. Dewees, 151 Kan. 488, 493, 99 P.2d 844 (1940). Carol had no right to restrict Richard, as co-owner, from inviting D.W. on to the properly. Ex tension of her ownership interest into responsibility for Richard’s criminal actions is unwarranted.
There are a number of cases of the nature we face here that have been decided around the country. See Gritzner, 235 Wis. 2d at 803 n.12. Pamela L., 112 Cal. App. 3d 206, is cited as a case allowing recovery. Eric J., 76 Cal. App. 4th 715, is noted to be a case not allowing recoveiy. We have previously discussed both cases. The other cases mentioned in the Gritzner footnote are factually different, with recovery being allowed where the wife had actual knowledge of her husband’s sexual abuse. J.S. v. R.T.H., 155 N.J. 330, 714 A.2d 924 (1998). Recoveiy was also allowed against a grandmother for failure to protect her granddaughter from a known risk of sexual abuse by the grandfather. Doe v. Franklin, 930 S.W.2d 921 (Tex. App. 1996).
The cases cited in the Gritzner footnote where recoveiy was not allowed included Doe v. Goff, 306 Ill. App. 3d 1131, 716 N.E.2d 323 (1999); H.B. v. Whittemore, 552 N.W.2d 705 (Minn. 1996); and T.A. v. Allen, 447 Pa. Super. 302, 669 A.2d 360 (1995). Although decided on a statute of limitations issue, no recoveiy would have been allowed under an analysis in Chaney v. Superior Court of Los Angeles County, 39 Cal. App. 4th 152, 46 Cal. Rptr. 73 (1995), which was not included in the Gritzner footnote.
There is obviously no issue of negligent supervision in our case, as Carol had little contact with D.W. and he was never under her care, custody, or control. Negligent supervision could not be a basis for the finding of a duty to warn.
Conclusion
Under our clear Kansas precedent, an actor (Carol) has no duty to control the conduct of a third person (Richard) to prevent that person from causing harm to others (D.W.) unless there is a special relationship between the actor and the third party or the actor and the injured party.
There was no special relationship between Carol and Richard or between Carol and D.W., giving rise to a duty to warn D.W. of the unknown and unexpected criminal act on Richard’s part.
The facts in this case do not give rise to premises liability on Carol’s part for Richard’s criminal acts for the many reasons previously set forth in this opinion.
In the absence of a duty, there can be no breach of a duty and no basis for a negligence cause of action.
With no duty being shown, we need not discuss foreseeability.
The Court of Appeals is reversed. The district court is affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
This was an action to quiet title to a tract of land, in which judgment was given against the plaintiff, who appeals.
Eva Donaldson, the plaintiff, executed a deed purporting to convey a tract of land in Cheyenne county to the defendant, John Brewer, a half brother of the plaintiff, and whether or not there was a delivery of the instrument, is the question which divides the parties. The mother of the plaintiff, Mrs. .Brewer, died owning personal property and real estate. Before her death she had arranged for the preparation of a will giving ' her personal property in equal shares to the plaintiff and defendant, her step-son, who had been residing with Mrs. Brewer, and also to give him the tract of real estate in question, but she died before the will was executed. The plaintiff, iwho was the only heir of her mother, had been residing with her husband in Wyoming for two or three years before the death of her mother. The defendant, not being an heir of Mrs. Brewer, acquired no interest in her estate, but within a day or two after her mother’s death, the plaintiff expressed a purpose to carry out the wish of her mother and proceeded to do so by transferring to the defendant one-half of the personal property. She also informed him that as it appeared to have been her mother’s purpose to give him the tract of land involved, she would give effect to that purpose by a conveyance of the land to the defendant. .Subsequently she procured a deed tó be prepared, and afterwards executed it and formally acknowledged its execution. There is a dispute in the testimony as to the directions given by her to the scrivener in respect to the delivery of the dee*. She testified that after signing it the instrument was left With the scrivener for some writing or indorsement thereon, and at the same time she discussed with him whether he should forward it to her husband in Wyoming for signature, or she should do so herself, telling him that her purpose was to transfer the land if her husband would give his consent to the transfer, and not otherwise. She testified that the defendant brought the instrument to her on the day it was executed, and shortly afterwards she sent it to her husband, who declined to sign it, and for that reason the deed had never been delivered. On the other hand, there is the testimony of several witnesses to the effect that the plaintiff, after executing the deed, .directed the scrivener to deliver it to the-defendant; that within a few hours afterwards she met the defendant on the street, and told him that the deed had been executed and was in the hands of the scrivener ready for him, and that he might go and get it. Within a few minutes after this information was given him, the defendant went to the office of the scrivener, and the deed was handed to him in accordance with the plaintiff’s directions. There is testimony, too, that when the deed was prepared she did not request the scrivener to name her husband as one of the grantors or to provide for an acknowledgment of his signature, but that after the delivery of the deed, when defendant learned that the husband would still have an incohaté interest in the land, he desired to obtain that interest, and procured the plaintiff to forward it to her husband for his signature. This she did within a few days, but instead of signing it, he caused it to be burned.
We have here only a question of fact — Was there an unconditional delivery of the deed? As has been repeatedly decided, delivery is largely a matter of intention, and the test is: Did the grantor by her words and acts evidence an intention to part with control of the instrument, and regard it as a present, operative, and binding conveyance? (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607; Doty v. Barker, 78 Kan. 636, 97 Pac. 964; Zeitlow v. Zeitlow, 84 Kan. 713, 115 Pac. 573.) The evidence of the defendant, although contradicted, fairly tends to support that theory. If the plaintiff, when she caused the deed to be given to the defendant, intended to divest herself of title, the delivery was complete, and the fact that defendant afterwards handed it to her to obtain the signature of her husband, so as to accomplish a transfer of his interest, did not defeat the delivery made, nor operate as a surrender of the title she had transferred. (Good v. Williams, 81 Kan. 388, 105 Pac. 433; 13 Cyc. 563.) Plaintiff insists that as the transfer claimed by the defendant is a gift, the proof of delivery should be stronger and more convincing than in case of a purchase on a consideration. It is claimed by defendant that the payment of certain charges against the estate of Mrs. Brewer and the land, paid by him with the knowledge and consent of plaintiff, constituted a sufficient consideration; but, treating the transfer as a pure donation, it must still be held that the evidence was sufficient to support the finding and judgment of the court. Granting that a higher character of proof was necessary, it was the province of the court to determine whether it was sufficiently clear and convincing to prove a delivery of the gift. The fact that there was strong contradictory evidence cannot overthrow the finding of the trial court based, as we have seen, on evidence which of itself established the fact of delivery.
Judgment affirmed. | [
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|
The opinion of the court was delivered by
Dawson, J.:
This action seeks to charge the defendant, a railway-terminal bridge company, with the cost of making certain changes in the signal system used on and about the railway bridge which crosses the Missouri river at Leavenworth. The terminal company owns the bridge and leases it to certain railways which are defendants herein. The plaintiff owns a railway running north and south in close proximity to the west end of the bridge. In 1892, and again in 1898, the plaintiff undertook the obligation of keeping the bridge signal system in good condition and maintaining it in proper repair. The defendant owner of the bridge agreed to pay the bills therefor as rendered, and the tenant railways using the bridge guaranteed the prompt payment of the plaintiff’s bills for these services.
During the years which have passed since the bridge and its signal system were constructed, a systematic movement among. railway men for the safer operation of railroads has grown up. This is familiarly known as the “Safety First” policy of railroading. Railway companies have committees to devise and suggest the need of improvements to lessen or avoid railroad accidents. These committees are usually composed of the railway superintendent and a railroad man from every branch of the operating service — a roadmaster, a master mechanic, a trackman, engineer, fireman, conductor, brakeman, switchman, car man, and a shop man. One of these committees noticed that the signals on this bridge and at its western approach were too close to the track; they learned that an employee had been struck and knocked off a freight car and injured by the semaphore blade of one of the signals.
The matter was brought to the attention of the plaintiff, which was charged with the duty of keeping the bridge signal system in good condition. It set one or more of these signals back from the track, and changed one or two others from high signals to low or “dwarf” signals, in the interest of safety and in accordance with present-day ideas of good railroading. For this outlay, plaintiff submitted a bill of costs to the defendant owner of the bridge; this the latter refused to pay.
The plaintiff brought this action, and obtained judgment against the owner of the bridge and against the tenant railways as guarantors that the plaintiff’s expenses on the signal system of the bridge would be promptly paid by the bridge company.
The bridge company appeals, contending that it is not properly chargeable with the cost of relocation of these signals, and that its liability is limited by its contract to costs of maintenance ; and that the word “maintenance” is defined and restricted in the contract of 1898 to mean “the necessary expense incurred in making repairs and renewals to said interlocking switch and signal plant.”
The bill of expenses for which payment was demanded was for “labor and material in repairing, renewing, relocating and maintaining interlocking plant,” etc. Defendant may be technically correct in contending that the relocation of the signal system was not “maintenance” within the restricted definition set down in the contract. But this court is of opinion that the relocation of the signals for the safety of railway trainmen was clearly within both the letter and the spirit of that provision of the contract which required the plaintiff to keep “the bridge signal system in good condition.” And this expense was to be borne by the owner of the bridge. Moreover, if there had been no specific provision in the contract covering the subject, the defendant owner of the bridge would be bound to make the necessary changes to keep the signal system in good condition, and that would include a condition of safety; and since the defendant had chosen to select the plaintiff as manager and custodian of its bridge signal property, it was bound to reimburse the plaintiff for the reasonable and necessary expenditures made in the proper discharge of its duty. A point is urged that the signal system was installed many years ago in accordance with the plans of the plaintiff’s chief engineer, and with his approval. That does not alter the case. Perhaps the signal system was adequate and safe at that time. Doubtless it was as good as railway knowledge and experience at that time could suggest. But with the lapse of years railway signal engi neering has progressed the same as other arts and sciences, and owners of railway property must keep up with the reasonable demands suggested by new ideas for the better security of human life; and necessary expenses for such new and improved methods and contrivances are merely one of the burdens attendant on the ownership of public-utility property. (Railway Co. v. Henry, 57 Kan. 154, 45 Pac. 576, 60 Kan. 322, 46 Pac. 486; Water Co. v. City of Wichita, 98 Kan. 256; 259, 158 Pac. 49.) Moreover, it was shown that railway rolling stock has' considerably increased in size and width since the signal system was first installed, and this would require the signals to be set farther from the track than formerly.
The plaintiff questions the competency of evidence given by experienced railway men who testified that a signal system placed so close to the railway tracks as to cause trainmen to be knocked off the cars was not in good condition. This evidence was competent. (Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356; Baillod v. Grain Co., 93 Kan. 775, 782, 783, 145 Pac. 895; Bushey v. Coffman, ante, p. 209, 173 Pac. 341, syl. ¶ 3. See, also, discussion on opinion evidence of expert railway men, in Railway Co. v. Railway Co., ante, p. 1.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
These actions involve the'validity of certain taxes levied in 1913 and 1914 for the purpose of building a court-house and jail in Cowley county. The actions also involve the validity of certain bridge taxes levied in that county in 1914. In all the actions, judgment was rendered for the defendants, so far as the court-house and jail taxes were concerned; and in case No. 21,657, Bush, Receiver, etc., v. The Board of County Commissioners et al., judgment was rendered for the plaintiff, so far as the bridge taxes were concerned. Each of the plaintiffs appealed from the judgment against it, and the defendants appealed from the judgment against them in case No. 21,657.
The validity of the court-house and jail taxes levied in 1913 and 1914 depends on the construction of chapter 164 of the Laws of 1905 and of chapter 99 of the Laws of 1909. The parts of the law of 1905 material in the consideration of the questions presented are sections 1, 2, and 3, which read as follows :
“Section 1. That the board of county commissioners of Cowley county, Kansas, is hereby authorized and directed to erect upon the public square in the city of Winfield, Cowley county, Kansas, a sheriff’s residence and county jail combined, and a court-house, with ample and sufficient county offices therein, and to equip and furnish said buildings for permanent use as jail, court-house and county offices; and to sell, dispose of and remove from the public square the old court-house and jail now thereon situate and all other buildings now situate on said public square therefrom; and the funds derived from such sale shall be turned into “the county building fund,” hereinafter mentioned and described.
“Sec. 2. The aggregate cost for the erection of said sheriff’s residence and jail shall not exceed the sum of twenty thousand dollars, and the'aggregate cost for the erection of said court-house and county offices shall not exceed the sum of sixty thousand dollars.
“Sec. 3. The said board of county commissioners is hereby authorized and directed to levy an annual tax upon all of the taxable property subject to taxation in said county of Cowley to pay for the erection, equipment and furnishing of said sheriff’s residence, jail, court-house, and county offices; said tax not to exceed the sum of twenty-five cents on the hundred dollars of taxable property as returned by the assessor- in any one calendar year. Such tax shall be -levied each year until a sum shall have been levied and collected sufficient to aggregate the amount necessary for the building and equipment of the jail and court-house aforesaid; provided, that in no case shall the total taxes levied for this purpose exceed the sum of eighty thousand dollars. The taxes levied and collected under this act shall be kept in a separate fund, to be known and designated as “the county building fund,” and -the money raised thereby shall be used exclusively to pay for the erection of said county jail and courthouse.”
The material part of chapter 99 of the Laws of 1909 is the proviso at the end of section 1, which proviso reads as follows:
“Provided, that in any county in this state where there has heretofore been an appropriation made for the purpose of erecting a court-house or other county buildings and the work of erecting said court-house of [or] other county buildings has been commenced, and in the opinion of the county commissioners of such county the amount appropriated is not sufficient to erect and complete the court-house or other county buildings suitable for the needs of such county, then the county commissioners, at any regular or special session called for that purpose, may appropriate, without formality of petition or vote, an additional sum not to exceed forty per cent, of the original appropriation, for the purpose of erecting and completing said court-house or other county buildings, and levy a tax upon all the taxable property in said county to raise said additional amount; provided, that not to exceed one-third of said additional amount shall be raised in any one year.”
Under these laws, the defendants levied'and collected taxes and paid out the funds this received in building the court-house and jail, in all amounting to $136,950.24. The judge who tried the cause, in an opinion filed by him, states that $121,239.62 of this amount was principal and that the remainder was interest.
The plaintiffs contend that the -defendants had no authority to levy or collect any taxes except the $80,000 authorized by the law of 1905. The defendants argue that they were authorized to levy and collect not only that amount, but also to levy and collect the amount named in the proviso at the close of section 1 of the act of 1909. The plaintiffs insist that the act of 1905 was special, and that the act of 1909 was general. They invoke that principle of statutory construction that a general act will not repeal, by implication, a prior special one applicable to the same matter. They argue that the act of 1909 did not enlarge, amend, or repeal the act of 1905; that Cowley county was not authorized to operate under the law of 1909; and that all taxes in excess of $80,000 levied in Cowley county,for building the court-house and jail were illegal and void.
The effect of a general statute upon a special or local one has been before this court a number of times. Sometimes the general statute has been held to repeal the special or local act, and at other times, under different circumstances, it has been held otherwise. In Howard v. Hulbert, 63 Kan. 793, 66 Pac. 1041, this language was used:
“While the rule is that a general act will not repeal by implication a prior special one applicable to the same matter, yet this is not g.n invariable rule; and where, from the general act, it is clearly apparent that the legislature intended it to apply to the matter theretofore included in the terms of the special act, it will repeal such-special act by implication.” (syl. ¶1.)
In that case the court held that the special act was repealed by the general statute. Following that principle, a similar conclusion was reached in Topeka v. McCabe, 79 Kan. 329, 331, 99 Pac. 602. A different conclusion concerning other statutes was reached in The State v. Thomas, 74 Kan. 360, 369, 86 Pac. 499; Wilson v. Edwards County, 85 Kan. 422, 116 Pac. 614; Bank v. Reilly, 97 Kan. 817, 822, 156 Pac. 747; and Greeley County v. Davis, 99 Kan. 1, 160 Pac. 581.
In all these cases, the court ascertained the intent of the legislature as expressed in the subsequent general act, interpreted the statute according to that intent, and followed the principle that “the cardinal canon of construction, to which all mere rules of interpretation are subordinate, is that the intent, when ascertained, governs” (The State v. Bancroft, 22 Kan. 170, syl. ¶ 3) ; a rule that has been adhered to a number of times by this court. (Prohibitory-Amendment Cases, 24 Kan. 700, 719; Intoxicating-Liquor Cases, 25 Kan. 751, 763; Wenger v. Taylor, 39 Kan. 754, 757, 18 Pac. 911; Atchison County v. Challiss, 65 Kan. 179, 181, 69 Pac. 173; Railway Co. v. Lyon County, 72 Kan. 13, 15, 82 Pac. 519; The State v. Prather, 97 Kan. 513, 516, 100 Pac. 57; The State v. Pauley, 83 Kan. 456, 461, 112 Pac. 141.)
“In statutes . . . , the will of the legislature, expressed in the statute, is the law, and is to be ascertained by all legitimate methods of interpretation.” (Jones v. The State of Kansas ex rel., Atherby and Kingsbury, 1 Kan. 273, syl. ¶ 4.)
“But when the terms of a law are clear and precise, the only duty of a court is to declare the applicability of the law to any given case. When the legislature has expressed its will in plain and unambiguous language, courts áre bound to say they meant what they have clearly expressed.” (Dudley v. Reynolds, 1 Kan. 285, 289.)
“Courts . . . must seek simply to ascertain the legislative intent, and then enforce it.” (County-seat of Linn Co., 15 Kan. 500, 527.)
“It is always the rule that the meaning of a statute is to be derived from its general terms and manifest purpose.” (Gleason v. Sedgwick County, 92 Kan. 632, 635, 141 Pac. 584.)
“Where the meaning of a statute is clear there is no room for interpretation. The meaning must be ascertained from the words used. The context, the whole act, statutes in pari materia, and all extraneous circumstances which may be supposed to have affected the mind of the legislature may be taken into consideration in case of ambiguity, but the intention thus ascertained must be consistent with and fairly expressed by the words employed. To depart from the meaning expressed by the words is to alter the statute, to legislate, and not to interpret.” (Young v. Regents of State University, 87 Kan. 239, 252, 124 Pac. 150.)
The rules of statutory construction are not rules restricting the power of the legislature in passing laws; they are rules observed by-the courts in trying to ascertain what the legislature intended by the- laws that have been passed. According to the authorities cited, when that intent is ascertained, the law, whether contained in a general or a special act, must be interpreted according to that intent.
So far as Cowley county is concerned, what was the intention of the legislature as expressed in the act of 1909 ? By that act chapter 141 of the Laws of 1907 was amended so as to make it fit the situation that existed in Cowley county, and the proviso that has been quoted was added at the end of the chapter. When the law of 1909 was passed, the act of 1905 had probably accomplished all that it could accomplish. All the authority that it conferred had probably been exercised by the county commissioners. Nothing that the legislature did, or could do, could in any way affect what had been done under the act of 1905. Apparently the terms of the act of 1909 applied to Cowley county. Probably there was no other county in the state to which the proviso in the act did apply. Apparently the legis lature intended, by the amendments, to make the general law apply to Cowley county. The act of 1909 applied to all counties that came within its terms. The language used, “any county,” is broadly inclusive, and expressed the legislative intention that the law should apply to every county in which the conditions stated existed.
The question for determination is not so much, Did the act of 1909 enlarge, amend, or repeal the act of 1905 ? but rather, Did the act of 1909 authorize the county commissioners of Cowley county to appropriate an additional sum of money to complete the court-house and jail? That the legislature could authorize such additional appropriation cannot be successfully disputed. Probably a situation then existed in that county calling for legislative assistance. That assistance was given by the act of 1909. It must therefore be held that Cowley county could use the power given by that act to complete the court-house and jail.
The law of 1905 authorized the defendants to build a court-house and jail on the public square in the city of Winfield. The court-house was built on the public square, but the j ail was built on a piece of ground owned by the county across a street adjoining the public square. It is argued by the plaintiffs that the defendants had no authority to build the jail on any piece of ground except the public square, and that, therefore, the taxes levied to build it were illegal and void. This interpretation of the statute is too narrow. The plaintiffs should not be allowed to escape their share of the taxes levied to erect those buildings because of the failure to put both of them on the public square.
Did the defendants have power to levy and collect taxes to produce $112,000 to be used in erecting thé court-house and jail, and then in addition thereto, levy and collect taxes to raise $15,000 or $25,000, or any other additional amount, and with it pay interest on any part of the debt that had been contracted in erecting the buildings ?
The defendants argue “that the commissioners were authorized to expend on construction and equipment the sum of -$112,-, 000, exclusive of any interest paid on warrants.” Kelly v. Cole, 63 Kan. 385, 65 Pac. 672, is cited in support of that' argument. That case concerned refunding bondéd indebtedness. The court there held that matured interest coupons -were a part of the bonded indebtedness and could- be refunded, but held that unearned interest coupons were not a part of the bonded indebtedness and could not be refunded. That decision was rendered under a statute which authorized refunding bonded indebtedness, including coupons and judgments thereon. That statute limited the power granted when a county refunded its bonds. The statutes now under consideration limit the power of the county to appropriate money and to levy taxes. Kelly v. Cole is not applicable to the statutes now under consideration.
By the act of 1905 the cost of the sheriff’s residence and jail should not exceed $20,000, and that of the courthouse should not exceed $60,000. By that act it was provided that in-no case should the taxes levied for those purposes exceed the sum of $80,000. These restrictions constituted limitations on the .amount that could be paid for the buildings and on the amount of taxes that could be levied therefor. By the act of 1909 the county commissioners were authorized to levy a tax sufficient to raise forty per cent of $80,000. Under that act they could levy a tax to raise $32,000. The act of 1905 provided for issuing warrants and provided that they should bear interest at the rate of five per cent per annum, but the act did not authorize the levy of a tax to provide a fund, in addition to $80,000, for the purpose of paying interest. Under the act of 1905, $80,000 was the limit for interest and all other expenditures of every nature or kind. The act of 190-9 provided that an amount equal to forty per cent of the original appropriation might be appropriated to complete a court-house, or other buildings, which had been commenced, and provided that a tax might be levied to raise that forty per cent; not forty per cent and interest theron, but forty per cent of the original amount appropriated. Neither the act of 1905 nor the act of 1909 contemplated that interest might be added to the amounts therein named.
The total amount authorized by the acts of 1905 and 1909 was $112,000. The court-house ánd jail cost $136,950.24, almost $25,000 more than the law authorized. All taxes levied in excess of $112,000 were illegal and void. Under the circumstances, it is necessary that the trial court determine how much of the taxes levied for the years 1913 and 1914 was in excess of $112,000. Judgment should then be rendered in favor of the plaintiffs for the illegal proportion of these taxes.
In case No. 21,657, the defendants appeal from the judgment in favor of B. F. Bush, receiver, for certain bridge taxes levied in 1914 and paid by him under protest. Those taxes were levied under chapter 371 of the Laws_ of 1901, sections 1 and 2 of which read as follows:
“Section 1. The board of county commissioners of Cowley county is hereby authorized, in its discretion, to levy a bridge tax of not exceeding two mills on the dollar each year, to be collected as other taxes.
“Sec. 2. The fund created thereby shall be known as the “bridge fund,” and shall be used by the board for general bridge purposes.”
The receiver argues that this law was repealed by chapter 68 of the Laws of 1911, and that, therefore, no legal taxes could be levied under the act of 1901. The defendants contend that the law of 1901 has not been repealed by any act of the legislature. This presents a problem of statutory construction, similar to the one just disposed of. The authorities there cited are controlling here.
Has chapter 371 of the Laws of 1901 been repealed? When that law was enacted, section 575 of the General Statutes of 1901 provided, in substance, that when the board of county commissioners of any county having a population of more than 20,000 (Cowley county then had a population of more than 20,000) should determine that a bridge or bridges were necessary to be built or repaired, the cost of which would exceed $2,000, they should, before making the appropriation therefor, secure the consent of the qualified voters of the county. The section prescribed details for carrying its provisions into execution. That section was enacted in 1867 and was first amended in 1879. The special act for Cowley county was enacted when section 575 was in existence, and the two stood side by side as valid laws. In 1909 (Laws 1909, ch. 99), section 575 was amended in several particulars, the principal one of which raised the minimum amount to which the statute should apply. The restriction as to population was also taken off. That law was again amended in 1911, by chapter 68 of the Laws of that year. By the last act, the minimum appropriation was made $5,000, and an elaborate classification was made as to larger appropriations for larger counties. With the amendments, section 575 of the Laws of 1901 has been continuous in its operation from 1879 to the present time. The amendments changed the amounts that might be appropriated, changed the classification of the counties that might operate under it, and changed the procedure by which the money could be legally devoted to building bridges; but one general idea has continued through all the years, and that has been that for making large appropriations for building bridges it haS' been' necessary for the county commissioners to secure the consent, of the electors of their respective counties. ■ In the main, the law for building bridges has remained substantially as it was in 1901 when the special act for Cowley county was enacted. There is nothing in any of the ámendments to section 575 which indicates any intention to repeal the special law of 1901. The amendments to section 575 are no more antagonistic to the special act than was that section before it was amended. Each amendment to section 575 is just as consistent with the special act as was the original section itself. Section 575 of the General Statutes of 1901 now appears as section 719 of the General Statutes of 1915. So far as the latter section is the same as the former, the latter should be construed as a continuation of the former, and not as a new enactment. (Gen. Stat. 1915, § 10973, sub-div. 1.)
Following the declared rules for the construction of special and general statutes, the court must conclude that chapter 371 of the Laws of 1901 has not been repealed, and that taxes levied thereunder are neither illegal nor void.
The judgment in favor of the receiver is reversed, and the district court is directed to enter judgment in favor of the defendants on the cause of action involved in this appeal. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff brought suit against Will Schuetz to recover on two promissory notes. The petition was filed on the 26th of February, 1917. Garnishee summons was issued to the Farmers State Bank of Germantown, which answered that it had on deposit to the credit of Will Schuetz the sum of $1,317.80. Intervening petitions were filed by parties claiming an interest in the fund. Among these John Schuetz, the father of Will Schuetz, claimed to be entitled to the fund for .the reason that he was a partner of his son, and that the fund is the proceeds of the sale of the partnership property, and that his son had given him. checks for the amount due him, which checks had been presented to the Farmers State Bank and protested. The trial court found in favor of the intervening petitioners. This appeal is from that part of the judgment in favor of John Schuetz.
Their written agreement was in the form of a farm lease by which the father rented the farm to his son for a share of the crops. The writing contained the usual covenants of a farm lease, and in addition, an agreement that the landlord and tenant should each furnish cattle and hogs of equal value, to be placed on the farm and cared for by the tenant, the increase to be equally divided. There was also a memorandum of a separate agreement made about the same time by whieh it was understood that if either party supplied more stock in value than the other, the other was to pay him “out of his portion of the sale of the stock less 20% of his share.” There is a contention that the evidence fails to show that John Schuetz and his son were partners, but we think the trial court was correct in holding that they were partners in the'joint enterprise.
All the property owned by the partnership was sold at public sale a day or two before this action was commenced, and the proceeds were deposited in the Farmers State Bank in the name of Will Schuetz. The court took an account of the partnership affairs and found that the son owed the partnership for live stock contributed by his father, in excess of the amount contributed by himself, in the sum of $427.55, and that the partnership was indebted to John Schuetz to the amount of $846.01. As a conclusion of law the court held that the debts of the partnership were entitled to a priority in the proceeds of the sale, as against the individual debt of Will Schuetz, and that John Schuetz’ rights as a partner entitled him to judgment for the amount found to be due him from the firm. It is the plaintiff’s contention that this was error. The theory seems to be that the father had a claim against the son for these advancements, but no claim against the partnership, and that the plaintiff, who was a creditor of the son, acquired a superior lien by the garnishment proceedings. But the plaintiff could acquire by his garnishment proceedings no greater interest in the proceeds from the sale of the property of the firm than Will Schuetz, its debtor, possessed. (Rich v. Roberts, ante, p. 116, 172 Pac. 996, and cases cited in the opinion; Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210, and cases cited.) The law seems to be well settled that a partner who makes advances to a firm becomes a creditor of the firm.
“A partner who makes advancements to a firm, during its existence or in winding up its affairs, becomes, as against his copartners, a creditor of the firm. He is'not in the position of a volunteer. His interest in the firm property and his liability for its debts entitle him to make the advances, and to call on the firm and his associates for reimbursement. Moreover, this reimbursement is to be made before his associates are entitled to repayment on account of their capitals, for, as already stated, his advancement is a loan to the firm, and not an increase of its capital. After outside debts are satisfied, the advances which have been made by partners are to be repaid in full, if the -firm assets are sufficient therefor.” (Burdick on Partnership, 341.)
In Watts v. Adler, 130 N. Y. 646, it was said:
“Each partner has a right to an accounting’ from his copartner as to all dealings and transactions connected with the business of the firm, and, as the result may indicate, either to a ratable distribution of any surplus there may be after payment of the debts, or to a ratable contribution to make up the sum required to discharge the debts. Thus, all the obligations, both express and'implied, arising from the copartnership agreement, may be enforced in a convenient and effective manner, by a court having power to adapt its action to every variety of circumstances.” (p. 648.)
In Farley, Spear & Co. v. Moog, 79 Ala. 148, it was ruled in the syllabus:
“When an execution or attachment against an individual partner is levied on the partnership property, the purchaser at a sale under the levy acquires only that partner’s interest in the assets which may remain after the partnership debts have been paid and the partnership affairs adjusted; and this can only be ascertained by an account in equity.” (syl. ¶2.)
The hank acquired by its garnishment an interest only to the extent of the share of its debtor; and that share is only his interest in the balance which remains after the firm’s debts and the equities of partners are satisfied.
“Although the assets of a firm are to be applied in paying its debts to outsiders before either partner is to receive any part thereof, the individual creditors of a partner are not entitled to the same priority. They have a right to his individual interest only, and this, as has been stated repeatedly, is his ‘share of what may remain after payment of the partnership debts, and after a áettlement of the accounts between the partners.’ ” (Burdick on Partnership, 346.)
In Warren v. Taylor, 60 Ala. 218, it was held that if one partner has become more indebted to.the firm than his co-partner, his share “will stand incumbered by a lien, to make good such deficit to his copartner.” (p. 224.)
It was proper for the trial court, having before it all the interested parties, to take an accounting of the partnership affairs; and when the account showed that one of the partners was entitled, as against his partner, to be reimbursed for advances made to the partnership, the law gave him a prior lien upon the partnership property as against the individual creditor of his partner.
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The opinion of the court was delivered by
Burch, J.:
The suit was one for specific performance of an alleged oral contract between plaintiff and her sister, Mrs. F. E. Barons, deceased, by which the latter- agreed to make a will leaving all her property to the plaintiff.
Mrs. F. E. Barons, a widow, died intestate, a resident of Rice county, in August, 1914, owning -three quarter sections of land in Rooks county, two dwelling houses and a hotel in Lyons, and five or six thousand dollars’ worth of personal property. She was indebted to the extent of several thousand dollars. The defendants are F. A. Lane, administrator of her estate, S. T. Barons, her son and only heir at law, known in the family and referred to by the witnesses as “Chip” Barons, and his wife, Cora Barons.
From 1878 until her death Mrs. Barons was in the hotel business, first at Clyde, then at Concordia," and later at Lyons; for several years prior to her death she had been conducting the Interstate hotel at Lyons. Her sister, Lucy A. James, spoken of by everyone as “Aunt Lucy,” is past 77 years of age, and not strong mentally or physically; she had lived with Mrs. Barons since 1878, working in the hotels, part of the time as chambermaid or as waitress, receiving her board, clothing, spending money and a home, but no stipulated wages. She was treated as a member of her sister’s family, and for several years another sister resided in the same way with Mrs. Barons.
F. A. Lane had lived at the Barons’ hotel for a great many years and was a close friend of the family and the adviser of Mrs. Barons in many of her business transactions. While he was proceeding to close up the estate as administrator, the plaintiff, through the assistance of her friend, John F. Starkey, employed Solon T. Gilmore, á lawyer of Kansas City, Mo., who filed her claim in the probate court against the estate for $15,-032, wages alleged to have been earned in the employment of her sister in working about the hotels. The administrator filed numerous defenses to the claim, and when it came up for hearing December 2, 1915, the claim was amended to include an express as well as an implied contract for wages. The administrator was represented by A. M. French of Concordia; the heir at law, Chip Barons, was represented by Samuel Jones of Lyons; and the plaintiff appeared by Mr. Gilmore. The matter of plaintiff’s claim and the making of some provision for her support were discussed by the probate judge and the attorneys, and the hearing was passed until the next day to see if the parties could agree upon a settlement. On February 3 a written agreement of settlement, made in triplicate, was signed by F. A. Lane as administrator, Chip Barons and his wife, and by Aunt Lucy, by which two dwelling houses and the Interstate hotel at Lyons were to be conveyed by the heir at law to F. A. Lane as trustee for Aunt Lucy; so much of the proceeds of the real estate as was necessary was to be used to provide her a home, board, clothing, medical care and attention as long as she lived, and at her death the trustee was to turn the property over to Chip Barons. The probate judge was advised of the terms of the settlement, and it was presented to and approved by him; a journal entry was recorded showing that the court found the settlement was equitable and just between the parties, and judgment was rendered confirming the settlement and barring Aunt Lucy from all other claims against the estate. . The trust deed was executed, and the administrator pro ceeded to carry out the'terms of the trust. He borrowed money on some of the property, paid taxes, made numerous payments of cash to' the plaintiff at her request, furnished her board, and paid her accounts at the stores for clothing and other necessities. She fell and fractured her hip, making her a permanent cripple, and she was in a hospital for ten weeks, with a special nurse when required, and was furnished proper medical care and attention.
The plaintiff became dissatisfied with the terms of the settlement, and on June 28, 1916, this suit was filed by her present attorney, charging a conspiracy between the trustee, his attorney, S. T. Barons and his attorneys, plaintiff’s attorney, Solon T. Gilmoré, and the probate judge of Rice county, with the intent to defeat her rights, and alleging that they compelled her to sign the agreement through duress, and she asked (that it be held void. She also alleged that in the lifetime of Mrs. Barons the latter had verbally promised that if she would continue with and work for her as long as she lived, Mrs. Barons would at her death will to plaintiff all the property of which she died seized. Plaintiff prayed for the specific performance of this verbal contract.
The answer was a general denial,, and a plea that plaintiff had elected her remedy when she presented her-claim for wages; that the decision of the probate court is res judicata; that she had confirmed and ratified the settlement by accepting its benefits and was estopped to deny 'its validity. The answer set out the large number of monthly payments made after the agreement was entered into, and even after the bringing of this action, and further alleged that the settlement in the probate court was equitable and just, and asked that it be held valid and binding upon the plaintiff. Upon these issues there was a trial and a judgment for plaintiff, from which defendants appeal.
The trial court finds that plaintiff made no claim to the probate court or to her attorneys that her sister had promised to make a will in her favor; that there was no conspiracy to defraud her as alleged, but that she was induced to sign the agreement solely by the threats and coercion of her attorney, Gilmore, and her weakened condition physically and mentally; and that before she signed the agreement she stated she wanted F. A. Lane to be named as trustee. The court then finds that Mrs. Barons promised plaintiff that if she would live with her and perform services in her hotels during her lifetime, she would give all her property to plaintiff by will provided she died before plaintiff, and further that plaintiff performed the services. There is a finding that the proceedings in the probate court were had without evidence being introduced, except the written agreement, and that the proceedings and judgment were based on the agreement.
There is force in defendants’ contention that plaintiff should be held bound by her election of remedies. Her claim in the probate court was predicated both upon an implied and an express contract to pay her reasonable wages for services rendered; and whether she relied upon an express contract or one raised by implication, her remedy was based upon the theory that the title to the property vested in the heir at law on the death of Mrs. Barons, subject to Mrs. Barons’ indebtedness. Her present action would appear to Jpe an inconsistent remedy, because it proceeds upon the theory that the title to all the property passed directly to plaintiff upon her sister’s death.
In Moline Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111, the plaintiff brought replevin to recover property delivered to a vendee under a conditional sale, the vendor retaining a right to elect to take the goods unsold as its own property. Creditors of the vendee attached the property, and plaintiff brought an action in another state against the vendee to recover the purchase price of the sale. It was held that the two remedies were inconsistent, because the plaintiff could have no claim for the value unless the title had passed to the vendee, while if the title had passed, plaintiff had no right to the goods. The action in the other state was held an election of remedies which prevented the plaintiff from maintaining the replevin action. To the same effect see Bank v. Haskell County, 61 Kan. 785, 60 Pac. 1062; Ullrich v. Bigger, 81 Kan. 756, 106 Pac. 1073, and cases cited in the opinions. In the Ullrich case it was held that the action was doubly barred — by the election of an inconsistent remedy, and by prosecuting that remedy to a judgment. When plaintiff chose her remedy in the probate court she necessarily was aware of all the facts upon which her present suit is based.
We prefer, however, to rest the decision upon the specific ground that there was no evidence which would justify the court in finding that the contract relied upon by plaintiff was ever made. No competent evidence was offered to show the existence of any contract between her and Mrs. Barons; and, if there could be said to be circumstances sufficient to raise the implication that some kind of a contract existed with reference to the disposition of the property of Mrs. Barons at her death, no witness testified what the terms of such contract were. The following question was asked of plaintiff:
“Now, Aunt Lucy, I will ask you whether or not you ever had an agreement with Mrs. Barons, during her lifetime, with respect to the disposition of her property at her death?”
The question was objected to because it called for an answer in respect to a transaction or communication had with a deceased person in an, action where the adverse party is the administrator or heir at law. (Gen. Stat. 1915, § 7222.) The court permitted the plaintiff to answer the question “yes” or “no,” and she answered it in the affirmative. Over defendants’ objections the court also permitted her to testify to the services rendered by her, and to the fact that she had not been paid. The ground of both rulings was stated by the court to be that the questions did not necessarily call for transactions, since the answer might be that there were none.
The testimony was not competent. Besides, it was not offered upon any theory that it might establish the fact that no transaction or communication was had with the deceased. Its admission in a trial before the court would not necessarily constitute reversible error, unless it appeared from the record that it furnished some basis for the court’s finding. Moreover, it did not tend, even if competent,'to establish the existence of the contract upon which plaintiff relies. And we have been unable to find in the record any evidence showing an agreement or contract that deceased would leave all her property, or any part of it, to the plaintiff at her death. On the contrary, there are many circumstances in the case which, in our opinion, in-, dicate forcibly that the claim was an afterthought. No witness ever heard of such a contract until after the plaintiff became dissatisfied with the terms of the settlement; and in all probability it originated in the mind of some other person. Plaintiff’s main witness was John F. Starkey, who had been em ployed as a clerk in the Barons’ hotel at Concordia and lived at the hotel from 1878 to 1904. He was very friendly to Aunt Lucy, although he had seen her but twice for a great many years. After the death of Mrs. Barons he wrote about twenty letters to plaintiff offering to aid her In procuring compensation for her services. He was living at Kansas City, Mo., and he made arrangements for the. employment of Mr. Gilmore to represent the plaintiff. He repeatedly assured her in the letters that she would be successful. In one of them he suggested that as soon as she got a settlement she could come to Kansas City and start a business that would make her independent and comfortable. He testified to two conversations with Mrs. Barons at Kansas City. The last one occurred about 1909. His testimony is:
“I asked Mrs. Barons in a visiting way, as I naturally would, — I said, ‘Mrs. Barons, you and I are getting pretty well along in years,’ apd I think I said — I cannot remember exactly the words I used, but as near as I can remember, it was this: ‘You have got quite a bit of property; what do you intend to do with it after you are gone?’ I knew her relatives were all dead except Lucy.
“Q. And what did she say in answer to that? A. Well, she said if. she died before Miss Lucy, — I think, that is the way she said it, I am not positive as to the exact words, but in a general way that was the conversation, — if she died before Miss Lucy she would get what was left, or the bulk of it at least; and I think she also said she was going to remember a niece of hers.
“Q. What did she say about Chip in that conversation? A. I asked her if Chip would get — if she was not going to leave the property to Chip. And she said, ‘Not on your life; Chip has got all he will ever get from me.’
“Q. Did she say she would not give this property to Chip? A. Yes.
. “Q. What did she say as to that? A. That she would not, on account of his drinking and gambling and running through with it.”
His testimony is that he did not .think the word “will” was mentioned in the conversations, and that in his talks with the attorney, no reference was made to any contract; that .he had never heard of it. There was testimony of substantially the same kind of a conversation between Mrs. Barons and the Wilfongs, in which she expressed the intention to leave her property to plaintiff and to disinherit her son, but the testimony does not tend to show the existence of a contract to will her property to the plaintiff.
In plaintiff’s correspondence with Gilmore she makes no mention of any contract about a will, but says that her sister had always said she would have pay for her work when the estate was settled up at her sister’s death, and she wrote that Mr. Starkey was a good witness for her, and that there were many others who would testify in her behalf. Moreover, after her sister’s death her sole complaint had been that she was entitled to keep some jewelry which formerly belonged to Mrs. Barons. In the first letter written to Gilmore she states that the night before her sister went away to the hospital for the operation which resulted in her death, she put in plaintiff’s hand her diamond rings and earrings and said: “ ‘Now you have got my diamonds, go and put them away in your room and if I do not come back they are all yours’ . . . and then she went away to the hospital at Kansas City, she died in August, and I put them in the bank with some of her other jewels and the son went and got a lawyer to get them out, said they did not belong to me; . . . They are still in the bank waiting to see what I am going to do.” In this same letter, after stating that Mrs. Barons’ property was valued at about sixty or seventy thousand dollars and that the son had not earned one penny of it, she states that Mrs. Barons “did not make a will as she did not think but what she would get well and come homé, but she did not.”
Mrs. Barons was going away and realized that she might never return, and yet it appears that she made no reference to the will which plaintiff claims she had promised to execute, whereby everything would go to plaintiff; she simply gave plaintiff some jewelry. This fact, together with wha,t the plaintiff says further on in the same letter about her understanding that she should receive pay for her work when her sister died, shows conclusively, in our opinion, that when plaintiff’s letter was written to her attorney the thought of any agreement with reference to the making of a will had never occurred to her¡
In a written opinion the trial court recognizes that the testimony of the plaintiff must be ruled out, but apparently proceeded upon the theory that it became the court’s duty to seize upon any circumstance consistent with the existence of such an agreement and infer its existence, because of the inherent difficulty under which the plaintiff was placed by the statute. After stating that the court fully appreciated the force of the doctrine as to the danger of relying on casual statements of parties since deceased to prove such a promise, the opinion proceeds: .
“But in cases like the case at bar in which people do business in a careless and informal manner, it often, we might say, usually happens, that promises made by persons since deceased cannot be proven by any better evidence than the class of evidence above referred to. This being true, the courts must be governed by the best evidence obtainable. . . . The court must consider the rule of law by which the plaintiff is prohibited from giving her testimony as to such promise having been made by the deceased to her. Such evidence was offered by the plaintiff, objected to by the defendants, and the objection, of course, sustained by the court. This leaves to plaintiff no other evidence than the circumstances and the evidence of others than the plaintiff of state-' ments made by the decedent.”
After referring to the fact that the evidence of defendants shows that F. E. Barons intended to make provisión for Lucy, but she very unwisely left the wish to be carried out by her son and heir without having such wish expressed in such a manner as to be binding upon him, the opinion says: .
“If F. E. Barons promised to leave her property to her sister Lucy there is ample consideration shown by the evidence for such promise. Lucy, as shown by the evidence, had labored in the hotels of F. E. Barons for many years; she had not received wages as other employees were paid; she could not recover wages unless there was an express contract for pay as she was a sister of F. E. Barons and lived as one of the family. In the absence of express contract for wages, she is without remedy unless there was a promise to provide for her by will. The fact of the plaintiff’s long service for her sister, her failure to demand or to receive wages, her physical and mental condition, ■ her dependence on F. E. Barons, the disposition of her sister to provide for her needs, both during her lifetime and after her death, are circumstances tending with great force to prove that F. E. Barons had promised to leave her property after her death to her sister Lucy.” '
The opinion then states the conclusion reached by the court, that in her lifetime Mrs. Barons kgreed on the conditions stated, that she would will and devise to her sister all the property she possessed at the time of her death.
All these circumstances together are insufficient, in our opinion, to support a finding that deceased promised to will all her property to plaintiff. Why all her property? Why not merely enough of it to insure Aunt Lucy the same care and comforts in her old age that she had been furnished in Mrs. Barons’ lifetime? It was necessary for the court, not only to assume the existence of a contract to leave some property to plaintiff, but to assume that the contract was to make a will leaving all her estate to the plaintiff. The inference or implication that a specific contract of this nature and importance was entered into cannot be rested upon such doubtful evidence; and besides, to do so ignores the statement of Starkey to the effect that in the conversation he claims took place in 1909, Mrs. Barons expressed the intention to leave a portion of her estate to a relative in the east. Mrs. Barons, in casual talks with friends and acquaintances, may often have expressed an intention not to leave any part of her estate to her son, but that would not evidence the existence of an agreement to, make a will, in Aunt Lucy’s favor. The law recognizes that such expressions of intention are not binding upon the one who makes them. • An expression of such an -intention would be entirely consistent with the existence of an agreement to leave the property to Aunt .Lucy or to someone else; but the mere fact that thq intention was expressed not to leave .Chip any part of the estate is not sufficient to support an inference that she agreed to make a will and leave it to Aunt Lucy. It is doubtless true that if Mrs. Barons had persisted in the intention to leave nothing to,her son, she would have made some provision by, will or otherwise for the care of her sister. Concede that she often declared she would leave nothing to the son, as any, .mother might have done, she changed her intention and in later years decided to leave him all her property, notwithstanding her objections to. his habits of life. The evidence and the court’s findings are that she believed her son would provide for plaintiff. We are impressed with the force of the testimony of Mr. Jones, the attorney for the heir at law, who knew all of the parties and who was the legal adviser of Mrs. Barons. His testimony is that she sent for him a, short time before her death and asked what would become of her property if no will were made, stating she had always taken care of Aunt Lucy and knew that her son would continue to do so; that upon being informed by her attorney she expressed herself satisfied with the disposition of her property under the statute. This testimony is certainly stronger evidence against the existence of the contract relied upon than the mere expression of her intentions, made in casual conversations years before, is that a contract of that nature- existed.
In Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, it was held that “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 iequitable” (syl. ¶ 1), and in Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396, it was said:
“An oral agreement that operates as a transfer of land must, of course, be made out by clear and satisfactory proof, but it is not essential that it be established by direct evidence. If the facts and circumstances brought out are $uch as to raise a convincing implication that the contract was made and to satisfy the court of its terms, and that there would be no inequity in its enforcement, it is- enough.” (p. 700.)
These rules have been followed and adhered to by us in other decisions. The courts, generally, recognize that while the existence of such a contract, like any other fact, may be proved by circumstantial evidence, there must be such facts and circumstances as indicate convincingly that the contract was made, and that claims of this nature should not be sustained upon doubtful proof, because it is easy to color testimony or to fabricate evidence which lies almost wholly in the control of persons testifying concerning casual statements made by a decedent in his lifetime. Many courts have characterized claims of this nature as inherently dangerous, although not refusing to enforce them where the proof is clear, and satisfactory. (Clark v. Turner, 50 Neb. 290.)
Besides, the enforcement of such agreements must not be inequitable. (Anderson v. Anderson, supra, and Bichel v. Oliver, supra.) There are no controlling equities in plaintiff’s favor. On the contrary, her claim to all Mrs. Barons’ estate, as against the son and heir at law, is inequitable and should not be sustained upon the character of testimony offered. The circumstantial facts are against her claim. The evidence is undisputed that Mrs. Barons was always anxious and solicitous for the assured comfort and care of Aunt Lucy in case the latter survived her. There is abundant evidence that she wanted the plaintiff to have the same care after her death that she had provided in her lifetime. But that Mrs. Barons, a woman of sound business judgment and experience, ever agreed to make, or thought of making, a will leaving all her property to her sister, inexperienced in business affairs, weak mentally and physically, and to disinherit her own son, seems improbable.
The weight of the testimony is against the claim of the plaintiff that she was coerced into signing the agreement of settlement. Mr. Stahl, a local attorney who was present, testified that she objected to the settlement for the reason she said she was to have sufficient money to keep herself as long as she lived, and Mr. Gilmore told her she was getting that, and she replied: “Yes, but how do I know that I am? You can’t stay here, and Chip won’t let me have it. Chip will drink it up”; that Mr. Gilmore then told her that there would be a trustee so that none of the funds would come through Chip’s hands, and thát her care would be a lien on the property; that, after agreeing to the matter, she herself suggested Mr. Lane as trustee. Mr, Lane,testified that the evening before the trust deed was made, he talked with her and Mr. Gilmore, and she wanted him to be trustee. He objected, and they talked for over half an hour, and he finally told her that on account of being connected with the family he would accept it. She advised with two of her business friends before signing the agreement the next morning.
Mr. Jones, who knew Aunt Lucy ever since she had been in Lyons, testified to the manner in which the question of making a settlement in the plaintiff’s favor was taken up with the probate judge and the attorneys, and the fact of the intention of Mrs. Barons that Chip should provide her sister with a proper home was conceded, also that Chip was addicted to some bad habits and might squander the property, and also that plaintiff was not capable of controlling or managing it herself. He submitted a proposition “to place this property in the hands of a trustee so that it could not be squandered either by Chip or by Aunt Lucy or by anybody else, and that the proceeds should be devoted to her care and support; that she should have a home, and it would be tied up in such a way, during her lifetime, that Chip could n’t squander.it, and then it would be for the benefit of him and his wife at last. ... I was not actuated by any desire to defeat the right of Lucy A. James at the time I made that contract, I was rather, anxious to protect her rights — I considered it equitable, fair, and just, and carrying out the intention of F. E. Barons, deceased, as expressed to me, and, in view of my knowledge of the parties, I felt it conserved the property. ... In fact, I was anxious to do it, as it was so in accordance with her wish, as she had expressed it, except that she did n’t express any desire to burden Chip with a binding obligation to take care of Lucy. Chip did not want to do it. . . . He wanted to be free. That was the objection that he made to signing it; and I labored with him and told him that that was his mother’s wish; and he would say all the time: T expect to take care of Lucy and furnish her with a home.’ And I said: ‘We will just put that in writing’; and he was quite rebellious about it, and I had a long argument with him . . . and we labored with him for a great length of time to get it done.”
The probate court, being fully advised as to the undisputed facts and reasons for the settlement, ratified and approved it. The settlement seems to us fair and equitable between all the parties, and, on the other hand, the enforcement of the contract under which plaintiff claims would be manifestly inequitable. The controlling consideration, however, is that the existence of the contract is not sustained by sufficient evidence, and it follows that the judgment is reversed and the cause remanded with directions to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover from the surety on a bond given by a contractor who erected a county bridge. The plaintiff recovered, and the defendant appeals.
The condition of the bond was that the contractor should pay all indebtedness incurred for labor or material furnished in the prosecution of the work, and pay all claims which, might be the basis of liens. The plaintiff sued for the price of metal used for piling. The answer was that the material was used for concrete forms which did not become a part of the bridge, but which were capable of being used again, and which were drawn, removed, and used again in the construction of. another bridge.
The material consisted of new, galvanized, medium steel, in flat sheets, which were corrugated and fashioned into piling six feet long, according to the special order of the contractor. Such piling is driven into the stream to be bridged and forms a box or cofferdam to keep back earth and water. After excavating inside the box, concrete is poured into it to form the pier or abutment under construction. Sometimes, when the piling is not visible after the work is completed, it is allowed to remain; otherwise it is removed. The question was whether or not the material was “used,” in the sense of substantially consumed, in the construction of the bridge. (Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563.) The question stated was a question of fact. There was evidence that driving the piling batters the ends and causes it to buckle. The material is of short life, is subject to rust, and may be bent in handling. Sometimes the piling may be drawn, the battered ends sawed off, and the piling used again; but it cannot be used over and over. Certain of the piling in question was introduced' in evidence, and the .proof was clear that it was not fit for further use, and had no value except as j unk. So far the plaintiff had a perfectly good case.
The plaintiff produced a civil engineer, experienced in the use of sheet metal for casings in concrete construction work, who testified that the range of depreciation attending use of piling of the kind in controversy is from thirty to seventy percent. The piling exhibited might never be in demand, but might be of value to-morrow. The plaintiff’s president and manager, testifying for his company, said that piling can seldom be used for more than one place without cutting off the ends. Cutting off the ends generally makes it too short for further use in the work for which it was ordered. This piling appeared to have been driven once, pulled, and then cut off and driven a second time. That was the probability. He would not say the piling had been moved to different work-. (He did not say the piling had not been used on different work.) The deposition of the county engineer, who saw the material when it, arrived at the bridge site, and who was at the bridge when the material was used, was taken, and was offered by the plaintiff. He said the present condition of the material was worn out, and that it was valuable only as junk, at the current price. This witness testified further, however, that the ends of the piling had been sawed off once or twice, that piling may be successfully used again for similar work, and that this piling had in fact been used in the erection of another bridge a few miles from the one described in the contract. The defendant’s evidence merely corroborated the portion of the plaintiff’s evidence which was to the effect that, driving piling once does not destroy it, and that it may be used again in similar work.
The bond covered not only claims which might be the basis of liens, but indebtedness incurred for material furnished, the life and substance of which were practically consumed in the work. While the plaintiff’s evidence was conflicting with respect to the extent to which material of this kind may be used the second time, there was no dispute that the material in question had been used a second time in the construction of another bridge. The plaintiff may recover for whatever material was actually used, but may not recover for material which, although damaged and reduced in value, actually formed a part of the contractor’s equipment when he engaged in building another bridge.
The judgment of the district court is reversed, and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
Asa Williams sued the Kansas Flour Mills Company for $234.18, as the balance due for some wheat he had sold to it, being one-third of the purchase price. No issue was- made between the plaintiff and the company, but George M. Russell, who claimed that this portion of the price of the wheat should be paid to him, was made a defendant, and filed an answer setting out his claim. The plaintiff recovered, and Russell (who will hereafter be spoken of as the defendant) appeals.
The following facts are admitted by both parties: The defendant owned a 200-acre tract of land which included that on which the' wheat was grown. In. March, 1915, he executed to the plaintiff a five-year lease on the entire tract, the annual rental being $452.50, for which five notes were given, the first being due October 1, 1915. In the fall of that year the wheat in question was sown. In January or February, 1916, an oral agreement was made between the parties by which the lease was in effect canceled and the land returned to the defendant, the plaintiff retaining the'right to harvest the wheat and agreeing to compensate the defendant for the use of the land in that connection. The dispute arises over the amount and character of such agreed compensation. The defendant asserts that the plaintiff was to deliver to him at the railroad station one-third of the grain. The plaintiff asserts that he was to pay him $120, or at the rate of $2 an acre for the wheat land, which amounted to 60 acres.
The defendant’s testimony was to the effect that he made the plaintiff a proposition to surrender the four notes which had not yet matured, in return for the. lease, and take one-third of the wheat crop; that in a subsequent conversation the plaintiff accepted the proposition, and the papers were exchanged. The 'plaintiff corroborated the defendant as to the proposition having been made to him calling for his delivering one-third of the grain; but he testified that he refused to agree to this, and that in the later conversation the defendant offered to exchange the papers “and let the wheat ground go the way it is”; that he was paying under the lease $2 an acre for the wheat land, which comprised 60 acres.
The defendant complains of the giving of an instruction reading:
“A completed oral contract can only result where there is a meeting of minds of the contracting parties. That is, they must agree to the same things at the same time. There must be an offer on one side which is accepted and agreed to upon the other side.”
It is contended that under the peculiar, state of the evidence the instruction was misleading. The defendant’s version of the transaction was, that he had made a proposition at the first conversation which the plaintiff accepted at the second without its having been restated. He asserts that the jury in applying the instruction in question to this situation would naturally suppose that he could not recover, inasmuch as the proposal was made at one time and the acceptance at another. We cannot regard it as probable that the jury placed that construction upon the statement quoted. It seems more likely that they understood it in the sense in which it was intended; that they realized that in saying that in order to complete a contract the parties must agree to the same things at the same time the court meant (as applied to the situation referred to) that to have such effect the acceptance of a proposal must be made while it is still in force — before it has been withdrawn.' At any rate, if the instruction was open to misconception, the danger was not so obvious that the defendant could base error upon it without having asked a fuller exposition of the matter.
The only other complaint made is of an instruction relating to the burden of proof. The jury were told that each party had the burden of showing that the contract which he claimed to have been made was made, and that if it was found that neither was made the plaintiff should recover. The defendant says:
“Under the lease that was given, Russell was to receive certain rent. Under the changed tenancy he was to receive a different rent. The bur,den was upon the plaintiff, Williams, to establish his agreement, because he was attempting to show that different arrangements had been made than what had been agreed upon. In other words, he was the first to claim in court that a changed contract had taken place.”
The parties agree that the original lease was annulled by their joint action. As the issues were made up, the defendant was the attacking party, and the burden of proof rested on him, except as it may have been removed by special considerations. The claims of both parties seem to have been fairly placed before the jury, and we see no likelihood of any prejudice having been occasioned by the instruction, even assuming that it was open to criticism.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action to recover for personal injuries, the plaintiff obtained a judgment against the defendant for $3,000 on account of negligence in constructing and maintaining defendant’s gas pipe upon a public highway. It was alleged that the defendant, which owned and operated a pipe line for conducting gas from its wells to consumers, constructed and maintained a pipe line on and along a public highway about two feet above the ground and in such a way as to constitute a nuisance, and that while plaintiff was driving along the highway, observing due care, his horse’s feet were caught under the pipe, throwing down the horse, upsetting the buggy, and throwing plaintiff against a barbed-wire fence, seriously injuring him. Defendant answered with a denial, a1 charge of contributory negligence, and. an averment that the property, assets, and control of the business of the defendant were in the hands of a receiver when the accident occurred, and that, therefore, it was not liable for the injury. It was shown in the evidence that the road along which the pipe was laid was partly surfaced with macadam, and at the place where plaintiff was injured it was slanting and slippery by reason of a recent rain. The gas pipe mentioned was near the edge of the macadam surface and from a foot to sixteen inches above the ground. Just as the plaintiff drove past a steam roller which was standing on the other side of the road and partly upon the macadam portion the horse slipped, his feet going under the gas pipe, and in a plunging effort to extricate himself and get on his feet the buggy was overturned, throwing'plaintiff against the barbed-wire fence and causing the injury for which the recovery was sought. There was a conflict in the evidence as to how the horse and buggy came to slide down to the pipe, and as to whether the horse first became frightened at the steam roller near by; but it is reasonably clear that the horse slipped under the gas pipe, with the result that plaintiff was thrown out .and injured.
One of the contentions on this appeal is that the defendant cannot be held responsible for the injury, because the pipe line was under the control of a receiver when the accident occurred. After the pipe line was constructed, and on August 15, 1911, the property óf the company passed into the hands of a reeeivér and was in his possession on May 20, 1915, when the ac^ cident occurred. It appears that on April 24, 1915, about two years before the trial herein, an order was made discharging the receiver and providing that the possession of the property should be restored to the company within five days after the order was made. Although no direct evidence of the surrender of possession to the company is found, the presumption is that the receiver performed his duty and restored the possession to the defendant as directed. As the company negligently created a nuisance on the highway which caused the injury of the plaintiff, while the line and the business of the company was in the control of the defendant, it is- liable for the injury to the plaintiff regardless óf the liability of the receiver for wrongfully maintaining the line in' that condition. The company cannot escape liability for its wrong because the receiver may be liable, or because he happened to be in control of the pipe line when the injury was sustained. (29 Cyc. 1201.) Defendant says the case was tried on the theory of negligence, and not that the wrong constituted a nuisance. It was alleged in plaintiff’s petition that the defendant negligently created a nuisance. The testimony showed that the structure built by the defendant was a nuisance, and the court in its instructions recited the facts upon which the plaintiff relied for a recovery, and these facts amounted to a nuisance. The court did define the rules of negligence, and there was negligence in' the act of the defendant. The building of such a structure was not only negligence, but it was a wrong which rendered the one creating it liable without proof of negligence. (20 R. C. L. 381; 29 Cyc. 1201.) The requirement that plaintiff should prove negligence placed an unwarranted burden upon him, but it is not one which prejudiced the defendant. This is sufficient to sustain the ruling of which complaint is made, but it may be added that it has been held that a railway company is liable for an injury that occurs while the property is in the hands of a receiver or trustee. (K. P. Rly. Co. v. Wood, 24 Kan. 619; Union Trust Company v. Cuppy, 26 Kan. 754.)
Objection was made to testimony that the pipe line was moved' and buried after the accident. As the precaution for safety was taken by the receiver, and not by the company, it may well be doubted whether the testimony was admissible. However, the defect in the construction of the line was so obvious and the responsibility of the defendant so clearly shown that no prejudice could have resulted from the admission of the testimony.
Nor was there any error in the ruling refusing to strike out the testimony of Doctor Gordon. His description of the place where the accident occurred conflicted with that of other witnesses, so that defendant insists that he must have been speaking of another place than the one where the accident occurred. While that may have impaired the credibility of the witness and the weight of his testimony, it did not affect its competency. Although questioned, the testimony tended to show that the exposed pipe was the proximate cause of the injury. We cannot uphold the contention that the amount of the verdict indicates prejudice and passion on the part of the jury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson/ J.:
The plaintiff sued the defendant for an alleged breach of a written contract, dated in 1903, in which the defendant had agreed to pay the plaintiff—
“The sum of $25 per year, or whatever sum may be necessary for her care and support during- her natural life.”
The defendant’s answer admitted the execution-of the contract, alleged his full compliance-therewith, that the true interpretation of the contract at the time it was executed and as understood by plaintiff and himself during all the years of'its existence was that his obligation to plaintiff was for $25 per year, or so much thereof as might be necessary for plaintiff’s care and support during her life, and he prayed that the written contract might be reformed accordingly.
The trial court reformed the contract, and the defendant prevailed.
Plaintiff appeals. Error is based upon the want of evidence to support the judgment. There seems to be no difficulty on that score. The circumstances attending the making of the contract were elaborately proved. The defendant, his daughter, and a disinterested neighbor testified as to the facts. True, other witnesses, whom the trial court did not believe, testified more or less to the contrary, but that is of no consequence on •appeal. (Wideman v. Faivre, 100 Kan. 102, 163 Pac. 619; Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057; Brecheisen v. Clark, 103 Kan. 662.)
The plaintiff held a life estate in eighty acres of land, which was not ordinarily very productive, and which was subject to occasional flooding by the Marias des Cygnes river. The defendant, who was plaintiff’s son-in-law, held the fee to the remainder estate. He formerly rented the land from plaintiff. One unusual year 400 or 500 bushels of wheat were grown on the land, and plaintiff’s share was one-third of the crop. But for some years.he had rented the land for cash — $25.00 per year and the taxes. Then defendant purchased plaintiff’s life estate, but she declined payment in a lump sum because she feared another son-in-law would deprive her of the money, and she preferred to have defendant pay her some money whenever she needed it. For ten or eleven years, the defendant gave her small sums as she needed money. She lived around with her children, a while with one and then with another, sometimes with defendant. Her need of money was small. She never failed to receive money from defendant when she or any one on her behalf asked for it. She highly regarded the defendant, and- often said of him: “I don’t know sometimes what I would do if it wasn’t for Jim.”
No purpose would be served by reproducing the evidence at greater length; it has been carefully perused. Defendant’s evidence was clear, explicit, and satisfactory, and its sufficiency to support the judgment is upheld.
Another error is urged: Counsel for plaintiff took her deposition, and later moved to suppress it on the ground that she was mentally incompetent when she gave it. The plaintiff’s deposition was taken on June 29, 1914. Fifteen months later, on October 5, 1915, the plaintiff was adjudged to be a feeble-minded person and incapable of managing her business affairs. The record recites:
“The Court: This matter can be passed for the time being, and we will go ahead with the hearing of testimony in this case.”
[Counsel for plaintiff] : “Well, I don’t know. We have witnesses here, if the court please, solely on this subject, and it would be a great accommodation to the most of these witnesses if they could know whether or not they are to continue to remain here on this hearing.
“The Court: Well, I will expedite the matter. For the present I will admit the deposition and overrule the motion to take testimony upon the competency of this woman to give the deposition at the time it was taken.”
[Counsel for plaintiff] : “Very well. Note our exception.”
It will be observed that plaintiff’s deposition was taken on her own initiative, or upon the initiative of those who assumed to act in her behalf. It was not taken at the instigation of defendant. Moreover, while plaintiff produced witnesses in an attempt to prove her incapacity at the time her deposition was taken, the fact that the deposition had been taken by her own counsel weighs strongly against the credence to be placed on the testimony to overthrow that deposition which was adduced by the parties who caused the deposition to be taken. Moreover, the deposition itself contains strong internal evidence that the plaintiff understood the contract she had made with the defendant, her son-in-law, many years before. The deposition does show that plaintiff did not seem to realize that she was suing her son-in-law for a large sum of money, and it did tend to show that those who were acting in her behalf had not been authorized by her to do so. Doubtless that was an embarrassing situation, but it in no way affected the issue before, the court — the question whether the contract should be reformed. The operative interpretation of the contract by the parties themselves for ten years or more (News Service v. Printing Co., 103 Kan. 402, 173 Pac. 980), and the positive and apparently reliable testimony of defendant and his witnesses, fully justified the judgment, regardless- of the deposition; and it was not prejudicial error to overrule the motion to suppress it. ' Nothing further can be discerned in this case which requires discussion. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was on a promissory note for $300 given by the defendant to the plaintiff in part payment of a commission for procuring a real-estate loan. The answer admitted the execution of the note, but alleged that the consideration for which it was given, had wholly failed; that plaintiff had orally agreed with defendant to procure him a loan of $20,000 on his farm in Kiowa county, which was to draw interest at the rate of six percent; that defendant agreed to pay him a commission of $600 for his services; and that he had paid $300 in cash and given the note for the balance. It alleged that when the first installment of interest on the loan became due defendant for the first time discovered that the rate of interest was six and one-half percent, instead of six percent, and that therefore plaintiff had not fulfilled his contract; that defendant was unable to read, and for that reason did not discover when he signed the loan papers that the rate of interest was greater than six percent. He prayed that the note be canceled and for judgment ágainst plaintiff for the $300, cash payment, with interest from the time it was paid, and for costs. The reply was a general denial. The jury returned a verdict in favor of defendant. The court gave judgment against the plaintiff for $357.72, the amount of the cash payment with interest, and for costs. The plaintiff appeals.
The defendant had the burden of proof. He testified he had lived in Kiowa county thirty-two years, that in company with one Eastman he went to Hutchinson to the office of plaintiff where they informed plaintiff that he desired a loan of $20,000 upon his land, and did not want to pay over six percent; that Mr. Fontron said that he did not know whether he could do that or not; that he would have to find out from the company if he could make that rate ; that the regular rate was six and one-half percent; that possibly the company might make it at six percent, and he would call up by long-distance telephone and inform defendant later. He further testified that he had never talked with plaintiff about paying him any commission; that he did not make any contract with him at the time he made the loan, but paid the $300 and executed the note after the $20,000 loan had been paid to him; that after he had received the last of the proceeds of the loan plaintiff told him that Eastman had said defendant would give plaintiff a small commission, and that plaintiff “struck him for' $600.” He thought at the time that it was a big commission in place of a little one, but paid $300 cash and gave the note for the balance, thinking he had a six percent loan. He admitted that Mr. Fontron advanced him $12,000 before the- loan was completed; that after talking with Eastman he came to the conclusion that owing to the trouble Fontron had with the loan he ought to pay him a commission. On his direct examination the defendant’s attention was called to one of the applications made to the insurance company for the loan, in which the interest was stated to be at the rate of six and one-half percent. He admitted signing the applications the day following the conversation in the office after he had been notified by telephone that the company would make the loan. His testimony is that he cannot read, and that the written applications for the loan were signed by him without having them read; that he did not have the note and mortgage read over to him, and signed them without knowing what was in them; that his wife signed them without having them read to her, although she can read and write; that he discovered the six and one-half percent rate when he paid the first year’s interest, and did not discover it when he paid the first interest installment of about $754, which was for part of a year. He admitted that he had never made any complaint to Mr. Fontron after discovering the rate of interest he was paying.
Eastman testified that he introduced Kruse to Fontron, explained the condition of the land, the amount of money wanted, and the rate of interest defendant was willing to pay if he could get it at that rate; that plaintiff said he could n’t make it at six percent; that they never had made any as low as that so far west. “I told Mr. Fontron it was a big loan and that he ought to give him a pretty good rate on it, something to that effect.” The witness was not positive whether or not he told Fontron the defendant would not make a loan unless he could get it at six percent. He testified that plaintiff called him by telephone that evening and said: “I can make that loan for you,” and he replied, “All right, we will be down in the morning.” The next morning he went with Kruse to Fontron’s office, but did not stay over five minutes, and left Fontron and Kruse talking the matter over. As he started out he heard Fontron ask defendant if he would be willing to pay a small commission to get the loan through, stating as a reason that there was no commission in it to him to amount to anything, and that he was having trouble to get it through. The court overruled a demurrer to the defendant’s evidence.
The application was for a six and one-half percent loan, and was in writing, signed by the defendant. It appointed plaintiff agent or attorney in fact for defendant to procure the loan. The mortgages, notes, and coupons were signed by defendant and wife. Plaintiff testified that when the parties called at his office he told them it was a heavy loan to one individual, and that six percent interest was out of the question; that he could not do any better than that at home on the best land; that the rate in Kiowa county was higher than it was in Reno, where the prevailing rate was seven percent, and that a good many loans were being made at seven and one-half percent; but that he would try to get them a loan at six and one-half per cent. His testimony is that after they had studied the matter over they asked if that would include a commission, and he told them it would if he could get the rate from the party he had in mind. He testified that the next morning Kruse signed and acknowledged the application, and that nothing was changed in the papers after he signed them; that the application was made in. November, 1912, and Kruse got all his money sometime in February, 1913; that while the abstracts were being brought to date, plaintiff advanced $12,000 to defendant to pay for a quarter section of land, and at that time told him the insurance company paid a very slight commission — less than $100 — and that after some talk defendant finally agreed to pay $600 provided plaintiff would not say anything to defendant’s wife about it, and if plaintiff would take his note for the amount due after harvest. He testified that defendant gave him his note for $600 payable September 1, 1913, and came to his office about the date it was due, paid $300 and the interest, and asked a year’s time on the balance, which he granted, and defendant gave a new note for the $300 balance. He testified that he had never been informed that Kruse was dissatisfied with the loan or the rate until the second note for the commission fell due and after he had sent it to the bank for collection.
J. A. Fontron, father of plaintiff, testified that when he arrived at the office that morning his son said to him, in the presence of defendant, that he had been unable to procure a loan for less than six and one-half percent, and that Kruse had agreed to pay that rate, and asked the witness to draw the application; that Kruse made no remark. • The witness drew up the application, which took two hours to complete, and that defendant was present all that time.
The answer pleads, in effect, a'total failure of consideration, but the facts alleged show that the consideration had not entirely failed. They show that the note sued upon was given in part payment of plaintiff’s services in procuring defendant a loan on his farm for a certain amount to run a certain number of years and to draw interest at six percent-; that a loan was procured for the agreed amount and in all respects satisfactory to the defendant, except that it provided for interest at the rate of six and one-half percent, and that plaintiff accepted and still retains the loan. Having accepted and retained the benefits of plaintiff’s services, he is in no position to claim a total failure of consideration. If the agreement had- been to procure him a loan of $15,000 to run for five years at six percent interest, and plaintiff had procured a loan of $10,000 running three years at six percent interest, the defendant, after accepting the loan upon these terms, could not claim that the consideration for his agreement to pay plaintiff for the services rendered had failed. If he had employed plaintiff to procure for him a thousand bushels of white com, and plaintiff had procured for him that amount of yellow com, which he received, giving his note in payment of the services rendered, he would not be heard to say that the consideration for the note had failed. The undisputed facts show that there was no agreement to pay any commission until after the services had been performed and defendant had received the full proceeds of his loan; and part of the consideration for the payment of the commission is conceded to have been additional services of plaintiff in advancing defendant $12,000 before the loan was completed, and other services found to be necessary because of the condition of plaintiff’s record title to the land.
The court gave the following instruction:
“If you find from the evidence that the plaintiff agreed to procure said loan for defendant at the rate of six percent interest per annum; and if you further find that defendant executed the notes and mortgages for said loan without knowledge that they bore six and one-half percent interest; and if you further find that the defendant, without knowledge that the said loan bore six and one-half percent interest, delivered to plaintiff the $300 note sued on as payment or part payment for plaintiff’s services in procuring said loan then you are instructed that the consideration for said note failed and plaintiff cannot recover thereon.”
For the reasons already stated, it is manifest this instruction should not have been given. Other instructions based upon the alleged failure of consideration were also erroneous. The only part of the answer which suggested a defense was that portion which set up a counterclaim for damages resulting from the alleged breach of the contract by the plaintiff, and the question is whether the defendant, who had the burden of proof, offered any competent evidence to sustain that defense. On the trial it developed that defendant had signed a written application for the loan in which he appointed the plaintiff his agent to procure it at six and one-half percent interest — the exact terms upon which the loan was procured. He attempts to avoid this written agreement by alleging an oral agreement made before the contract was signed, by which the rate was. to be different from that stated in the written application. The answer contains no allegation of fraud or mutual mistake, and no evidence was offered to show either fraud or mutual mistake. The admission of the testimony was in violation of the parol-evidence rule, that all prior negotiations and agreements are regarded as merged in the writing and that the whole contract is presumed to be expressed therein.
“The only safe criterion of the completeness of a written contract as a full expression of the terms of the parties’ agreement is the contract itself. . . . and, consequently, all parol testimony of conversations held between the parties, or of declarations made by either of them, whether before or after, or at the time of the completion of the contract, will be rejected.” (Naumberg v. Young, 44 N. J. L. 331, 339, followed and approved in Railway Co. v. Truskett, 67 Kan. 26, 35, 72 Pac. 562.)
“Parol evidence of what was said or done before and at the time of making a written contract is not admissible to alter, vary, or contradict the express terms of the written contract.” (Smith v. Deere, 48 Kan. 416, syl., 29 Pac. 603.)
(See, also, Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894; Rich v. Cattle Co., 48 Kan. 197, 29 Pac. 466; McMullen v. Carson, 48 Kan. 263, 29 Pac. 317; Trice v. Yoeman, 60 Kan. 742, 57 Pac. 955; Railroad Co. v. Price, 62 Kan. 327, 62 Pac. 1001; Railway Co. v. Vanordstrand, 67 Kan. 386, 73 Pac. 113.)
The rule is not altered by the fact that defendant was unable to read. (See authorities cited in Railway Co. v. Vanordstrand, supra, p. 392.) .
This is the invariable rule in the absence of any claim of fraud or mutual mistake. (Griesa v. Thomas, 99 Kan. 335, 340, 161 Pac. 670.)
The present case illustrates the necessity for the rule. The witnesses for the plaintiff testified that the rate was stated to be six and one-half percent before the application for the loan was signed. The defendant testified to the contrary. The application for the loan having been made in writing it is the best evidence, and the defendant ought not to be permitted to vary the terms of the writing by parol evidence of conversations leading up to the making of the written agreement. The fact that the written instrument is not the one upon which the suit is brought does not prevent the application of the rule to the testimony offered. (Willard v. Ostrander, 46 Kan. 591, 26 Pac. 1017.) There the action was on a note which the answer alleged was given as a part of the purchase price of a flock of sheep under an express warranty of the soundness of the sheep, and the answer set up a counterclaim for damages on account of a breach of the warranty. It was shown that the bill of sale for the sheep .contained no warranty, and it was held error to permit the defendant to show by oral evidence representations and statements made previous to the execution of the bill of sale, because of the presumption of law that the instrument contained the whole contract and should govern unless fraud had been alleged and proved. The application for the loan, authorizing the plaintiff to procure it, being in writing was the best evidence of what the rate agreed upon was, and under the rule in Willard v. Ostrander, supra, the court should have sustained the objection to the parol evidence offered by the defendant. Where a mistake is relied upon in the execution of a written agreement it must be a mutual mistake, and moreover, must, as in the case of fraud, be pleaded.
The only reason stated in the answer for his not knowing the contents of the written application and the other loan papers is, that he is unable to read. But that was all the more reason for his not signing them until examined “by some one for him in whom he had a right to place confidence.” (Hawkins v. Hawkins, 50 Cal. 558, quoted with approval in the Vanordstrand case, supra.)
Besjdes, the defendant should be held estopped to raise this defense at such a late day. The written applications for the loan were signed in November, 1912; he received the $20,000 proceeds in February, 1913; the note was not executed until August 29,1913, and in the meantime he had made a payment of $754 interest on the loan, and claims not to have discovered what rate of interest the loan drew until he made the second payment of interest at the end of the first year from the time the loan was made; and he made no complaint of any misunderstanding of the facts until he filed his answer in May, 1915. The answer contains no averment of fraud or mutual mistake, and there was no proof of either.
The judgment is reversed- and the cause remanded with directions to sustain the demurrer to the evidence and render judgment in plaintiff’s favor for the amount due on the note. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The right to the custody of Ruth Zeigler, who is four years of age, is the subject of controversy between her father, E. C. Zeigler, and her grandmother, Mrs. Ida B. Dusto.
While there is considerable conflict in the testimony regarding the conduct and character of the parties herein, the appeal may be determined upon the findings made by the trial court. From these findings it appears that eleven days after Ruth was born, her mother died, and about that time an arrangement was made between her father and Mrs. Dusto that the latter should care for and support Ruth for a consideration of $20.00 per month. Mrs. Dusto was present when Ruth was born and has cared for her since that time. After this arrangement was made, the father visited Ruth with some regularity, about once a month, and made the stipulated monthly payments regularly for three or four years. These payments continued until a business dispute arose between the petitioner and the respondents, who were then occupying a farm owned by the petitioner. For a few months thereafter the regular payments were not made, but' during that time the Dustos had kept and sold products of the farm which belonged to the petitioner. After the dispute arose, and in December, 1916, the petitioner asked for a settlement and told the respondents that he was going to discontinue the arrangement for the care of the child and take her away. Whereupon Henry Dusto assaulted him, and shortly afterwards this proceeding was begun by the petitioner to obtain the custody of his daughter. It was found that while there had been some irregularity of life in the Dustos in the past, they had for a number of years borne a very good reputation in the vicinity in which they lived, and both seemed to be' very much attached to Ruth. Their family consisted of themselves, two of their own children, who were still at home, and also the mother of Mr. Dusto. It appears that Mr. Dusto owns no property, except a five-room house, which is fairly well furnished, but is situated on property that does not belong to him, and his only means of support for the family is his earnings of $3.50 per day as a laborer in a smelter. As to Ruth’s father, the court finds that he has accumulated property to the value of from $10,000 to $12,000; that for most of his life he has been engaged either as an employee or owner in the cigar and pool-hall business, and has a business of that kind at Collinsville, Okla., which is paying him from $300 to’$500 per month. It is found that, excepting for a charge of having violated the cigarette law on one occasion, he has conducted his business in an orderly, law-abiding manner.
As to the ability of the father to care for Ruth, it is found that he has a modern five-room house, nicely furnished, and has arranged with a widow woman, fifty-one years old, of good character and reputation, to care for Ruth in case her custody is awarded to him. The court found that the petitioner bears a very good reputation among the people who know him, and that he is not'personally unfit to have the care and custody of his daughter, but the court concluded upon all the facts that the best interests of Ruth, for the present at least, demands that she be allowed to remain in the custody of Mrs. Dusto.
Under the facts in the case the petitioner is clearly entitled to the custody of his child. It is not claimed that petitioner ever gave the child to the respondents to be kept as their own, or that he ever surrendered his parental right to her custody. The respondents’ relation to her was a business one, through which they were to be paid a stipulated sum for her support and care for the time being. It may be assumed that this contract of the respondents was faithfully performed, and that they have become strongly attached to the child, and further that they are fit persons to rear such a child, but a parent cannot be deprived of his child because others love her and are fitted to care for her. (Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968; Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987.) The fact that the respondents may give her attentions and comforts that the father cannot does not warrant a court in breaking the family relation. Ordinarily the love of a parent is more advantageous to the child than any creature comforts or other advantages that a stranger may offer. Here there is not only the parental relation, but the father, who manifests affection for and interest in his daughter, and who is found not to be unfit to have her care and custody and seems to be better able to provide for her comfort and education than are the respondents. It is true it is contended that the welfare of the child is the prime' consideration, but courts cannot overlook the rights of a parent or the ties which exist between parent and child in determining the child’s welfare. As was said in In re Hollinger, 90 Kan. 77, 132 Pac. 1181:
“A parent who is a suitable person for the purpose is entitled to the custody of a child as a rqatter of right as against anyone not its parent, irrespective of the question whether it might be better provided for by someone else who is willing to assume the obligation.” (syl. ¶ 1.)
We are of the opinion that upon the facts found by the court the petitioner is entitled to the custody of his child, and therefore the judgment will be reversed and the cause remanded with directions to enter judgment in favor of the petitioner. | [
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The opinion of the eourt was delivered by
Marshall, J.:
The plaintiff commenced this action to recover judgment for„ personal injuries. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The defendant is a charitable corporation organized under the laws of this state solely for purely philanthropic and charitable purposes. It conducts a hospital, or sanitarium, at Wichita. The plaintiff was afflicted with melancholia, and was, by her husband, taken to the defendant’s hospital. He stayed with her for a couple of days, when he was advised by Dr. Sutter, the defendant’s medical superintendent, to go home and stay away from the plaintiff.- The husband agreed so to do on condition that a nurse be placed in charge of the plaintiff at all times, and that she be not left alone. To this Dr. Sutter assented. A special nurse was placed in charge of the plaintiff, but the nurse did not remain in the room with-the plaintiff at all times. The nurse slept in the hall near the door to the plaintiff’s room. While the nurse was so sleeping, the plaintiff got out of her bed, passed through an open window, fell to the roof of a porch below, and injured herself. She brought this action to recover damages for the injuries sustained by her. There was no allegation in the petition and there was no' evidence to prove that the defendant did not exercise reasonable care in the employment of its physicians and attendants.
The jury returned a verdict in favor of the plaintiff and answered special questions as follows:
“2. Does any person, corporation, or association receive profits or dividends from its earnings? Answer: No.
“3. If the jury answer the foregoing interrogatory in the affirmative, then state what person, corporation, or association receive profits or dividends? Answer: Not any.
“4. What, if any, negligence do you find, the defendant guilty of? State fully. Answer: In not complying with, special contract entered into with Mr. Davin in supplying a special nurse in constant attendance upon Fannie Davin at all times.
“5. What servant or agent of the defendant was guilty of the negligence found, if any? Answer: Miss Cox, the special nurse.
“6. What could the defendant have done that it did not do to avoid the injury to plaintiff? Answer: Should have had special nurse in room in constant attendance on Fannie Davin.
“7. Did any servant or agent of the defendant have reason to believe that the plaintiff would be likely to injure herself? Answer: Yes.
“8. If you answer the last question in the affirmative, then state what servant or agent had such reason so to believe? Answer: Dr. Sutter, the hospital doctor, and the special nurse.
“9. Did the husband or physician of the plaintiff inform any agent or servant of the defendant that she was likely to injure herself if not guarded, and if so, to whom was such information given? Answer: Yes, inasmuch as Dr. Edgerton informed Dr. Sutter of the nature of the case.”
'The court set aside the verdict and rendered judgment in favor of the defendant on the facts found by the jury.
The plaintiff says: “The only specification of error is the order sustaining the motion of the defendant for judgment on the-special findings.” Can the plaintiff recover under the facts found by the jury? In Nicholson v. Hospital Association, 97 Kan. 480, 155 Pac. 920, this court said:
“Charitable associations conducting hospitals are not liable for the negligence of their physicians and attendants resulting in injury to patients unless it is shown that the association maintaining the hospital has not exercised reasonable care in the employment of its physicians and attendants.
“In such an action a petition which fails to allege that the defendant did not exercise reasonable care in the selection of its physicians and attendants is subject to demurrer.” (syl. ¶¶ 1, 8.)
There are cases holding that even if a contract is made by which those in charge of a hospital agree to furnish a nurse to be in constant attendance, yet the hospital is not liable for damages on account of injuries sustained by a failure to comply with the contract. (Duncan v. Nebraska Sanitarium & Benevolent Ass’n, 92 Neb. 162; Downes v. Harper Hospital, 101 Mich. 555; Duncan v. St. Luke’s Hospital, 98 N. Y. Supp. 867.)
One reason for this rule is that “trust funds created for benevolent purposes'should not be diverted therefrom to pay damages arising from the torts of servants.” Another reason is that “public policy encourages the support and maintenance of charitable institutions and protects their funds from the maw of litigation.” (Duncan v. Nebraska Sanitarium & Benevolent Ass’n, 92 Neb. 162, 164, and note to this case found in Ann. Cas. 1913 E, 1129.) Both reasons are good.
Dr. Sutter made thé agreement, and he may be liable personally ; but the plaintiff argues that because Dr. Sutter failed to comply with his agreement, the defendant is liable. There is no reason why the defendant should be liable for Dr. Sutter’s negligence, any more than it should be liable for the negligence of the nurse who was looking after the plaintiff. Under Nicholson v. Hospital Association, supra, the defendant is not liable for the negligence of Dr. Sutter.
The plaintiff cannot recover under the facts found by the jury, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by taxpayers to enjoin the city from issuing bonds for the construction of a combined water and electric light plant. . An injunction was refused, and the plaintiffs appeal.
The proposition submitted at the bond election was to issue bonds for the purpose of constructing works consisting of a combined water and electric light plant to supply the city and its inhabitants with water and electric light. It is contended this was a dual proposition. Plainly, the proposition was single — the construction of a single plant combining in its functions services usually performed by separate works.
The principal. contention is that no statutory authority existed for the issuance of bonds for the construction of a combined water and electric light plant. Such authority is found in chapter 75 of the Laws of 1913 (Gen. Stat. 1915, § 825), which took effect on February 20, 1913. It is claimed, however, that this act was nullified by another passed at the same session, chapter 123 of the Laws of 1913 (Gen. Stat. 1915, § 853), which was approved on March 13, 1913, and took effect on subsequent publication in ■ the statute book. Both acts amended and repealed section 1 of chapter 75 of the Laws of 1911. An analysis of their provisions discloses that the two measures were directed toward quite different ends. The purpose of chapter 75 was to permit combined water and electric light plants, to permit bonds to be issued without a separate vote on the water and electric light features of the combination, and to validate bonds already issued to build combined plants. In other respects.the former law was not changed.. The purpose of chapter 123 was to extend the old law to include authority to issue bonds for the purpose of “purchasing, extending and improving” the public utilities described, except street railway and telephone service, which were omitted. ■ Incidentally, cities of the first class were also omitted, because they were governed by a separate code. It is plain, therefore, that the two acts should be read together in order, to arrive at the full legislative intention. This may be done without encountering the slightest conflict, and the law as it now stands is chapter 123, with the additions to the old law which were lodged in chapter 75.
Some of the details of the bond election proceedings are criticized, but no irregularities occurred of sufficient consequence to require the district court to restrain issuance of the bonds, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff manufacturing company brought this action to recover the purchase price of certain machinery installed by the defendant,' G. A. Porter, in an elevator constructed by him at Hoxie for the defendant, The Farmers’ Union Co-operative Association.
The liability of Porter for the price of the goods is not denied; but this appeal is based upon the disputed question of the liability of the association as Porter’s guarantor.
The principal facts upon which the plaintiff seeks to fasten liability upon the defendant farmers’ association are these:
In September, 1915, Porter, who had a contract with his co-defendant to erect an elevator for the latter, ordered the ma-. chinery from plaintiff. Plaintiff declined to ship the machinery without some assurance from the association that .payment would be forthcoming.
The minutes of the association’s corporate record read:
“Directors Meeting, Oct. 2d, 1915.
“The Secretary is hereby instructed to write the Great Western Manufacturing Company, Kansas City, Missouri, that the Company or Association will guarantee the payment of machinery going into the elevator now under construction by G. A. Porter, under contract.”
The plaintiff received a letter from the secretary of the association which reads:
“Hoxie, Kans., Oct. 11, 1915.
“Great Western Mfg. Co., K. C., Mo.:
“Gentlemen — I have been directed by the Hoxie Farmers Union Co-op. Ass. Board of Directors to guarantee the payment of the $256.00 supplies for the elevator now under construction by G. A. Porter contractor.
“The Hoxie Farmers Union Co-operative Association,
“By John W. Schlicher, Seeretwry.”
About two weeks thereafter the defendant drew and delivered to Porter the following check:
Hoxie, Kans., Oct. 27, 1915. No. 83-558
“The First National Bank $260.00
“Pay to G. A. Porter E C contract or order Two Hundred Sixty 00/ioo Dollars for Great Western Elevator Supplies.
“J. R. Cooper
Indorsed on back: “G. A. Porter.” “F. U. Treasurer.”
Therefore the goods were shipped and delivered on November 6, 1915.
The defendant answered:
“That this defendant never at any time authorized any one to guarantee the payment of any sum to plaintiff herein; that this defendant never received any notice or claim from said plaintiff that plaintiff claimed to have any guarantee from this defendant, or that plaintiff had not been paid in full for all material that it had shipped to the said G. A. Porter, or claimed to have shipped', until long after this defendant had made settlement in full with the said G. A. Porter for all work and material furnished by the said G. A. Porter in the construction of the elevator for this defendant. That this defendant derived no benefit of any kind from any claim or arrangement of plaintiff.”
The plaintiff replied:
“In case said guaranty set out in plaintiff’s petition filed herein was executed by J. W. Schlicher, secretary of the Farmers Union Co-operative Association, without authority of the said Farmers Union Cooperative Association; said Farmers Union Co-operative Association has ratified said guaranty by failing to disaffirm same within a reasonable time after acquiring knowledge of said unauthorized act and by accept ing the benefits thereunder, and that said Farmers Union Co-operative Association is therefore estopped from denying said guaranty.”
On these issues the cause was tried to a jury. The plaintiff’s evidence tended to support the matters pleaded by it. The minutes of the directors’ meeting, the letter written to plaintiff by the secretary of the' association, and the company’s check, payable to Porter, for plaintiff’s supplies, were introduced. So, too, the by-laws of the association were in evidence. Two of these, in part, read:
“SEC. 5. Regular monthly meetings shall be held on the third Tuesday of each month. At the regular meeting of the board a thorough examination of the affairs of the company shall be made, and all officers shall submit full and complete statements at such meetings, showing all transactions since the previous meeting.
“SEC. 8. Quorum at Directors’ Meeting. Three members of the board of directors shall Constitute a quorum to do business at any meeting of the board. A less number may adjourn from day to day till a quorum can be secured.”
On behalf of the defendant elevator association the oral evidence tended to show that there was no formal meeting of the directors on October 2, 1915. The president of the association, who was also one of the five directors, testified:
“That he was the president of the Hoxie Farmers Union Co-operative Association on October 2, 1915, and a director of said Union, and, that he didn’t attend any directors meeting on October 2, 1915, that he was aware of; that he had no recollection and .that no knowledge came to him that a meeting was held on that day; that there were five directors of the company at that time, himself, Mr. Burr, Mr. Schlicher, Mr. Cooper and Mr. Wright; that at no time prior to October 2, 1915, or subsequent to that date or at any other time did he have knowledge of the board of directors making or instructing any one to guarantee the payment of any account of G. A. Porter; that the matter might have been talked of on the streets, but there was never any action taken by the board of directors, and the board of directors did not authorize any one to write the Great Western Manufacturing Company the letter dated October 11, 1915, guaranteeing the payment of $256.00 for supplies for the elevator under construction.”
A second director,' F. M. Burr, testified that he thought the directors had a meeting about October 2, but did not remember that the guaranty proposition had been mentioned. This witness admitted that the secretary of the company had told him about the guaranty "in the fall of 1915.”
The third director, L. J. Wright, did not remember consent ing to the guaranty, but did recall that something was said about it.
The fourth director, John Cooper, did not attend a directors’ meeting on October 2, but testified—
“Q. Did you have any conversation with Mr. Schlicher relative to this matter? A. Well, we probábly talked it over sometime when we might have met.”
The attorney for the defendant association testified that on February 14,1916, pursuant to authority of the association, he had written to the plaintiff:
“The Union will pay your claim, if it has not been paid, but will expect you to help them prosecute Porter if necessary.”
The verdict and judgment were for the defendant, and the principal error urged is that these are contrary to the evidence.
It seems clear that the judgment cannot stand. The forgetfulness of the directors touching the meeting of October 2 does not prove the defense which the association set up — that it had “never at any time authorized any one to guarantee the payment of any sum to plaintiff herein.” The minutes of the corporation clearly show that the guaranty was authorized on October 2. The by-laws show that after that date regular meetings of the directors were held, or should have been held, on the third Tuesday of each month. Several months elapsed before the liability of the association on its guaranty became a disputed question. At these subsequent monthly meetings there was ample opportunity to correct the minutes if they did not speak the truth. The elements of both estoppel and acquiescence intrude to bar the defense pleaded. Furthermore, in communicating with the plaintiff the secretary was acting within both the apparent and specific scope of his authority, and his letter bound the defendant association when the plaintiff, by shipping the goods pursuant to the secretary’s assurance, accepted and acted on the guaranty. Written notice of acceptance was not necessary. (Platter v. Green, 26 Kan. 252; and citations in note in 16 L. R. A., n. s., 355, et seq.)
„ Does this conclusion leave anything on which to base a new trial, or should judgment be ordered? The defense of want of authority on the part of the secretary to apprise the plaintiff that the association would guarantee the payment failed. The minutes of the corporation, standing unchallenged and uneorrected, for several months, estop the defendant to deny the guaranty. The check to Porter was intended to pay for plaintiff’s supplies. The check says so. That Porter converted the proceeds of the check does not relieve the association nor satisfy plaintiff’s claim. The attorney’s letter, written with admitted authority, recognizes and concedes the liability; and the record shows that in no way can the defendant rightfully prevail; and since all the material facts are incontrovertibly established, a new trial would confer no favor on the defendant, but only prolong litigation over a liability which defendant cannot escape, and judgment for plaintiff should be directed. (Civ. Code, § 581.)
Reversed with instructions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs are the parents of Peter McGarvie, a coal miner, who met his death in the defendant’s employment. Compensation for them was sought under a claim of their partial dependency on the deceased. The trial court found—
“From the evidence and admissions and pleadings that' the earnings of the said Peter McGarvie for the year previous to his death was . . . $528.51, and that three times said amount was . . . $1,585.53. The court further finds from the admissions and evidence introduced in said cause that the said plaintiffs, John McGarvie and Catherine McGarvie, were partially dependent upon the earnings of the said Peter McGarvie, deceased, and that said partial dependency amounted to seventeen-twenty- seconds (17/2z) of the earnings of said deceased, and that said plaintiffs are entitled to recover of and from said defendant seventeen-twenty-seeonds (1%2) of Fifteen Hundred Eighty-five and B%oo Dollars, the same being Twelve Hundred Twenty-five and i^foo ($1225.18) Dollars.”
Defendant contends that these findings were not supported by the evidence.
The family consisted of the mother, who was housewife, the father, who earned from $95 to $105 per month, one daughter who earned $95 per month, another daughter who earned $25 per month, and the deceased son, who earned $528.51 per annum.
The son gave all his wages to his mother; that is, he intrusted them to her, and his mother gave him back from time to time what money he desired. The son paid his parents no stipulated amount for his board and lodging, and the father testified that he did not know whether the son gave his mother more than his board and lodging would amount to or not. The mother’s testimony was to the same effect. She testified:
“Q. What did he do with his wages at that time? A. Well, gave them to me, always did.
“Q. And he always made his home with you? A. Yes, sir.
“Q. And he got his meals there? A. Yes sir.
“Q. Slept there? A. Yes sir.
“Q. Did you do his washing and mending and things of that kind? A. Yes sir.
“Q. Now do you know, Mrs. McGarvie, how much he g&ve you from his wages during the last year of his life? A. No, I don’t suppose I could tell what he gave me. He always gave me his wages.
“Q. Then would he ever take back any of it? A. Yes sir. ■ If he wanted any, he always came to me and got the money.
“Q. When he would buy clothes, he would get the money from you? A. Yes sir, he came to me for his money because he left it with me.
“Q. He went to places of amusement? A. Yes sir.
“Q. And traveled on the street cars and paid those expenses out of his earnings? A. Yes sir.
“Q. Did he shave himself or get shaved at a barber shop? A. At the barber shop.
“Q. How often? A. Well, I think twice a week.
“Q. And wore good clothes, didn’t he? A. Yes sir, he always wore good clothes.
“Q. And the money that he left with you there finally, Mrs. McGarvie, would he just about what his board, room, washing and mending and stuff of that kind would have cost him if he had been boarding? A. Well, I don’t know. I guess it would, sometimes.
“Q. And when he was not working and out .of emplojunent for any reason his board and his lodging and his washing and his mending went on just the same? A. Just the same.
“Q. Mrs. McGarvie what was the habits of your son? Was he in the habit of spending much money? A. No, he isn’t much of a saver but then he wasn’t a great spender, he didn’t save any, he gave it to me.
“Q. You got all of his money outside of his actual expenses away from the house? A. Yes sir.
“Q. And that, I understand you, wouldn’t exceed over ten or twelve dollars a month? A. Yes sir.
“Q. Did he wear good clothes? Did he buy them ready made? A. He alwáys wore good clothes.
“Q. Tailor made or ready made? A. Well, sometimes he would have them made, and sometimes bought them at the store.
“Q. He lived pretty well, did n’t he? A. Yes sir, he did.
“Q. And had as many of the comforts of life as he could get? A. I guess so.
“Q. And Mrs. McGarvie $10.00 a month would be about $120.00 a year. That wouldn’t clothe him would it? A. I didn’t say that, whether it would or not.
“Q. He could n’t get one tailor-made suit for less than $40.00 or $50.00 could he? A. No.
“Q. And then outside of that he was pretty well supplied with clothing wasn’t he? A. Yes sir.
“Q. Shirts? Collars? Underwear? Socks? Neckties? Hats? A. Yes sir.
“Q. And all those furnishings that a man of his age and his position would naturally want and naturally have? A. Yes sir.”
Whatever was the basis for the trial court’s determination that the son contributed % of his earnings toward the maintenance of his parents, we are unable to find any support for it in the evidence. Perhaps there was some small balance of his wages in the hands of the mother, which might have been used for plaintiffs’ support after deducting a fair allowance for the son’s board, lodging, and washing, and after deducting the indefinite but substantial sums returned to the son for his clothing and other expenses, but clearly it could not amount to *%2- of the money intrusted to the mother by her son. The proof does not show any contribution to his parents’ support. The father and mother both frankly admitted they did not know whether the mother’s receipts of money from the son ever exceeded a fair estimate for his board and lodging or not. In other words, the plaintiffs wholly failed to prove their partial dependency upon their son for support.
In Smith v. Sash & Door Co., 96 Kan. 816, 153 Pac. 533, cited by appellee, there was a positive showing of a substantial contribution by the deceased towards his parents’ support. In Fennimore v. Coal Co., 100 Kan. 372, 164 Pac. 265, no question was raised in this court touching the sufficiency of the evidence to prove that the deceased had in fact contributed something tangible and substantial towards his parents’ support.
A similar case was Connors v. Public Serv. Elec. Co., 89 N. J. Law, 99, where the son gave all his wages to his mother, which wages were more than the value of his board and lodging; consequently that son did in fact contribute' something substantial to the support of his parents. Here the difficulty is that the parents themselves with commendable candor admit that they do not know whether their son contributed anything to their support or not. Thus, the proof to sustain the finding and judgment fails, and the judgment must be reversed and the cause remanded with instructions to enter judgment for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action to recover on an accident insurance contract, in which the plaintiff prevailed.
The policy was issued by the defendant on May 16, 1907, and was continued in force by the payments of dues and assessments until September 13,1913, when the plaintiff was injured while pitching in a game of baseball. While the injury resulted in some pain at the time, it largely passed away and gave him little trouble until the last days of February following, when the pain became more severe, and upon an examination by a physician he learned for the first time that it was the result of the injury in the preceding September, and about that time he became totally disabled for work. Notice of the injury was not given to the defendant until March .12, 1914, and the constitution under which the policy was issued provided that written notice of an accident should-be given to the supreme secretary within ten days after it occurred. It is conceded that notice was not given within that period, but it is contended that the requirement was waived by the defendant, or at least it is not in -a position to rely on the failure as a defense. An insurance company may waive such limitation or estop itself to make the defense, that timely notice of the accident was not given. There is a provision in the policy to the effect that no officer or agent of the company is permitted to waive a constitutional provision, but this condition, like the one fixing the time of notice, may also be waived. The question then is: Did the defendant waive the condition, or is it estopped to make the defense that notice was not duly given? It appears that after the belated notice was given, the defendant forwarded claim blanks to be filled out and returned by the plaintiff. This was not promptly done, and the defendant in a letter advised plaintiff that blanks had been sent, but no proofs had been received, asking him to forward them promptly, adding that “If your injury did not prove as serious as you anticipated, and you do not intend to file a claim, pleasé advise us.” Plaintiff responded that his doctor had not yet returned the claim blanks to him, but that he would get them the proofs in a day or two. The proofs requested were furnished, and there is testimony to the effect that they were never returned to the plaintiff. The attorney of the defendant negotiated with the plaintiff, and after the proofs had been finished, the supreme surgeon visited him, and upon an examination of his claims at-that time requested the plaintiff to furnish other and additional proofs, upon the receipt of which he would take the matter up with the other officers of the order at Columbus. This proof plaintiff procured and furnished-according to request, at considerable trouble and expense to himself. Something had been said by plaintiff about bringing an action to recover the insur-, anee, and the supreme surgeon requested the plaintiff not to do so until the additional proofs had been sent in and passed upon by the supreme officers, and according to the testimony action was taken upon this proof by the officers and the claim was rejected. The supreme surgeon’s duties are to conduct correspondence and to investigate claims against the order, and to pass upon indemnity and death claims filed against the company. This officer undoubtedly had authority to waive the requirements as to notice, and in requesting the additional proofs and putting the plaintiff to the trouble and expense of procuring and sending such proofs, together with other circumstances that have been stated, effectually waived the condition as to notice. (Insurance Co. v. Davis, 59 Kan. 521, 53 Pac. 856; Wildey v. Sheppard, 61 Kan. 351, 59 Pac. 651; 1 C. J. 478.) Some of the testimony given by plaintiff respecting waiver was contradicted by that of the supreme surgeon, but the disputes in the case have been settled by the verdict of the jury. Although challenged, there is evidence to support the claim that the plaintiff’s disability was the result of the accident, and also that it was immediate and continuous within the meaning of the contract. The result of the accident did not develop at once, and the testimony is that injuries of the sacroiliac joint, as this was, do not manifest themselves sometimes, so as to permanently disable an injured person for six months or a year after the injury is sustained. It may be inferred from the testimony that the disability was reached within the time that the processes of nature take to effect such, a development. So far as the provision relating to the immediate and continuous character of the disability is concerned, it has been held that the term “immediate,” as used in contracts of this character, does not mean “instantly” or “at once,” and that:
“A disability is immediate, within the meaning- of such contracts, when it follows directly from an accidental hurt, within such time as the processes of nature consume in bringing- the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation.” (Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020.)
(See, also, Continental Casualty Co. v. Matthis, 150 Ky. 477; Hohn v. Inter-State Casualty Co., 115 Mich. 79.)
Within the rule of the Barnes case the plaintiff is entitled to recover, although considerable time elapsed between the injury and the time it developed into total disability, and it ap pears from the testimony that he recovered for no greater time than the disability existed.
Attention is called to the provision in the constitution of the defendant, that all actions against the company must be brought within six months after the disallowance of a claim against the defendant. This action was not brought within that period. It was brought, however, within the time specified in the civil code for the bringing of actions of this kind, and the legislature has provided that:
“Any agreement for a different time for the commencement of actions from the times in this act provided shall be null and void as to such agreement.” (Gen. Stat. 1915, § 6907.)
Some objections are made to the instructions, but we find nothing substantial in them, and no sufficient reasons appear for reversing the judgment.
It is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
C. A. West brought an action against Wm. Brugger for the specific performance of a contract for a mining lease. Brugger defended on the ground that the plaintiffs privileges under the contract had been forfeited in consequence of a cessation of work thereunder for a period of ten days. A trial resulted in a judgment denying the plaintiff relief, and he appeals. N. W. Moxley was joined as a defendant, but, as the vital controversy was between West and Brugger, the latter will be spoken of as the defendant.
On August 10, 1916, the defendant, being the owner of a quarter section of land, executed to the plaintiff a contract by which the latter was given the right (and on his part agreed) to prospect and mine for ore thereon; all mineral produced during the prospecting period to be marketed, and the defendant to receive a royalty of iy% percent. Two of the provisions of the contract read:
“Said party of the second-part [the plaintiff], heirs or assigns, further agree to begin operations within forty days from the date hereof, and agree to work in good faith, and not cease work for more than ten days at any time without permission of party of the first part, delays caused by unavoidable accident or causes beyond the control of said second party alone excepted. ... It is further agreed and fully understood that in case the said party of the second part, his heirs or assigns do not prospect, mine or develop said tract or parcel of land, or cause the same to be done as hereinbefore set forth and stated, on or before the 20th 'day of September, 1916, or shall fail in any particular to carry out any of the provisions of this contract, the same shall thereupon become void and of no effect whatever, and in the event thq said party of the first part may declare this contract forfeited by serving written notice upon the party of the second part, either in person or through the mail at the last known address of the party of the second part, stating that said contract has been forfeited, and thereupon said party of the first part may take immediate possession of said tract or parcel of land without giving notice to quit, demand of possession or any legal proceedings whatever, and the party of the second part hereby agrees to leave said premises.”
A further agreement was included, to the effect that if on or before September 20 the plaintiff or his assigns should discover and develop ore in paying quantities, and should proceed to carry out the objects of the contract by erecting the appropriate works to put the mineral in marketable condition, the defendant would grant him (or his successors) a ten-year mining lease of an agreed form.
The time within which operations were to be begun was extended by agreement. On October 14, 1916, the plaintiff subleased the south eighty acres to N. W. Moxley, executing to him two contracts quite similar to that already described, one covering the southwest quarter of the 160-acre tract, in which a royalty of 10 percent was reserved, and the other covering the southeast quarter, in which the royalty named was 7% percent —the same as that of the defendant under the original agreement. Moxley at once began work upon the southwest quarter, the time of such commencement being satisfactory to the defendant. Shortly afterwards Moxley “sublet or subcontracted” the premises to a party of four, which included W. T. Hale and A. Y. Young. This party employed Moxley to continue the work for them, and for a time he did so. On February 17, 1917, the plaintiff assigned his rights under his contract with the defendant to George J. Kusterer and three others, who agreed to pay royalties of 12% percent on the north half of the tract, 10 percent on the southwest quarter, and 7% percent on the southeast quarter. A stipulation Was inserted in the assignment that any work being done on the quarter section by the persons then holding contracts should be considered a compliance with the original contract with the defendant. On February 26,1917, this work ceased and was not resumed prior to March 10, 1917, on which date the defendant served upon the plaintiff in person a written notice declaring the contract at an end and all rights thereunder forfeited by reason of that fact. The controversy turns upon the validity of this attempted forfeiture.
The plaintiff contends that the contract does not give the defendant the right of forfeiture for any breach excepting a failure, to begin work at the time specified (which was waived), or a default in regard to cleaning and marketing the mineral, or paying the royalty. We do not accept this view. It is true the contract provided in so many words for a forfeiture in case the defendant (or his successors) should not prospect, mine or develop the tract by September 20 (the reference being shown by the context to be to the commencement of operations), and did not specifically authorize a forfeiture on account of a cessation of work for ten days, but. we regard the clause relating to the avoidance of the contract for a failure in any particular to carry out any of its provisions, as covering such a suspension of operations. The continuous prosecution of the work was obviously of as much importance as the time of commencement, and without it the requirement in the latter respect would afford little protection.
The plaintiff also insists that the waiving of the time of beginning work carried with it a waiver of the ten-day rule. We cannot assent to this. The two requirements were closely related, but in a sense independent of each other. The fact that the defendant was willing to defer the beginning of operations from time to time does not in the least imply that he was willing that they might be suspended for an indefinite period at the convenience or pleasure of the other party.
The plaintiff challenges the validity of the forfeiture on the ground that no notice thereof was served on any one but himself. Inasmuch as the contract, while running to the plaintiff, his heirs and assigns, provided for a service of notice of forfeiture only upon him, it may be questioned whether the defendant was required to serve notice on any one else. But at all events, he owed no duty to the plaintiff to serve the plaintiff’s assignees or subtenants or subcontractors. Therefore, the plaintiff can found no right in this proceeding upon the omission of the defendant to give notice to any third person, and no ope except himself is here complaining. A separate action was brought by Kusterer and his associates against the defendant, involving much the same controversy. By agreement the two cases were heard at the same time upon the same evidence, but they were not consolidated. In each a judgment was rendered in favor of the defendant, but no appeal has been taken excepting in the action brought by West.
After the defendant had served the notice of forfeiture he made a new contract with Moxley, under which the latter was to continue operations in his own behalf. The plaintiff suggests that the rules applicable to landlord and tenant apply, and that Moxley, having entered the land under contract with the plaintiff, could not dispute his title, and could not attorn to the defendant, or receive possession from the defendant without having first restored it to the plaintiff. We do not. regard the point as well taken. The relation of the parties was not strictly that of landlord and tenant, although the analogy may be close. But in any event, while a tenant may not dispute that his landlord had a good title when he put him in possession, he is not estopped to assert that that title has been lost, and in that event he may recognize the new title. (Sheaff v. Husted, 60 Kan. 770, 57 Pac. 976; 16 R. C. L. 665.) Moreover, the real controversy here is between the plaintiff and Brugger, the principal defendant. The relation of Moxley to the matter is quite incidential, and if Brugger’s effort to extinguish the plaintiff’s right to the land was effectual, theré is nothing substantial to be litigated between the plaintiff and Moxley.
The vital dispute in the case turns upon a question of fact. The plaintiff asserts that the proceedings for a forfeiture were entirely without legal effect, because they were collusive, and were planned and carried out in bad faith. His version of the affair is, in substance, this:
After Hale and his associates had arranged with Moxley to do the work in their behalf, one of them, White, failed to meet his share of the expenses. Therefore, in order to get rid of White, Hale and his other associates arranged with Moxley, the defendant being a party to the plan and consenting to it, that all work should be stopped for ten days, and that upon that ground a notice of forfeiture should be served with the purpose of cutting off the rights of White, it being understood by all the participants in the scheme that as soon as this had been accomplished the work was to be resumed upon the same basis as before, no rights to be affected excepting those of White,
The plaintiff’s evidence was sufficient to make a prima facie case in support of this version of the transaction, and it was doubtless for this reason that the trial court overruled a demurrer thereto. But the defendant introduced evidence of a contrary tendency. He swore that the persons who were conducting the operations told him' they were through, giving as a reason that at one time they didn’t find anything, and that the plaintiff had made a deal with some one else and didn’t have to be drilling, and also saying that Young wouldn’t put up his part. He also testified that he didn’t know that Moxley was going to quit, and had no agreement with him to give him a contract on any part of the land. It is true, as argued by the plaintiff, that there are features of the record that seem to lend support to his contentions on this phase of the case, but the question was one of fact, upon which the decision of the trial court is conclusive. The plaintiff cites cases holding that in an equitable action a reversal will be ordered on appeal if the judgment is thought by the reviewing court to be against the weight of the evidence, but that is not the practice in this jurisdiction. It may be mentioned as bearing upon the equities of the case that the plaintiff testified that two days before being served with the notice he learned that the defendant was going to declare a forfeiture against all the claimants under the contract.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from an order sustaining a demurrer to his evidence and from the overruling of his motion for a new trial. In his petition he alleged, in substance,' that the defendant verbally applied to him, a loan broker, for a loan of $7,000 on some land and employed him to secure such loan for a period of five years at five percent interest; that he secured such loan; that it was verbally understood and agreed that for his services defendant would pay him five percent of its amount, $350; that, having fully carried out his part of the agreement, the defendant had refused to pay him, except the sum of $200, leaving $150 due, for which judgment was prayed.
The plaintiff testified that the defendant applied to him for a loan of $7,000 on real estate which was then mortgaged for $5,000 about to mature; that the defendant asked him for a special rate on the commission and was informed that the pre vailing rate was one percent a year, and plaintiff stated that he could not make any concession on the commission, and the defendant thereupon, without objection, signed the'application to the loan company. This application contained a clause to the effect that in all the transactions relative to the loan between the company or its agent and the defendant the company, was to act solely in defendant’s behalf and not as agent of any other person connected with or interested in the loan. Plaintiff further testified that previous to the disbursement of the proceeds of the loan he advanced the defendant $1,800, the original loan of $5,000 having been paid from the proceeds of the new loan; that the defendant said he could 'get a loan from another party at a less rate, but that plaintiff telephoned the party, who denied that this could be done, and the plaintiff then stated to the defendant that the usual commission would be expected in.this case; that after the loan had been approved and the money forwarded he called upon the defendant with the figures of a final settlement and a note for $350 for six months to take card of the commission; that the defendant did not say anything in particular, except that the commission was too large and asked him to throw off his commission, saying that the $200 which the plaintiff retained was sufficient for his services.
The application is silent as to any compensation to be paid the loan company. The defendant admitted that he was to pay the plaintiff $12.50 for his services and filed a counterclaim for the $200 retained by him less this amount, but after the ruling on the demurrer dismissed the counterclaim.
The plaintiff seems to claim that the commission of $350 was to be divided between the loan company and himself in proportion of $210 and $140, respectively, although, as already indicated, the application made no mention of commission.
It.is conceded that $5,000 of the money went to. pay off a prior loan. It is not claimed that the defendant had any contract with the loan company for the payment of a commission, except as made with the plaintiff, its local correspondent, but there was testimony tending to show that the defendant agreed with him to pay a commission of $350, and the mere fact that the application recited that all the transactions touching the loan should be had with the company, and not with any one else, does not furnish a sufficient reason to bar the plaintiff from recovering whatever the defendant agreed to pay him, if anything.
The trial court said, in passing upon the demurrer, that as the plaintiff signed the papers as agent or correspondent of the loan company he would not be allowed to say that he was also acting for the plaintiff at the same time and entitled to a commission. But there is no evidence or intimation that the plaintiff did not bargain in reference to a commission with the full knowledge and approval of both the borrower and the lender, and, if he thus dealt with them, neither can justly withhold from him the agreed compensation. (Beeson v. Trainer, 97 Kan. 523, 155 Pac. 939, and cases cited.)
Whatever the facts of the case turn out to be and whatever may be the right of the loan company, enough evidence was introduced on behalf of the plaintiff to entitle him to go to the jury, and it was error to sustain the demurrer.
The plaintiff’s motion for new trial asked a vacation of the order sustaining the demurrer. It is said that the motion does not contain either of the statutory grounds for a new trial and does not call the attention of the court to error in sustaining the demurrer to the evidence. One of the grounds for new trial is erroneous rulings or instructions of the court. (Civ. Code, § 305.) One of the grounds alleged here was error of law occurring in the trial court arid excepted to by the defendant at the time; another, that the order (sustaining the demurrer) was contrary to law. While the grounds mentioned in the abstract are not set forth in full accordance with the section of the code referred to, it can hardly be held that they utterly failed to call attention to the claim that it was error to sustain the demurrer to the evidence. Although impropriety of a motion for new trial when a demurrer to-the evidence has been sustained is not suggested, see Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299; Van Tuyl v. Morrow, 77 Kan. 849, 92 Pac. 303; and Bank v. Goodrich, 96 Kan. 719, 153 Pac. 541.
The judgment is reversed and the cause remanded for further proceedings in accordance herewith.. | [
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The opinion of the court was delivered by
WEST, J.:
Plaintiff sued to oust the defendant from the office of county surveyor, claiming to be entitled thereto himself, and appeals from the judgment of the court finding the office vacant.
On May 8, 1917, the defendant was the county surveyor, and desired to be appointed county engineer under section 8 of chapter 264 of the Laws of 1917, and, as the record of the county board shows, he was appointed county engineer “provided that he 'resign the office of county surveyor on or before the first day of June, 1917,” and his resignation as county surveyor, to become effective June 1,1917, was accepted by the board on the same date. On May 17 he wrote the governor that he had been appointed engineer and that as he had been requested to resign as surveyor the'governor was asked to appoint his son, Fred W. Robson, to succeed him. On the same date the son wrote the governor making application for the appointment. The defendant was not confirmed by the highway commission neither was his son appointed county surveyor by the governor. On the 25th day of June the board, apparently having come to the conclusion that the resignation should have been made to the governor and not to itself, ordered that the proceedings of May 8 regarding the resignation of the defendant be annulled. In the meantime, on May 26, the governor had commissioned the plaintiff as county surveyor, and he had filed his official bond.
The court found that the defendant resigned as county surveyor on May 17, 1917, to take effect June 1st; that on May 26 the resignation was accepted by the governor; that on June 1 the office became vacant; and that the purported appointment of Cornelius was without force and effect.
It is claimed by the plaintiff that that part of section 8 providing that in event of vacancy in the office of county surveyor the county commissioners shall appoint the county engineer to fill the vacancy for the unexpired term is void because not within the title of the act; that under section 4355 of the General Statutes of 1915 the resignation should have been accepted and the appointment made by the governor, and not by the county board; that the appointment of the plaintiff was in ac cordance with law; and that the letter of the defendant to the governor constituted a resignation.
Chapter 264 of the Laws of 1917 is a .comprehensive act of 59 sections, entitled “An Act relating to roads and highways, creating a state highway commission,. defining its powers and duties, and providing fines and punishment for the violation hereof,” and repealing certain specified sections of the General Statutes of 1915 “and all acts or parts of acts inconsistent or in conflict with this act.” One object was to secure the federal aid provided by the act of congress approved July 11, 1916, “in the construction of rural post roads, and for other purposes.” Full and detailed provisions are made for the appointment and duties of county engineers, and section 8 requires that the board of county commissioners of each county, within six months after the taking effect of the act, shall appoint a county engineer, one proviso being that—
“in event of vacancy in the office of county surveyor the county commissioners shall appoint the county, engineer to fill the vacancy for the unexpired, term.”
Section 4355 of General Statutes of 1915 provides that “all vacancies in ariy . . . county office . . . unless otherwise' provided for by law, shall be filled by appointment from the governor. . . .”
Considering the title and purpose of chapter 264, it is held that the quoted proviso to section 8 is germane to the subject and fairly comprehended within the scope of the title and vests the appointment in the county board. (Woodruff v. Baldwin, 23 Kan. 491; Lynch v. Chase, 55 Kan. 367, 40 Pac. 666; The State v. Everhardy, 75 Kan. 851, 90 Pac. 276; Rural School District v. Davis, 96 Kan. 647, 152 Pac. 666; Henry v. Railway Co., 98 Kan. 567, 570, 158 Pac. 857.)
The same legislature which enacted this chapter plainly expressed its intention to supersede county surveyors by county engineers after the second Monday of January, 1919, by the passage of chapter 145, providing that after that date the county engineer shall perform the duties of county surveyor, save in certain excepted counties. But in this instance the required confirmation by the highway commission was not forthcoming, and hence the appointment was ineffective.
Whether the board or the governor were the proper recipient and acceptor of such resignation need not be determined, as each attempted to accept, or in fact treated the resignation as accepted, and the trial court correctly concluded that the power to appoint did not rest with the governor.
While there was some, discussion between the defendant and members of the board about a conditional resignation, the record sufficiently shows a complete and unconditional resignation which left the office vacant on June 1, which vacancy has not been lawfully filled.
The judgment that the office is vacant is therefore affirmed. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
This was an action for libel. Plaintiff alleged that the defendant, which owns a newspaper having a large circulation in and about the city of Hutchinson, had published in its Sunday morning issue the following of and concerning the plaintiff:
“Raided Rooming House — Sheriff Scott Sprout yesterday raided the rooming house on First Avenue West conducted by Ruth Newman. Two girls,* Bess Stolen and Minnie Hatfield, were charged with being inmates of an immoral house and the Newman woman with running an immoral house. They were released on $500 bail.”
It was further alleged that the charge that plaintiff was an inmate of an immoral house was-untrue, and that the publication caused her great mental anguish, humiliation, and injury. The defense was a general denial, and an averment that the language used in the article had no reference to the plaintiff and was so understood by persons reading it; and that there were other persons living in that community where the paper was circulated named Minnie Hatfield. It was admitted that the circulation of the newspaper on the morning in question was between seven and eight thousand, and there is no claim that the charge mentioned in the article as against plaintiff was true. It appears that one of the parties arrested was named Minnie Olson; that the defendant’s reporter had a conversation with the sheriff who made the raid preparatory to the writing of the item for the paper; that he failed to ascertain the names of the parties involved; and, through mistake, wrote the name of Minnie Hatfield instead of Minnie Olson. Plaintiff’s attorney was informed by defendant’s manager that an apology would be printed and the article republished with the name corrected. The article was again published with the change of names, but no explanation nor apology accompanied it. It does not appear that there was any other person in the Community by the name of Minnie Hatfield, nor that the reporter made any effort to verify the names of the parties arrested by looking up the court record. Plaintiff asked for a peremptory instruction, and it was refused. Verdict and judgment were in favor of the defendant,- and the plaintiff appeals. •
The publication in plain terms specifically charged the plaintiff,t a single woman of unquestioned character and reputation, with unchastity and immorality. As the imputation was untrue, malice is inferred, and of itself it constitutes a libel. (Cooper v. Seaverns, 81 Kan. 267, 105 Pac. 509.) The only excuse is that a mistake was made in’the use of plaintiff’s name, the writer saying that he did not know the plaintiff and had no intention to hurt her, and also that he did not know how he came to use her name. This is not a valid excuse. The imputation against the plaintiff was just as hurtful as if the writer had been acquainted with the plaintiff and had intentionally applied the charge to her. The law looks to the tendency and consequences of a publication rather than to the intention of the publisher. It is generally said that malice is a necessary element in libel, but that element is present where the publication of a false charge is made without a legal excuse. When the falsity of the charge was conceded, malice was‘established. There is no excuse for a false charge of unchastity and immorality which would be understood by reasonable people to refer to plaintiff, and especially where, as here, there is a lack of care and diligence on the part of the publisher to ascertain the real facts before the publication is' made. One who makes an untrue charge of the kind in question, whether it is done recklessly or with care, does so at his peril and takes the risk of liability for resulting injury. . It has been held that “it is not a legal excuse that defamatory matter was published accidentally or inadvertently, or with good motives and in an honest belief in its truth.” (Moore v. Francis et al., 121 N. Y. 199, 207.) It has also been held that—
“Publication of the portrait of one person with statements thereunder as of another, by mistake, and without knowledge of whom the portrait really is, is not an excuse. A libel is -harmful on its face, and one publishing manifestly hurtful statements concerning an individual .does so at his peril; and, if there is no justification other than that it was news or advertising, he is liable if the statements are false or are true only of some one else.” (Peak v. Tribune Co., 214 U. S. 185, syl. ¶ 2.)
It is generally held that an honest mistake in identity is no defense to an action for libel, although it may be admissible in mitigation of damages. (Dunlevy v. Wolferman, 106 Mo. App. 46; Jones v. Murray, 167 Mo. 25; Greer v. White, 90 Ark. 117; See, also, Farley v. Publishing Co., 113 Mo. App. 216; Wandt v. Hearst’s Chicago American, 129 Wis. 419; Note, 47 L. R. A., n. s., 240.)
The defendant relies on section 126 of the civil code, which provides: facts, showing that the defamatory matter was published or spoken of him.” (Gen. Stat. 1915, §7018.)
“In an action for libel or slander, it shall be sufficient to state, generally, that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove, on the trial, the
It is contended that plaintiff failed to comply with the requirements of this section, in that she did not prove that the publication related to her or that persons reading it would understand it had reference to her. The statute does not change the general rule that has been stated. The provisions apply to cases where there is indefiniteness as to persons defamed. The legislative purpose manifestly was to avoid setting forth at length the extrinsic facts tending to show that plaintiff was the one referred to and making sufficient a general averment that the defamatory words were spoken or published of the plaintiff. In such a case, if the general averment is denied, it devolves upon the plaintiff to prove it as fully as if the extrinsic facts and circumstances pointing to the plaintiff had been' alleged, and probably this much would have been required if no provision had been made as to the proof. Here there is no indefiniteness. The reference to the plaintiff by name was specific; plaintiff was the only Minnie Hatfield in the city; all who knew her would reasonably infer that she was the person against whom the charge was directed; the defamatory words are actionable per se; and no other proof was necessary as to the object of the libel, nor as to the injury to the plaintiff by reason of the publication.
So far as the damages are concerned, general damages from such a publication arise by inference of law and need not be proved. (Odgers on Libel and Slander, 5th ed., p. 372.) In view of the fact that no valid defense was made and that the proof showed without dispute that there was no legal excuse for the libel, only a question of law was presented, and the court should have instructed the jury that the only question for its determination was the amount of damages sustained by the plaintiff. Instead of that, the court appears to have submitted to the jury the question whether the publication referred to the plaintiff or to some other person, and instructed them that, unless it was shown that the publication was made of and concerning her and was false, a verdict must be returned for the defendant.
There is a suggestion that a settlement was made, based on the fact that the attorney of the plaintiff asked the defendant for a retraction and an apology, which were promised to be made, and that subsequently the article was republished substituting the name of Minnie Olson for that of the plaintiff in the article, but making no other change nor explanation. No retraction or'apology was published, but even if it had been, the arrangement made would not have amounted to a settlement.
The judgment is reversed and the cause remanded for trial as to the amount of the damages to which plaintiff is entitled. | [
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|
The opinion of the court was delivered by
Larson, J.:
While responding to a fire call, Riley County volunteer firefighter Gaiy Soupene was killed when his vehicle collided with that of another volunteer firefighter, Robert Lignitz. Soupene’s estate and heirs brought a damage action against Lignitz. The trial court granted Lignitz’ motion for summary judgment because both Soupene and Lignitz were covered by the Kansas Workers Compensation Act (Act) at the time the accident occurred and suits between co-employees are prohibited by K.S.A. 44-501(b). We have jurisdiction of the Soupenes’ appeal under K.S.A. 20-3018(c).
This appeal involves the application of the “going and coming rule” of K.S.A. 44-508(f). If the volunteer firefighters were excluded from coverage of the Act by this provision, the suit may be maintained. If they were covered by the Act, the suit is precluded.
Factual Statement
There is no disagreement as to the facts, which the trial court summarized as follows:
At the time of the accident, both Soupene and Lignitz were volunteer firefighters for the Riley County Fire District #1 and were responding to a fire call. The accident occurred when Soupene was turning into a driveway to pick up another volunteer firefighter.
Most volunteer firefighters in the Fire District carried pagers to notify them when a fire had been reported in the district. Upon receiving notice of a fire, a firefighter was expected to respond to a call by proceeding to the station in Zeandale, Kansas, or directly to the fire location if known by the firefighter.
Volunteer firefighters of the Fire District are covered under the provisions of the Act for injuries or death by accident arising out of and in the course of their employment.
Soupene’s estate executed a release to the Board of Commissioners of Riley County, Kansas, of all claims or benefits which may have accrued under the provisions of the Act in exchange for the sum of $3,300.
Lignitz’ motion for summary judgment claimed both he and Soupene were in the course of fheir employment as volunteer firefighters at the time of the accident and the “going and coming rule,” set forth in K.S.A. 44-508(f), did not apply. This rule excludes from coverage under the Act those injuries occurring while an employee is on the way to assume duties of employment or after leaving such duties. Lignitz also asserted a subsequent legislative amendment to K.S.A. 44-508(f), L. 1996, ch. 79, § 3, which exempts providers of emergency services responding to an emergency from the going and coming rule, merely clarified existing law.
The Soupenes argued the 1996 amendment actually modified the Act so as to start covering volunteer firefighters on fheir way to the station who previously were not covered under the Act. They further claim that traveling on a public roadway while responding to a fire is not an integral or necessary part of a volunteer firefighter’s employment and should not constitute an exception to the going and coming rule of K.S.A. 44-508(f).
In granting Lignitz’ motion for summaiy judgment, the trial court noted that in responding to a fire call, there is a special degree of inconvenience and urgency inherent in the position of a volunteer firefighter which is part of the service for which the worker is employed. The court held that in order to avoid conceptual difficulties in determining when volunteer firefighters have “arrived” at fheir place of employment, volunteer firefighters must be deemed to begin their employment when an emergency call is received and they begin to respond. Finally, the court concluded that the 1996 amendment to K.S.A. 44-508(f) merely clarified the law existing at the time of the accident and corresponded to the court’s own analysis.
Analysis
The questions involved in this case are those of statutory construction, which are questions of law over which we have unlimited review. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
We recently stated:
“We initially note our fundamental rule of construction that it is the intent of the legislature, where it can be ascertained, which governs the construction of a statute. See City of Wichita v. 200 South Broadway, 253 Kan. 434,436, 855 P.2d 956 (1993). The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. We will not read into legislation provisions which do not there exist. See Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm'rs, 247 Kan. 625, 633, 802 P.2d 1231 (1990).” Marais des Cygnes Valley Teachers’ Ass’n. v. U.S.D. No 456, 264 Kan. 247, 954 P.2d 1096 (1998).
Although appellate courts will not speculate as to the legislative intent of a plain and unambiguous statute, State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997), where the construction of a statute on its face is uncertain, the court may examine the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various suggested interpretations. Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996).
“Ordinarily, there is a presumption that a change in the language of a statute results from the legislative purpose to change its effect, but this presumption may be strong or weak according to the circumstances, and may be wanting altogether in a particular case.” Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982). However, we have also stated: “Ordinarily, courts presume that, by changing the language of a statute, the legislature intends either to clarify its meaning or to change its effect.” (Emphasis added.) Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989) (citing U.S.D. 512, 231 Kan. at 731). The authors of 82 C.J.S., Statutes § 384(a), p. 897 noted: “It is presumed that an amendment is made to effect some purpose, which may be either to alter the operation and effect of earlier provisions or to clarify the meaning thereof.”
K.S.A. 44-501 of the Workers Compensation Act begins:
“(a) If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be hable to pay compensation to the employee in accordance with the provisions of the workers compensation act. . . .
“(b) Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be hable for any injury for which compensation is recoverable under the workers compensation act ... .
“(g) It is the intent of the legislature that the workers compensation act shall be liberally construed for the purpose of bringing employers and employees within the provisions of the act to provide the protections of the workers compensation act to both. . . .”
K.S.A. 44-508(b) defines “employee” to include
“persons serving on a volunteer basis as duly.authorized law enforcement officers, ambulance attendants, mobile intensive care technicians, [or] firefighters, but only to the extent and during such periods as they are so serving in such capacities.”
The applicability of the Act to the Fire District is established through the provisions of K.S.A. 44-505(a)(4) and K.S.A. 44-505d and the stipulation of the parties that the Fire District had made no election excepting it from coverage under the Act.
K.S.A. 44-508(f) excludes certain injuries from the Act. Prior to an amendment in 1996, the statute provided:
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”
In 1996, subsequent to the accident, the legislature amended K.S.A. 44-508(f) to add the following language:
“An employee shall not be construed as being on the way to assume the duties of employment, if the employee is a provider of emergency services responding to an emergency.” L. 1996, ch. 79, § 3.
The Soupenes emphasize this change in the language of K.S.A. 44-508(f) and vehemently argue that Lignitz has failed to produce evidence rebutting the presumption of statutory construction that a change in the wording of a statute implies a change in the law. Actually, there is no burden to produce “evidence” to rebut the effect of a legal presumption regarding a matter of statutory construction; rather, sound legal analysis of the statute at issue and its historical background may be sufficient to defeat the presumption.
Although a presumption exists that a change in the language of a statute may indicate a change in the law, our appellate courts have often held that a change in the law merely reflects the legislature’s attempt to clarify the law. See, e.g., Williams v. Kansas Dept. of SRS, 258 Kan. 161, 174, 899 P.2d 452 (1995); Finstad v. Washburn University, 252 Kan. 465, 473, 845 P.2d 685 (1993); and Lee v. Boeing Co., 21 Kan. App. 2d 365, 371, 899 P.2d 516 (1995).
In addition, 82 C.J.S., Statutes § 384(a), pp. 899-900 provides:
“An amendment to an act may be resorted to for the discovery of the legislative intention in the enactment amended, as where the act amended is ambiguous. An amendment which in effect construes and clarifies a prior statute must be accepted as the legislative declaration of the meaning of the original act . . . .”
In § 384(b)(2), pp. 906-07, the authors proceed to state:
“While a radical change in the phraseology of the statute amended is generally to be regarded as a legislative declaration that the law so amended did not as originally framed embrace the amended provision, an amendment making a statute directly applicable to a particular case is not a conclusive admission by the legislature that the statute did not originally cover such a case . . . .”
The matter before us in the present case is one of first impression. There is no indication that the legislature enacted the amendment to K.S.A. 44-508(f) in order to change an existing judicial interpretation of the statute. Therefore, we first determine if the going and coming rule applied to volunteer firefighters responding to an emergency prior to the amendment so as to exclude such volunteers from coverage under the Act. In making this determination, we bear in mind the legislature has subsequently amended the Act to clearly state coverage exists under the Act for volunteer firefighters responding to an emergency.
When considering whether the going and coming rule, applied to the facts of the present case, bars or allows coverage under the Act, it is helpful to first examine what has been said on this subject in 1 Larson’s Workers’ Compensation Law (1997). In considering the meaning of “course of employment,” § 14.00 provides: “An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be, and while the employee is fulfilling work duties or engaged in doing something incidental thereto.” Section 15.00 goes on to state:
“As to employees having fixed hours and place of work, injuries occurring on the premises while they are going to and from work before or after working hours or at lunchtime are compensable, but if the injury occurs off the premises, it is not compensable, subject to several exceptions. Underlying some of these exceptions is the principle that course of employment should extend to any injury which occurred at a point where the employee was within range of dangers associated with the employment.”
Next, § 16.00 describes one of the exceptions to the general going and coming rule to be the following:
“The rule excluding off-premises injuries during the journey to and from work does not apply if the making of that journey, or the special degree of inconvenience or urgency under which it is made, whether or not separately compensated for, is in itself a substantial part of the service for which the worker is employed.”
Section 16.04 provides:
“Several so-called ‘exceptions’ to the basic premises rule on going and coming are applications of this principle: employees sent on special errands; employees continuously on call; and employees who are paid for their time while traveling or for their transportation expenses. The explanation of these exceptions, and the clue to their proper limits, is found in the principle that the journey is an inherent part of the service.”
Section 16.15 adds to the previous exception: “The element of urgency may supply the necessary factor converting a trip into a special errand.” Section 16.16 brings employees who are on call into the exception when responding to an errand pursuant to a call. Section 16.17 discusses how police officers are brought within the general on-call rule, but goes on to note that sometimes police officers are granted coverage even in the course of an ordinary going and coming journey.
In Kansas, we have recognized an exception to the general going and coming rule which applies when travel upon the public roadways is an integral or necessary part of the employment. Kindel v. Ferco Rental, Inc., 258 Kan. 272, 277, 899 P.2d 1058 (1995). In Kindel, we decided that an accident which occurred in a company vehicle transporting construction workers to a remote job site fell within this exception, even though the employees had stopped at a bar on the way home.
The decision in Kindel relied in part upon Angleton v. Starkan, Inc., 250 Kan. 711, 828 P.2d 933 (1992). In Angleton, we granted coverage under the Act to the driver of a cattle truck who was killed after being lured to the side of the road by hijackers who invited him to smoke marijuana with them.
In both of these cases, we determined that the injuries for which recovery was sought arose out of and in the course of the employment. We have stated:
“The two phrases arising ‘out of’ and ‘in the course of’ employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings; they are conjunctive, and each condition must exist before compensation is allowable. The phrase ‘out of’ employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. An injury arises ‘out of’ employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Thus, an injury arises ‘out of’ employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase ‘in the course of’ employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service. [Citations omitted.]” Kindel, 258 Kan. at 278.
Our Kansas case most on point and primarily relied upon by the trial court is Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984). There, the Court of Appeals decided that an employee’s death in a truck accident which occurred while he was on the way home from a distant oil and gas drilling site was covered under the Act. Citing Bell v. Allison Drilling Co., 175 Kan. 441, 264 P.2d 1069 (1953), and Newman v. Bennett, 212 Kan. 562, 512 P.2d 497 (1973), the Court of Appeals found travel to and from distant drilling sites was an integral and necessary part of the employment which benefitted the employer. 9 Kan. App. 2d at 440. The Messenger court quoted Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 382-83, 416 P.2d 754 (1966):
‘“While the statute does not define the place where the employee is “to assume the duties of employment,” our decisions are to the effect it is a place where an employee may reasonably be during the time he is doing what a person so employed may reasonably do during or while the employment is in progress. They require that the employee be engaged in some activity contemplated by and causally related to the employment. [Citations omitted.]’ ” 9 Kan. App. 2d at 436.
Responding to emergency calls is an integral and necessary part of a volunteer firefighter’s duties, which entails a special degree of inconvenience and urgency. When an emergency call is received, volunteer firefighters are expected to report either to the fire station or to the site of the fire. Volunteer firefighters have no set hours of employment, but rather are on call and assume the duties of their employment when they receive an emergency call and begin to respond.
Responding to an emergency call is an activity contemplated by and causally related to the employment of a volunteer firefighter. In addition, an accident which occurs while responding to such an emergency both arises out of and is in the course of file employment. Soupene’s accident arose out of the nature, obligations, and incidents of his employment, as he was required to proceed to the fire station or the location of the fire after receiving an emergency call. There is a rational causal connection between the accident and the conditions under which he was required to perform his duties. Furthermore, the accident occurred in the course of Soupene’s employment, as he had assumed the duties related to his employment when he began responding to the emergency call.
This result corresponds with that of DeLong v. Miller, 285 Pa. Super. 120, 426 A.2d 1171 (1981), where the Superior Court of Pennsylvania held that the defendant, who was driving his car to the fire house in response to a fire alarm when he struck the plaintiff, who was directing traffic near the fire house, was acting in the course of his employment and was therefore immune from suit. The court stated:
“[O]ur cases have held that volunteer firemen injured en route while responding to an alarm are entitled to compensation under the Act. [Citations omitted.] These cases recognize that because the unique character of the employment requires prompt reaction to an alarm, a volunteer fireman is in the course of his employment when he leaves his home in response to an alarm.” 285 Pa. Super, at 123.
See also Le Febvre v. Workmen’s Comp. App. Bd., 69 Cal. 2d 386, 388, 71 Cal. Rptr. 703, 445 P.2d 319 (1968), which held:
“As a volunteer fireman whose duties were to respond to calls to fight fires at any location within the entire district and to attend evening drills and meetings twice each month at such locations as might be designated from time to time, Le Febvre’s employment cannot be viewed as having a regular headquarters or office where he was regularly required to report in order to perform his duties or before setting out on his assigned tasks. Instead, from the moment he left his home, or any other point from which he might have been summoned, to engage in firefighting or in training drills in the district, he was acting within the scope of his employment by the volunteer fire department. Accordingly, the fact that he met his death while traveling on the public highway en route to an evening drill does not bring the going and coming rule into play. The travel was plainly required by the employment, the travel risk was incident to the employment, and Le Febvre’s death is compensable. [Citations omitted.]”
Had we had the opportunity to rule prior to the legislative amendment to K.S.A. 44-508(f), we would have determined the going and coming rule did not apply to volunteer firefighters responding to an emergency. As such, the legislative amendment is only a clarification of a possible ambiguity in the law, and the presumption that the legislature intended to change the law by enacting the amendment does not apply.
Furthermore, the legislative history of the 1996 amendment supports our determination that the amendment was meant to merely clarify the law. It is clear that the amendment was proposed in response to the factual situation underlying this case. Patrick Collins, Fire Chief of Riley County Fire District #1, stated the Riley County Counselor had opined that Soupene was not an employee because he had not reached his place of employment. Chief Collins was not in agreement and stated in part: “These valiant individuals respond from wherever they happen to be; whether they are in bed asleep, just arriving home from work or even responding from their jobs that provides their livelihood. ... In actuality their response began when the volunteers left their work, home or family.” Minutes of the House Business, Commerce, and Labor Committee, March 13, 1996, attachment 4. See Testimony of Patrick Collins, Minutes of the Senate Committee on Commerce, February 13, 1996.
In a report to the House Business, Commerce, and Labor Committee, the Workers Compensation Advisoiy Council stated: “[T]he statute should be amended to clarify that volunteer firefighters would be covered by the Workers Compensation Act when responding to afire alarm.” Report to the House Business, Commerce, and Labor Committee, March 12, 1996.
The legislative history makes it clear that while the present case sparked the controversy, volunteer firefighters responding to an emergency thought they were covered by the Act and wanted specific legislative wording to confirm this belief. Even though no judicial decision was ever rendered to confirm or reject such a position, volunteer firefighters quickly mobilized to seek enactment of legislation which would confirm their coverage under the Act when responding to an emergency. As such, the 1996 amendment to K.S.A. 44-508(f) merely clarified existing law and did not change it.
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|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Salvatore A. (Tim) Scimeca, of Wichita, an attorney admitted to practice law in Kansas. The Kansas Board for Discipline of Attorneys found that respondent violated a number of the Model Rules of Professional Conduct (MRPC), and respondent filed exceptions to the final hearing report, seeking modification of the sanction recommended by the panel.
A formal hearing before a panel of the Kansas Board for Discipline of Attorneys was held on October 23 and 24, 1997. The Disciplinary Administrator appeared by Marty Snyder, Deputy Disciplinary Administrator, and respondent appeared in person. The formal complaint filed against respondent by the office of the Disciplinary Administrator contained 12 counts. The first eight counts alleged that respondent charged various clients an unreasonable fee, in violation of MRPC 1.5 (1997 Kan. Ct. R. Annot. 289). In addition, there are allegations in these counts that he failed to refund expense deposits, MRPC 1.16(d) (1997 Kan. Ct. R. Annot. 324); faded to tefi a DUI client that the client could have applied for diversion without an attorney, MRPC 1.16(d); failed to act with reasonable diligence and promptness in representing a client, MRPC 1.4(a) and (b) (1997 Kan. Ct. R. Annot. 282); failed to keep a client informed of the status and substance of her case, MRPC 1.4; endorsed checks so as to attempt to make an improper agreement that would prospectively limit his liability and engaged in fraudulent conduct by charging fees after his representation was terminated, MRPC 8.4 (1997 Kan. Ct. R. Amnot. 366). Count 9 alleged that respondent used a deceptive and fraudulent retainer agreement with clients, MRPC 8.4. Counts 10 and 11 alleged that respondent placed advertisements that did not contain the name of a lawyer who was responsible for the content, MRPC 7.2(d) (1997 Kan. Ct. R. Annot. 358). Count 12 alleged that respondent’s conduct when discussing with the prosecutor and trial judge the sentencing of a criminal defendant he represented violated MRPC 3.5(d) (1997 Kan. Ct. R. Annot. 341), MRPC 8.2(a) (1997 Kan. Ct. R. Annot. 364), and MRPC 8.4.
The panel made the following specific findings as to respondent’s retainer agreements:
“4. The Agreements provided for an attorney fee retainer in a specified amount and provided:
‘This attorney fees retainer is a minimum fee and is not refundable. In other words, regardless of what happens in the above matter, this Attorney Fees Retainer is owed to Attorney.’
“5. The Agreement also generally provided for an expense retainer in a specified amount and provided:
T understand and agree that once the above expense retainer is consumed, Attorney has the right to ask for and receive an additional expense retainer in an amount reasonabl[y] commensurate with the amount of additional expense funds needed to effectively represent Client. I understand and agree that should there be any funds left in this expense retainer at the conclusion of the above matter, that Attorney will return these funds to Client, if there are not attorney fees due in excess of the amount above attorney fees retainer.
‘In the eventuality that there are such excess attorney fees due, Attorney may apply any remaining expense fees on said excess attorney fees.’
“6. The Agreements provided the following regarding attorney’s rates:
‘Attorney’s hourly rate is $170.00 per hour for all types of legal activity including but not necessarily limited to the following: office conferences, research, telephone conferences with any person including client and other individuals, in-court time, travel time to and from any court appearances or setting, and depositions. Attorney’s time shall be kept and maintained at minimum increments of XA horn-.’
“7. The Agreements provided for separate billing for legal secretarial time as follows:
‘Attorney’s legal secretaries’ hourly rate is $40.00 per horn for all types of legal secretarial activity including but [not] necessarily limited to office conferences and telephone conferences with any person including client and other individuals. Legal secretaries’ time shall be kept and maintained at minimum increments of Vi hour.’
Notwithstanding this provision, Respondent did not routinely bill for secretarial time. However, as found below, the billing statements in the record do evidence occasional separate charges.
“8. Some of the Agreements provided for associate attorney time at an hourly rate reduced from that of Respondent and for legal assistant time. With respect to each such person, the Agreements provided that time ‘shall be kept and maintained at minimum increments of Vi hour.’
“9. Generally, Respondent requested payment of both the attorney fee retainer and expense retainer at the time of the execution of the Agreement. The attorney fee retainer generally was deposited to the Respondent’s office account. The expense retainer was deposited to a trust account.”
In several instances, the panel found the client was required to pay a nonrefundable retainer and/or a nonrefundable expense retainer. Most also signed promissory notes for the payment of the fee or expenses. Several complaints involved respondent’s charging unreasonable fees to clients who were referred to him by the Lawyer Referral Service. Carolyn Woods was such a client.
“The Lawyer Referral Service required Respondent to provide an initial consultation for the first 30 minutes at a $15.00 flat fee. During the initial visit, Ms. Woods was given lengthy forms to fill out which took her 30 minutes to do. The forms required credit references, savings and checking account information and other information which was irrelevant to the representation. She indicated to Respondent’s legal assistant that she was looking for an attorney who would take her case on a percentage basis. At the beginning of her interview with Respondent, she informed him that she had only $30.00 and that she could discuss her case with him in 30 minutes, since she had already gone over it with his legal assistant, and was hoping to be represented on a percentage basis. After a 1 hour and 15 minute conference with Respondent, Ms. Woods declined Respondent’s offer to further investigate the case under proposed billing arrangements. Respondent, while Ms. Woods waited in his office, prepared aletter terminating representation, even though Ms. Woods had not retained Respondent. He billed her $210.00 for the consultation. She paid him the $30.00 which she had, and Respondent required her to sign an agreement to pay $180.00 at the rate of $25.00 every two weeks.”
As to respondent’s altercation with Judge Pilshaw, the panel found:
“The Honorable Rebecca Pilshaw is a district court judge in Sedgwick County. Respondent appeared before her representing an individual criminal defendant who had been charged in the sexual assault of a six year old. Respondent’s client [pled] nolo contendere to the charges, and the [S]tate proceeded to enter a recitation of the facts that would have been established had a full trial been held. Following Respondent’s identification of an additional individual involved in the criminal conduct, Judge Pilshaw informed Respondent and his client of her intent to make an upward departure on the sentencing guidelines. Respondent attempted to argue and assert additional information on the record concerning the intent to depart three times after the judge announced termination of the hearing and that they were in recess. Within three to five minutes after the hearing, the judge’s administrative [aide] informed Judge Pilshaw that Respondent wanted to meet with her in the presence of Ms. Margaret Melntire, the Assistant District Attorney. The judge agreed to meet with counsel in chambers. The judge explained her reasons for departure, and Respondent became very angry and irate. He was very loud and yelled at the judge concerning her behavior. The judge ordered Respondent and the district attorney to leave the office. Ms. Melntire departed, but Respondent, after starting to leave, pulled the office door shut with him on the inside of the office. He then became even angrier, was physically shaking, was red, and stood very very close to the judge, telling her that she was unfit to be a judge. The judge was convinced that she would be hit if Respondent did not leave the office. After being yelled at by Judge Pilshaw, Respondent eventually left. Judge Pilshaw’s administrative [aide] observed part of the confrontation. Roth she and the assistant district attorney testified consistent with Judge Pilshaw’s recollections.
"... Respondent neither confirmed nor controverted the testimony of the three witnesses. He testified to an absence of memory of the specific events to which the other witnesses testified. During the hearing, he apologized to each of the three witnesses who were involved in the incident. However, the Panel, based upon its observations of Respondent, find[s] the apologies not to be sincere. The apologies were made long after the incident in a setting where Respondent obviously believed he would benefit from having apologized. Respondent was not remorseful. Respondent failed to acknowledge the extent of his misconduct, apologizing for whatever conduct may have been perceived as objectionable to those involved. Respondent’s request during the hearing that each of the witnesses forgive him for whatever may have been wrongful in his conduct and speech was inappropriate.”
The panel reached the following conclusions:
Count 1 Respondent charged an unreasonable fee. MRPC 1.5(a).
Count 2 Respondent charged an unreasonable fee and failed to refund an unearned expense deposit. MRPC 1.15(b) (1997 Kan. Ct. R. Annot. 316) and 1.16(d).
Count 3 Respondent charged an unreasonable fee. MRPC 1.5.
Count 4 Allegations not supported by clear and convincing evidence.
Count 5 Allegations not supported by clear and convincing evidence.
Count 6 Allegations not supported by clear and convincing evidence, except that respondent billed the client for secretarial time. MRPC 1.5.
Count 7 Respondent charged an unreasonable fee. MRPC 1.5.
Count 8 Respondent refused to return advance payments of unearned fees, endorsed checks so as to attempt to make an improper agreement prospectively limiting his liability, and charged fees after his representation was terminated. MRPC 1.8(h) (1997 Kan. Ct. R. Annot. 301), 1.15, and 8.4.
Count 9 Respondent’s attorney retainer agreement provided for nonrefundable retainers, charged for secretarial services, and used .25 hours as the minimum billing unit, which resulted in clients being charged for time not spent on them. In connection with the promissory notes he had clients execute, respondent violated disclosure requirements for consumer credit. Respondent “engaged in dishonesty, deceit, and misrepresentation regarding ethical billing practices when dealing with his clients, who were unsophisticated consumers.” MRPC 1.5, 1.15, 1.16(d), and 8.4(a) and (c).
Count 10 Respondent placed an advertisement without the required attorney’s name, but the panel regarded it as a mere technical violation. MRPC 7.2(d).
Count 11 Respondent placed an advertisement without the required attorney’s name, but the panel regarded it as a mere technical violation. MRPC 7.2(d).
Count 12 Respondent “was verbally abusive, physically threatening, and utterly and completely disrespectful to Judge Pilshaw.” MRPC 1.5, 1.8(b), 1.15(b), 1.16(d), 7.2(d), 8.2(a), and 8.4(c) and (d).
With respect to the sanction, the hearing panel found:
“Respondent has breached duties owed to his clients (by mishandling client property), to the general public (by engaging in conduct which was fraudulent), to the legal system (by engaging in improper conduct with respect to Judge Pilshaw), and to the legal profession (by violating ethical standards relating to advertising and fees). These violations are of varying degrees of severity. However, considering the violations as a whole and upon giving significant weight to the Respondent’s violations of his duty to the legal system, the Panel finds that Respondent should be indefinitely suspended from the practice of law.”
The ABA Standards relied on by the panel provided:
“Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.” ABA Standards for Imposing Lawyer Sanctions § 4.12 (1991).
“Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.” § 4.62.
“Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.” § 7.2 (1992 amendments).
The panel found the following seven aggravating factors to be present in this case:
• prior disciplinary offenses in which respondent was sanctioned by published censure. The sanction was based upon violations similar to the ones in the present case.
• selfish motive
• multiple offenses
• refusal to acknowledge wrongful nature of conduct
• vulnerability of victim (unsophisticated consumers of limited means)
• substantial experience in the practice of law
• indifference to making restitution
The panel found the following two mitigating factors to be present:
• personal or emotional problems
• previous good character and reputation in the community The panel concluded that the aggravating factors outweighed the mitigating factors. Providing further reasons for its concluding that respondent should be suspended, the panel added:
“Respondent’s presentation and testimony was evasive, inconsistent, and not credible. Respondent’s conduct during the hearing supports the Panel’s decision that Respondent should not be permitted the privilege of representing clients. Although the Panel concludes that disbarment could be sustained under the circumstances presented, the Panel declines to recommend this censure because of Respondent’s mental illness and family circumstances.”
With regard to the sanction of probation, which respondent seeks in this matter, the hearing panel stated:
“The Respondent proposed to the Panel a plan of probation. After hearing the evidence, the Panel concluded that Respondent’s situation does not meet the standards for suspension of sanction as set forth in In rejantz, 243 Kan. 770, 763 P.2d 626 (1988). There are no unique circumstances. Further, Respondent has not in the opinion of the Panel fully admitted his misconduct, either to his clients, to Judge Pilshaw, or to the Panel. In fact, despite prior disciplinary matters relating to veiy similar conduct, the prior findings of the Wichita Bar Association Fee Dispute Committee, and the advice of the Disciplinary Administrator’s office, Respondent continued to attempt to defend his unethical conduct by testimony which was not responsive to the questions presented, inconsistent and lacked credibility. He made restitution of excessive fees and expenses only when required to do so. His apologies to Judge Pilshaw and others involved in that incident did not appear to the Panel to be sincere. Although Respondent has commenced professional counseling, which is continuing, the Panel concludes, based upon the testimony of Respondent’s psychiatrist, that a significant period of time will pass before Respondent could be sufficiently recovered from his depression to engage in the practice of law without significant risk to his clients, the public, the legal system, and the legal profession. Respondent’s depression significantly impacts most, if not all, aspects of his legal practice, and monitoring would, in the opinion of the Panel, be an insufficient safeguard.”
According to respondent, he took 19 exceptions to the panel report, which we will address.
The hearing panel made the following finding of fact:
“20. At the hearing, Respondent offered the testimony of Abdul Wadud, M.D. in support of mitigation and his proposed supervised plan of probation. Respondent has been a patient of Dr. Wadud since January 25, 1997, but has known Respondent since February 28,1992, when Respondent’s son needed psychiatric help. Dr. Wadud explained his diagnosis of Respondent’s depression, the medication he prescribes for Respondent, and the course of treatment. Dr. Wadud declined to testify that the major depression caused the incident with Judge Pilshaw. According to Dr. Wadud, Respondent needs at least another two to three years of intensive therapy and continued medication.” (Emphasis added.)
Respondent takes exception to the italicized portion of the above finding of fact.
The hearing panel’s finding is correct in that Dr. Wadud shied away from the word “caused.” The gist of his testimony, however, was that respondent was suffering from serious depression at the time of the incident and that a depressed person is apt to act in socially unacceptable ways due to reduced social and self-awareness. He also testified that one of the ways respondent typically manifested his diminished awareness was by getting “right in your face.”
The panel’s “half-empty” view of the psychiatrist’s testimony may have been caused by respondent’s raising expectations too high. In introducing his witness, respondent told the panel that one of the purposes for which Dr. Wadud’s testimony was being offered was “the cause of the incident with Judge Pilshaw.”
In a letter to this court, which is dated April 20,1998, Dr. Wadud stated:
“The Hearing Panel did not understand my presentation on depression and assumed that the depression was not the cause of his behavioral problems. I did not decline to say that major depression caused the incident with Judge Pilshaw. As a matter of fact, his major depression DID cause this incident with Judge Pilshaw. If Mr. Scimeca were not depressed, this would NOT have happened. I also believe that if he were not depressed for such a long time, he would not have gotten himself in financial and legal predicaments.”
Respondent also contends that the panel misconstrued the testimony of Dr. Wadud on whether respondent is fit to continue practicing law. Although not clearly specified by respondent, it appears that the following portion of the panel’s conclusion is what he complains of:
“Although Respondent has commenced professional counseling, which is continuing, the Panel concludes, based upon the testimony of Respondent’s psychiatrist, that a significant period of time will pass before Respondent could be sufficiently recovered from his depression to engage in the practice of law without significant risk to his clients, the public, the legal system, and the legal profession.” (Emphasis added.)
The Disciplinary Administrator contends that “respondent’s lack of recollection and insight regarding the treatment of his clients and Judge Pilshaw by the date of the hearing were the basis for the panel’s determination that he is unable to practice law cur rently.” The portion of the panel report that is quoted in the preceding paragraph, however, shows the panel’s reliance on Dr. Wadud’s testimony.
. Dr. Wadud testified that at the time of the hearing, he saw no reason why respondent could not practice. In his opinion, respondent needed to continue therapy and needed some supervision. With continued therapy and some supervision, he would be capable of carrying out his professional responsibilities. Dr. Wadud recommended that respondent “continue his treatment for at least two to three years.”
The panel’s conclusion cannot reasonably be drawn from Dr. Wadud’s testimony. If there is other evidence in the record that would reasonably support it, the Deputy Disciplinary Administrator has not brought it to our attention.
Respondent next contends that the panel misconstrued his testimony in finding that his apologies at the hearing were not sincere, that he was not remorseful, and that he failed to acknowledge the extent of his misconduct, apologizing for whatever conduct may have been perceived as objectionable to those involved. Respondent complains of the following finding from the panel report:
“22. Respondent neither confirmed nor controverted the testimony of the three witnesses. He testified to an absence of memory of the specific events to which the other witnesses testified. During the hearing, he apologized to each of the three witnesses who were involved in the incident. However, the Panel, based upon its observations of Respondent, find [sic] the apologies not to be sincere. The apologies were made long after the incident in a setting where Respondent obviously believed he would benefit from having apologized. Respondent was not remorseful. Respondent failed to acknowledge the extent of his misconduct, apologizing for whatever conduct may have been perceived as objectionable to those involved. Respondent’s request during the hearing that each of the witnesses forgive him for whatever may have been wrongful in his conduct and speech was inappropriate.”
The event in question is respondent’s conduct toward Judge Pilshaw. The three witnesses who testified at the hearing about the incident were Judge Pilshaw, Laura Roberts, who is the judge’s administrative assistant, and Margaret Mclntire, the prosecutor. The incident occurred in February 1997; the hearing took place 8 months later in October 1997.
Respondent apologized to Judge Pilshaw and Mclntire during his opportunity to cross-examine them, and his apology to Roberts also was made during the hearing and transcribed. The apologies are quite lengthy.
Respondent asked Judge Pilshaw and Mclntire to forgive him, and the panel expressed its belief that the requests were inappropriate. Under the circumstances, not only in public but during a hearing convened for the purpose of determining whether respondent’s conduct warranted sanctions, Judge Pilshaw and Mclntire might have found it awkward to refuse. Contrary to the panel’s finding, however, it does not appear that respondent asked Roberts to forgive him.
The verifiable aspects of the finding appear to be accurate. The aspects of the finding that respondent most strenuously objects to, however, cannot be verified from a transcript. The panel concluded, “based upon its observations of Respondent,” that the apologies were not sincere. The panel also was of the opinion that respondent “was not remorseful.”
Respondent contends that the panel erred in finding “[t]here is clear and convincing evidence that Respondent engaged in dishonesty, deceit, and misrepresentation regarding ethical billing practices when dealing with his clients, who were unsophisticated consumers.”
The unethical billing practices cited by the panel were (1) charging for secretarial time, (2) using .25 hour as a minimum billing unit, and (3) requiring nonrefundable retainer fees. The gist of respondent’s argument with regard to these practices is that he was unaware that they might constitute ethical violations.
(1) “Respondent, at the time that the secretarial billing language was in the Attorney Fee Retainer Agreements, was unaware that such language and even collecting for such services was per se unethical in Kansas.” He points out that he had not intended to deceive — that the fee agreement he asked clients to execute expressly provided for his charging for services of secretaries.
(2) Respondent states that he “had no intent to deceive or defraud” in using the .25 hour billing unit. Instead, he states, his “intention in billing .25 increments was not to bill for minimal amounts of time.” At the hearing, respondent testified, “I know that there are many, many attorneys, many firms that bill at a quarterly hour, because I’ve discussed this matter with other attorneys.” In answering follow-up questions, however, he conceded that he knew of no one who was currently using .25 hour increments.
(3) Respondent asserts in his brief that he has eliminated the nonrefundable language with regard to the retainer fee. An attorney retainer agreement without the nonrefundable retainer fee provision was admitted at the hearing by stipulation of the Disciplinary Administrator. Respondent points out that neither rules nor case law expressly prohibit nonrefundable retainers. It should be noted, however, that he stipulated at the hearing “that nonrefundable unearned retainers are prohibited by the Kansas Comment to Rule 1.5 and by Rule 1.16(d).” Finally, he emphasizes that he never intended “to keep an unearned fee.” (Emphasis added.) He asserts that in “the exercise of good judgment” he would decide whether a retainer fee should be refunded. The examples he gave of instances when “good judgment” would dictate refunding the fee were when the client decided, before respondent had spent any significant amount of time on the matter, not to pursue it. In such cases the refund would be “the full retainer less whatever actual time” he had spent on it.
Respondent claims the panel erred in finding that he billed a client, Ms. Phillips, for services subsequent to termination by the client and that conduct was fraudulent, in violation of MRPC 8.4(c). At the hearing and before this court, respondent maintains that he had no intent to defraud the client. At the hearing, he said that he was entitled to a $5,000 fee because the agreement provided for a minimum fee of $5,000. He was unable to point to any language in the agreement, though. According to respondent, because charges “billed” after Phillips terminated his representation did not increase the total amount to more than $5,000, they were irrelevant to the amount of the fee owed by the client. With regard to post-termination expenses being billed to the client, respondent testified, “[T]he only explanation I have is probably what happened was there was delay of posting of certain expenses.” He further testified that the client was not billed for the expenses.
Respondent states that he did not know better: “[T]here was no intent to defraud Ms. Phillips as of [sic] these additional expenses were incurred primarily, if not all, in connection with wrap-up matters. . . . [I] . . . thought that [I] could charge for necessary wrap-up expenses even after termination . . . .” He further states that now he realizes that such charges are improper, and he “did agree to send a refund check on the attorney fee retainer of $475.00.”
Respondent complains of the panel’s finding that the following aggravating factor applies to this case: “Refusal to Acknowledge Wrongful Nature of Conduct. Despite Prior Discipline and Arbitration Panel Decision, Respondent Continues to Fail to Acknowledge the Wrongful Nature of His Billing Practices.”
Respondent contends that he has made changes in his billing practices and that his making those changes is evidence that he recognized the problems. He lists six improvements he has made: He removed the following provisions from his fee agreement form:
1. Nonrefundable attorney fee.
2. Fee for secretarial time.
The form of retainer agreement that respondent offered into evidence does not contain either of the provisions mentioned. The exhibit was offered and admitted at the beginning of the hearing as part of a stipulation. Respondent does not direct the court’s attention to any testimony about the agreement form.
3. Respondent testified that if the change could be accomplished using his existing computer system, he would switch from .25 to .10 hour billing increments.
He offered as his reason for doing so, not that he believed there was a problem with using the .25 hour unit, but that “I just don’t want any questions raised about, you know, how much time was actually spent. I really don’t.”
4. He reduced the amount charged on hourly rate cases or cases where the retainer would not cover the fee.
Respondent testified that the nature of his practice kept him out of the office a good deal of the time so that he often did not care fully review billing statements. His remedy was to “try to make a reduction for most every client” in these categories.
5. He is using more flat, fixed fees.
6. He has adopted a final, follow-up appointment at no charge to the client to discuss client satisfaction and financial matters.
Respondent next complains of the panel’s finding that the following aggravating factor applies to this case: “Indifference to Making Restitution. Respondent Resisted Complying With the Arbitration Orders Concerning Restitution.”
Respondent asserts: “This finding is not supported anywhere in the record.” Respondent was the only witness who testified on the subject of his billing practices and his response to arbitration decisions. He testified with regard to Shelley Herrington’s fee complaint that he repaid her “within a reasonably short period of time” after the arbitration decision. The exhibits include two arbitration decisions, but there does not appear to be anything among the exhibits that would indicate how respondent responded to the decisions.
Respondent next complains of the italicized concluding remarks of the panel:
“Overall the factors in aggravation outweigh those in mitigation. In addition, the Panel notes that Respondent’s presentation and testimony was evasive, inconsistent, and not credible. Respondent’s conduct during the hearing supports the Panel’s decision that Respondent should not be permitted the privilege of representing clients. Although the Panel concludes that disbarment could be sustained under the circumstances presented, the Panel declines to recommend this censure because of Respondent’s mental illness and family circumstances.”
Respondent urges the court to take into account the difficulties inherent in representing himself. Those difficulties, according to respondent, included intense examination by the Deputy Disciplinary Administrator, his inability to testify and take notes simultaneously, and having to do “on direct examination what his counsel would have done on cross-examination.”
The panel noted elsewhere that respondent neither confirmed nor controverted the testimony of the witnesses to the incident with Judge Pilshaw. He suggests that this may be a source of the panel’s negative impression of his hearing presentation, and he asserts that it is not true that he neither confirmed nor controverted their testimony. The portions of the questioning and testimony he cites in support of his assertion concern which door in Judge Pilshaw’s office suite was involved in the incident. The substance of the incident was his disrespectful and threatening conduct to the trial judge, not which door was being opened and closed, This argument tends to support the panel’s impression of respondent’s being evasive.
Respondent also raises the evidence of charging for secretarial time as a matter that may have raised the panel’s concern about his credibility. He concedes that he testified that he had never charged for secretarial time, but there were exhibits that showed otherwise. He attempts to minimize the detrimental effect of this inconsistency by stating that his billing for secretarial time “occurred on an isolated basis.” The evidence, however, showed that it occurred on an occasional, rather than on an isolated, basis. Moreover, the attorney fee agreement he had clients execute contained a provision for charging for secretarial time. .
Respondent complains of the panel’s conclusion that his conduct toward Judge Pilshaw violated MRPC 8.4(d). MRPC 8.4(d) provides, in part: “It is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice. . . .” Respondent contends that this rule does not apply to the incident with Judge Pilshaw because his “statements and misconduct occurred in Judge Pilshaw’s chambers” rather than during a courtroom proceeding. Moreover, respondent’s argument continues, there is no evidence that his client was harmed by the incident. In addition, respondent takes issue with the position stated at the hearing by the Disciplinary Administrator that his intent to intimidate and his intimidating Judge Pilshaw constitute conduct that is prejudicial to the administration of justice.
The Disciplinary Administrator notes that the annotations to Rule 8.4 do not contain any other cases involving verbal or physical threats against a judge. The Disciplinary Administrator also notes that most of the annotations are of cases involving “acts or omissions by an attorney resulting in prejudice to their client’s legal matters.” In the Disciplinary Administrator’s view, nonetheless, it simply is apparent that respondent’s conduct was prejudicial to the administration of justice. The most convincing aspect of the argument is that respondent attempted to physically and mentally intimidate Judge Pilshaw because of the duties she performed as a judge.
Respondent also complains of the panel’s denying his request for a continuance of the panel hearing to allow the in-person testimony of Charles D. Anderson, respondent’s proposed probation supervisor. Respondent took exception to the panel’s rulings set out in the following paragraph of its report:
“Ms. Baker states for the record that Respondént moved for a continuance or, in the alternative, to recess at the conclusion of the hearing set for October 23 and 24, 1996, to allow in person testimony of Charles D. Anderson regarding Respondent’s proposed probation plan. During a telephone conference with the Panel, Ms. Snyder, and Respondent, the request for continuance was denied and the Panel deferred ruling on the request to leave the record open to allow later testimony of Mr. Anderson. Before the close of hearing, the Panel denied Respondent’s motion to take Mr. Anderson’s testimony at a later date because of the Panel’s conclusion that probation would not be considered in this case.”
Respondent cites case law authority involving requests for continuances in civil and criminal trials. He relies on State v. Jones, 226 Kan. 503, Syl. ¶ 7, 601 P.2d 1135 (1979), for the proposition that it is an abuse of discretion for the trial court to refuse to grant a continuance so that the defendant could produce a material witness. In the present case, respondent sought a continuance so that he could produce Charles Anderson as a witness on the subject of supervised probation as the penalty for respondent’s misconduct. Jones must be distinguished from the present case on the ground that the witness in the criminal trial was a material witness. In the present proceedings, the panel ultimately overruled respondent’s request to leave the record open to accommodate Anderson on the ground that Anderson’s testimony was irrelevant. A proposed plan of supervised probation was the only subject on which Anderson would have testified. By the time it had heard the other witnesses, the panel had concluded that supervised probation would not be an appropriate sanction. Thus, Anderson was not a material witness.
Respondent also contends that he should have been given an opportunity to produce Anderson as a matter of due process. He argues that the panel should not have concluded “even before the Respondent’s all important closing argument” that probation was not a possible sanction. He cites no authority for the proposition. The panel’s narrowing the possible sanctions after hearing all the “liability” witnesses and seeing all the exhibits does not constitute a deprivation of respondent’s right to be heard.
Further, respondent contends that the sanction of indefinite suspension recommended by the panel is too harsh. It was, the panel’s opinion that disbarment would be an appropriate sanction for respondent’s misconduct. It declined to recommend disbarment, however, “because of Respondent’s mental illness and family circumstances.”
The panel rejected the possibility of supervised probation as a sanction on the ground that “Respondent’s situation does not meet the standards for suspension of sanction as set forth in In re Jantz, 243 Kan. 770, 763 P.2d 626 (1988).” In Jantz, the unique circumstances were as follows:
“The conduct complained of here took place within a very short period of time; there were no complaints against respondent prior to these incidents. These took place when respondent was under severe emotional distress, caused by the terminal illness of his father and his own financial problems. Mr. Jantz admitted his misconduct to the judge promptly. He has admitted the misconduct to his client and to the bar where he practices. He made prompt restitution of the funds, which were not at that time due the client but were paid by him into the hands of the clerk of the district court, to await further order of the court. By the time disciplinary proceedings were underway, Jantz had already made restitution, had commenced professional counselling (which is continuing), and had prepared a plan for retirement of his debts and financial obligations. We were told at the time of oral argument that he has made a substantial reduction of his obligations since the panel hearing in March of this year. His practice is growing, indicating that he is accepted by the members of the bench and bar as well as the residents of the community where he resides and practices.” 243 Kan. at 774-75.
Jantz, on one single occasion at a very stressful time, committed a serious violation of a single client’s trust. Jantz then admitted his mistake, made restitution, and took positive steps to alleviate and cope with the stressful elements in his life.
Respondent argues that he, too, has unique circumstances warranting probation and supervision. He urges the court to view the following as his unique circumstances: (1) he suffers from depression and is treating it; (2) he has filed personal and business bankruptcies; (3) his son suffers from, a head injury; (4) he has apologized to Judge Pilshaw; and (5) the incident with Judge Pilshaw was an isolated incident.
What the court called “unique circumstances” in Jantz are circumstances from which it reasonably could be inferred that the attorney s misconduct, was a one-time response to adversity and that it would be highly unlikely that he would repeat his mistake. The circumstances listed by respondent, other than the uniqueness of the incident with Judge Pilshaw, do not strongly suggest that his misconduct will not be repeated. Moreover, respondent has heavily edited his circumstances in coming up with the list, and some of the omitted circumstances are in high contrast with Jantz’s circumstances. For instance, the panel found that respondent had engaged in professional misconduct on a number of occasions, in contrast with the single misdeed by Jantz. Notwithstanding that Dr. Wadud’s testimony does not support the panel’s finding that respondent was mentally unfit to practice law, the panel’s rejection of respondent’s proposal for probation is supported by the record.
Respondent ¿so argues with the panel’s statement that “[h]e made restitution of excessive fees and expenses only when required to do so.” He directs the court’s attention to his testimony about two instances in which he made refunds without the client’s filing a complaint. He does not mention the instances in which clients filed complaints. Finally, respondent argues that there is ample precedent in the court’s own opinions for ordering probation for him.
An attorney who receives advance funds belonging to a client, either as a fee or expenses, must keep those funds separate and not commingle them with other funds. The key question is whether an advance payment belongs to the client or the attorney. If the funds are paid to the attorney to be used for a specific purpose, they must be used for that purpose. In such a situation, the attorney acts as a fiduciary for his or her client. Where the funds are ad vanced by the client for costs or expenses, they must be kept in a trust account until used for those purposes. As noted in the ABA/ BNA Lawyers’ Manual on Professional Conduct, pp. 45:109-11 (1998), the status of advance fees can be more complicated:
“The basic question is, Whose money is it? If it’s the client’s money in whole or in part, it is subject to the trust account requirements. If it is the lawyer’s money, placing it into a trust account would violate the anti-commingling rule.
“In general, analysis turns on when the money is deemed ‘earned,’ for once money is earned it is the lawyer’s. The majority of courts and ethics committees addressing the problem have looked beyond the terminology by which the fee is characterized, and have determined that fee advances are not earned when paid, and therefore must be deposited into the trust account. [Citations omitted.]
“In the forefront of the debate on advance fee payments is the problem of the ‘non-refundable’ retainer. A non-refundable retainer ‘allow[s] an attorney to keep an advance payment irrespective of whether the services contemplated are rendered.’ In re Cooperman, 591 N.Y.S.2d 855 (N.Y. Sup. Ct. App. Div. 2d Dept. 1993). While widely used, this kind of arrangement is not immune to criticism.
“A retainer can serve one of two purposes, or some combination of the two. Either it is a fee paid in advance to ensure the lawyer’s availability and to compensate the lawyer for forgoing [sic] the opportunity to be hired by the client’s adversary — in effect, an option — or it is an advance deposit for fees not yet earned. It may also be a hybrid, and thus harder to evaluate.
“Many courts and ethics committees have held that payments made to ensure availability are indeed earned when paid, and therefore belong to the lawyer and are not subject to trust account requirements. [Citations omitted.]”
The parties stipulated before the panel that a nonrefundable unearned retainer is prohibited by MRPC 1.5. We agree. However, the Deputy Disciplinary Administrator would have this court, as a matter of public policy, require all fees advanced by a client to be refundable, regardless of how designated or agreed to by the parties. We decline to do so. The better view is to resolve the question based upon the agreement between the parties. If the contract or agreement between the attorney and the client clearly states that the fee advanced is paid as a nonrefundable retainer to commit the attorney to represent the client and not as a fee to be earned by future services, then it is earned by the attorney when paid and is the attorney’s money. If, on the other hand, the retainer is to be earned by future services performed by the attorney, then it remains the client’s money and subject to MRPC 1.15.
Here, the agreement provided that the retainer was not refundable, was a minimum fee, and was owed to the attorney. Designating the advance fee as a minimum fee contemplates that it must be earned by future services to the client. Respondent had done nothing at that point in time for which the client “owed” him a fee. Absent clear language that the retainer is paid solely to commit the attorney to represent the client and not as a fee to be earned by future services, it is refundable. There was no such language in the agreements respondent entered into with his clients. The panel’s finding that respondent’s “non-refundable” retainer was a fee advanced for services to be performed, and thus subject to the trust account requirements of MRPC 1.15, is supported by the record.
We agree with the Deputy Disciplinary Administrator that billing for quarter hours is not a violation if that time is spent on a client’s business. The violation is in not spending the time billed to the client on the client’s business. Here, respondent clearly billed for time not spent in representing the client. He concedes that his billing practices were improper, and although he claims it was done in ignorance, it is nevertheless a violation of the MRPC.
Respondent does not take exception to the panel’s finding that his conduct toward Judge Pilshaw violated MRPC 8.2(a). He does take exception to the panel’s finding that his conduct violated MRPC 8.4(d) in that he “engage[d] in conduct that is prejudicial to the administration of justice.”
It is not necessary for the improper conduct to occur in the courtroom. The proceedings in chambers are part of the administration of justice. The judge is no less a judge nor the proceeding no less judicial because it occurs in chambers. As stated in the ABA/ BNA Lawyers’ Manual, p. 101:504:
“Under Rule 8.4(d), a lawyer may be found to have engaged in conduct prejudicial to the administration of justice by behaving in a manner that is uncivil, undignified, or inappropriate. See In re Holmes, 921 P.2d 44 (Colo. 1996) (‘undignified, offensive, threatening, and unprofessional’ letters to opponents and court employees); In re Stanley, 507 A.2d 1168 (N.J. 1986) (rude stares at judge, laughing, remarking in undertones, shaking finger at judge); In re Moore, 665 N.E.2d 40 (Ind. 1996) (on way out of judge’s chambers, discussion of case became heated; lawyer responded to suggestion that he was not being truthful by grabbing opposing counsel’s tie and to opponent’s calling him name by hitting opposing counsel so hard it drove him across table); In re McAlevy, 463 A.2d 315 (N.J. 1983) (using obscenities in court).
“Such conduct may be deemed to violate the rule regardless of whether it directly interferes with a legal proceeding. In re Keller, 502 N.W.2d 504 (N.D. 1993).”
We have no difficulty finding respondent’s conduct violated MRPC 8.4(d). It is this conduct which a majority of this court finds most egregious.
We find there is clear and convincing evidence establishing the violations determined by the panel. A majority of the court accepts the panel’s conclusions and recommended sanction of indefinite suspension. A minority would suspend respondent for 1 year.
It Is Therefore Ordered that Salvatore A. Scimeca be suspended indefinitely from the practice of law in Kansas in accordance with Supreme Court Rule 203(a)(2) (1997 Kan. Ct. R. Annot. 201).
It Is Further Ordered that Salvatore A. Scimeca shall make full restitution to complainants prior to the filing of a petition pursuant to Rule 219 (1997 Kan. Ct. R. Annot. 245) and that he comply with Rule 218 (1997 Kan. Ct. R. Annot. 235).
It Is Further Amended that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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